INTERCEPTING AND INFLUENCING THE REGULATORY PROCESS

By Thomas A. Allegretti, Vice President-Operations, The American Waterways Operators, Inc.

In 1985, the depressed state of the barge and towing industry further emphasized the longstanding need to secure a reasoned and stable regulatory environment for domestic marine transportation. This elusive goal took on greater importance as the dilemma of too many vessels chasing too few cargoes continued unabated. However, without apparent recognition of the industry's precarious economic condition, federal regulatory proposals continued to be generated by the agencies of government, often carrying with them burdensome requirements which threatened the fragile state of barge and towing operations.

In 1986, the industry must pursue sane regulatory stability both as a matter of national maritime policy and through specific efforts in response to individual agency proposals and initiatives. Similarly, the industry must continue to speak out in a national voice to the agencies of government—a voice that calls for a regulatory climate which encourages the efficiency of vessels and waterways operations and recognized the industry's current plight.

Industry efforts in 1985 to intercept and influence the regulatory process produced several notable achievements.

One of the major challenges of 1985 dealt with an issue which had the potential to severely disrupt industry operations and substantially increase industry costs. The statutory recodification of Title 46 of the U.S. Code effected numerous changes characterized as neither substantive nor controversial. One such change was to modernize and standardize the references in Title 46 to licensed "persons" and "officers," to that of "licensed individuals." That single stylistic change threatened the longstanding use of the two-watch system aboard towing vessels.

The two-watch system has for decades been the standard operational practice aboard towing vessels. In 1973, the enactment of the Towing Vessel Operator Licensing Act required for the first time that the operators of non-steam propelled tugs be licensed by the Coast Guard.

That statute also provided that these licensed operators not perform their duties in excess of 12 hours in any 24-hour period, thereby maintaining the use of a twowatch standard.

However, the enactment of the 1973 law soon gave rise to a watchstanding question: were the "licensed operators" of towing vessels also "licensed officers" and therefore subject to the three-watch requirement of the 1915 Seaman's Act? Two administrative decisions in 1974 and 1975 concluded that towing vessel operators were not governed by the three-watch requirement of the Seaman's Act. The first decision was based on the finding that the 12-hour requirement of the 1973 Licensing Act demonstrated the specific intent of Congress with respect to towing vessel watchstanding, and that the threewatch requirement was inconsistent with that intent; the second decision found that licensed "operators" were not "officers," and that the watchstanding rule for "licensed officers" was therefore not applicable.

The intent of Congress reflected in the 1973 Licensing Act, fortified by two separate administrative decisions, was threatened by the stylistic modification of the Title 46 recodification.

Indeed, the initial reaction of the Coast Guard was to conclude that the recodified statute required all licensed personnel on towing vessels, operators as well as officers, to sail under a three-watch system on voyages of 600 miles or more.

AWO formed a working group of its members to pursue this matter with the Coast Guard. This working group of members and staff met with the Coast Guard to present legal memoranda which demonstrated that from the multiple perspectives of statutory construction, legislative history, and administrative interpretation, there was no basis to conclude that the longstanding watchstanding practices employed aboard towing vessels should be changed. The weight of the industry's argument was compelling, and succeeded in persuading the Coast Guard to allow towing vessel operators to continue to utilize the two-watch system. This opinion provides a strong foundation for the continued preservation of reasonable watchstanding requirements on towing vessels.

On another regulatory front, there was a major triumph on the pilotage issue after years of sustained effort. In June 1985, the Coast Guard issued a Final Rule authorizing tug masters, mates, and operators to qualify as pilots of coastwise petroleum tank barges of less than 10,000 gross tons, thereby alleviating the unnecessary and costly burden on operators of these units to use independent first-class pilots.

The genesis of the pilotage issue has much in common with that of the watchstanding controversy.

Specifically, it was driven not by operational needs or safety considerations, but by a technical anomaly in the statutes which created a literal interpretation not envisioned or intended by the Congress or reflected in federal regulation. Indeed, the anomaly in this case is so unintentional and arcane that it escaped public notice and Coast Guard enforcement for more than 40 years.

The Final Rule adopted by the Coast Guard represents a positive step toward reestablishing reasoned operating practices consistent with Congressional intent and with the demonstrated safety record of the coastwise tank barge fleet.

