The U.S. Coast Guard is nearing a decision on whether the much-anticipated towing vessel inspection regulations need an additional round of public debate or whether a final rule can be proclaimed.
Regardless, the next version of the rule is not expected to be published until the second half of 2013 at the earliest.
Coast Guard regulators have reviewed almost 1,300 public comments resulting from the initial release of the proposed Subchapter M rule in August 2011, said Patrick Mannion, the Coast Guard’s senior project manager for the towing vessel rulemaking.
Specialists on engineering, firefighting, manning, licensing and other topics have analyzed the suggestions and their impact on safety and on operators’ ability to conduct business.
“Right now the Coast Guard is finalizing the next step in the rulemaking — whether it is a final rule or a supplemental rule,” Mannion said in late November.
That decision is significant because the choice will determine whether another public-comment period is necessary, said Jennifer Carpenter, senior vice president for national advocacy with American Waterways Operators (AWO).
After studying how vast the changes from the original proposal are, Coast Guard attorneys will rule on whether the next step must be a supplemental notice of proposed rulemaking, which would require another public-comment period, or a final rule with an effective date. A third possibility is an interim final rule, which would have an effective date but could call for additional public comments on certain aspects of the regulation.
In general, the industry is eager to move forward with the nation’s first federal towing vessel inspection regime, which will cover about 6,250 vessels at least 26 feet in length. Still, AWO is not pressuring the Coast Guard to avoid a supplemental proposal and longer, drawn-out process.
“We don’t oppose that,” Carpenter said. “There is no question that this is a really important rule. If we have to choose between ‘right’ and ‘quick,’ ‘right’ is the better answer.”
The Coast Guard may consider publishing an interim final rule plus a supplemental, said Rocky Marchiano, director of maritime compliance with Baker, Lyman & Co. in Metairie, La.
“It’s to the advantage of the Coast Guard and the industry that they issue an interim with a supplemental, because it will allow the industry to move forward with Subchapter M and still allow for further discussion of some hot-spot issues,” Marchiano said.
After the 2011 notice, the Coast Guard received comments from more than 200 people or organizations online, and 150 submitted in writing. Each addressed an average of three or four topics, and the Coast Guard parsed the submissions out into almost 1,300 separate opinions for consideration, Mannion said.
“If we’re going to find a balanced approach to regulating those vessels, we have to make sure we get it right, and that means involving a lot of people,” Mannion said. “Some things likely will change in the rulemaking because those members of the public were able to provide input.”
He said the analysts have considered whether various ideas “can be done in a cost-effective manner and still achieve the goal of safety. … It’s a very large task because many, many folks in the Coast Guard have to evaluate the probity of the changes. It’s a time-consuming endeavor, but it adds tremendous value to the final product.”
Mannion emphasized the role of the Towing Safety Advisory Committee (TSAC) in the process. The panel’s next meeting is March 20 and 21 at the Customs House in New York. Mannion encourages towing vessel operators to attend that meeting, and he said there will be several opportunities to provide input to TSAC subcommittees.
AWO believes the Coast Guard is probably revisiting several major points from the originally proposed rule. For example, stakeholders disagree on whether operators should be offered a choice between an annual Coast Guard inspection — sometimes referred to as the “prescriptive” option — or either of two Towing Safety Management System options. Controversies arose over new equipment and physical requirements, including fully redundant propulsion and steering and also electrical system standards for newbuilds that will move tank barges.
Marchiano said the Coast Guard should consider postponing new mandates on vessel equipment instead of making the new features a precondition for receiving the initial Certificate of Inspection (COI).
“The expectation exists within the industry and within the Coast Guard that the prescriptive solution will be removed. It’s economically unfeasible. … The enhanced-equipment requirements should be phased in. Grant them their COI with a grace period for upgrading the equipment,” Marchiano said. “Both of these make better economic sense.”
After the Coast Guard decides what type of rule to publish next, the new document must undergo review by the Department of Homeland Security (DHS) and Office of Management and Budget (OMB). Before the original 2011 proposed rule was published, the DHS review took two years.
“That is unacceptable,” Carpenter said, urging the Obama administration not to allow such a delay this year. “We just can’t have that this time around.”
After DHS signs off, it’s the budget analysts’ turn. OMB’s review must be completed in 90 days, and OMB always publicly announces the start date of its work. Mariners shouldn’t even bother guessing at a release date until “that 90-day shot clock starts,” Carpenter said.
Considering the reviews that still lie ahead, neither Carpenter nor Marchiano expects the next rule to be published before the second half of 2013.