On the issue of licensing, the Coast Guard published its massive proposal to revise and simplify the licensing regulations governing maritime personnel. This Supplemental Notice contains important and extensive changes to the U.S. licensing regime which have a direct and negative impact on the barge and towing industry. Our major concern with the licensing proposal is its attempt to harmonize U.S. regulatory terminology with that of the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW). This harmonization has several serious side effects for the barge and towing industry, not the least of which is the elimination of the oceans endorsement on an operator's license, which has the corollary effect of requiring a threewatch system on towing vessels in ocean service. AWO guided a national campaign of direct advocacy, testifying at a series of public hearings on the licensing proposal earlier this year, to amplify the industry's message that domestic vessel operations should not be disrupted by foreshadinternational conventions which do not govern domestic commerce.

There are encouraging signs that progress is being made on this front.

In June 1985, a Final Rule was issued by the Coast Guard concerning Boundary Lines. This rule achieved the two major AWO objectives: the Boundary Line in the eastern Gulf of Mexico was moved out to 12 miles offshore as it had been in similar waters in the Western Gulf for many years, and in New England, the Seagoing Barge Act Line was consolidated with other regulatory lines into a single Boundary Line.

Obtaining these changes to the original proposal by the Coast Guard required effort on several fronts. In addition to submitting written comments and encouraging other organizations to do the same, AWO commissioned a report which confirmed that U.S. regulatory lines were already a confusing tangle that the Coast Guard proposal was going to make worse. The graphic evidence presented on this issue was instrumental in achieving the industry objective to bring order to the tangle of regulatory lines in the Final Rule. Furthermore, as a part of the effort on this rulemaking, 10 principles were developed that will be useful in evaluating future proposals concerning regulatory lines.

These principles were formally adopted by the Towing Safety Advisory Committee, and recommended to the Coast Guard to guide in the establishment or alteration of any safety or navigation lines in the future.

The troublesome issue of regulating and recovering vapor emissions from vessels took on new urgency in 1985 as several states moved for ward with the development of individual state regulations. Longstanding industry concern with this issue took on clearer form as the potential for disparate state requirements of vapor emission controls on tank vessels became evident. An important corollary concern was that significant safety considerations regarding vapor control systems would not be properly addressed by state regulators with no particular expertise in vessel operations or marine safety.

The effort to secure Environmental Protection Agency jurisdiction over vessel emissions regulation through a federal preemption amendment to the Clean Air Act was not successful. The need for uniform regulations nonetheless remained a critical one. AWO therefore undertook and guided a campaign to rationalize the process of state regulation by urging the Coast Guard to assert its jurisdiction over the safety of vapor control and recovery systems, toward an ultimate goal of standard federal regulations governing the design and safety of these systems. This campaign resulted in the establishment of a National Academy of Sciences Marine Board study to assess the technical, safety, and economic aspects of maritime hydrocarbon vapor control and recovery systems. The study effort will provide important information which should rationalize the piecemeal character of state regulation which now persists.

The efficiency of vessel operations is closely linked to the condition of the system on which the vessels travel. Thus, the regulatory agenda concerning the U.S. Army Corps of Engineers in 1985 included the better scheduling of lock repairs, the provision of more timely information regarding lock closures, bethe placement of mooring cells at appropriate lock approaches, and the more effective use of Corps personnel to keep locks open during freezing conditions. Looking toward 1986, the state of the Corps' waterways program appears uncertain.

While the logjam over new project starts may soon be broken with the enactment of a major new water resources authorization bill, the effect of the Gramm-Rudman deficit reduction bill on waterways programs may be severe.

The year 1985 presented the industry with many challenges; the agenda for 1986 appears to be no less demanding. In addition to the many regulatory proposals which follow us into the new year, there are several more on the horizon which also have the potential to further destabilize vessel operations and which will require the industry's close attention and best talent.

Divining a solution to the persistent overtonnaging which saps the industry's strength, resolving the OSHA/Coast Guard jurisdictional issue for safety and health regulation aboard uninspected vessels and developing a benzene standard that balances the interests of health and commerce, are only the most apparent.

Intercepting and influencing the regulatory process remains a major part of AWO's charter in the industry's behalf. Nineteen eighty-six will surely present many challenges and obstacles to achieving the critical objective of regulatory stability.

However, it is also certain to present opportunities. The barge and towing industry is prepared to meet the challenges, overcome the obstacles, and seize the opportunities which the new year offers.

Maritime Reporter Magazine, page 49,  Mar 1986 Norway

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