Subchapter M – Inspecting the Uninspected

On September 10th of this year, the President and CEO of the American Waterways Operators (AWO) appeared before the House Subcommittee on Coast Guard and Maritime Transportation and called for finalization by late 2013 or early 2014 of the long-languishing Subchapter M regulations relating to inspection of uninspected towing vessels (UTVs). Thus, after more than a decade of regulatory delays and industry uncertainty, it appears that UTV operators can now bank (very literally) on the reality of mandatory Subchapter M compliance in the very near future.

By way of background, Subchapter M had its beginnings in the 2004 Coast Guard and Maritime Transportation Act, which called for the Coast Guard (USCG) to promulgate rules for the inspection of UTVs. 76 Fed. Reg. 49976 (Aug. 11, 2011). This call for more stringent regulation of UTVs (which for practical purposes includes most inland and “brown water” towing vessels and work boats) was prompted by two high profile incidents – namely (1) the 1993 allision of the towboat MAUVILLA with the Bayou Canot Railroad Bridge on the Mobile River, which resulted in 47 deaths and 103 injuries when the bridge collapsed under the Sunset Limited Amtrak passenger train as a result of damage from the allision; and (2) the 1998 Eads Bridge allision in Illinois, which resulted in $11 million in damages. After several years without any definitive action on this statutory charge, Congress passed another Coast Guard and Maritime Transportation Act in 2010 setting an October 15, 2011 deadline for implementation of final rules for UTV inspection regulations. (Public Law No. 111-281, October 15, 2010).

In that roughly seven-year interim, the USCG was coordinating with and gathering input from numerous industry groups (including the American Bureau of Shipping, AWO, and a congressional Towing Safety Advisory Committee Working Group), to formulate a comprehensive approach to regulating UTVs. This coordination culminated in the issuance of the proposed Subchapter M regulations, which were promulgated via a Notice of Proposed Rulemaking on August 11, 2011, with an original public comment deadline of December 9, 2011 (long after the October 15, 2011 deadline set by Congress for implementation of a final rule).

More than two years down the line, the USCG has still not finalized the Subpart M regulations promulgated in August of 2011, and inland/”brown water” boat operators have been left to hold their breath and ponder the costs as the Subpchapter M sword of Damocles remains hanging over their heads.

Indeed, the implementation costs in terms of both money and manpower for Subchapter M compliance cannot be understated:

The [Subchapter M] rule — one of the most significant for the towing industry since operators were required to be licensed in 1972 — . . . covers about 6,000 towing vessels. Compliance will cost operators an estimated $14 million to $18 million annually over a 10-year phase-in period. Twenty-five percent of a fleet must obtain a certificate of inspection each year.

Dale K. Dupont, AWO Pushes for Subchapter M Final Rule by mid-2014, (Sept. 11, 2013) available at (emphasis added). The USCG itself included a cost analysis of the new regulations in the 2011 proposed rule, which estimated that the regulations will affect 1,059 operators and 5,208 vessels, with a ten-year phase-in present-value cost of well over $100 million. 76 Fed. Reg. 49997 (Aug. 11, 2011). Moreover, from a logistics standpoint, there simply may not be enough capacity for dry-docking facilities available to support an onslaught of Subchapter M compliance inspections whenever the provisions take effect; and even if the capacity exists, securing such facilities in the midst of a Subchapter M compliance bonanza will certainly not be cheap.

These concerns are borne out by the sheer breadth of the proposed Subchapter M provisions, which include 46 CFR Parts 136 through 144, consisting of well over 250 individual regulations addressing a myriad of different areas and specific requirements. Each subpart includes a requirement for a requirement for a towing safety management systems (TSMS) covering the relevant system regulated thereunder. The subparts cover the following general areas, with certain notable specific areas/regulations highlighted (N.B. this is by no means an exhaustive discussion of these highly detailed regulations, and is meant only as a very general overview):

  • 136 – Certification – general preliminary statements (purpose, definitions, various procedures) and certificate of inspection (COI) requirements
  • 137 – Vessel Compliance – general requirements for surveying schedule, issuance/maintenance of COI and TSMS certificates, drydocking schedules, loadlines
  • 138 – Towing Safety Management System (TSMS) – sets forth comprehensive requirements for TSMS (and TSMS certificate, require by every UTV operator), which all UTV operators must implement as per regulations and which are subject (after issuance of an initial TSMS certificate) to mandatory internal annual audits (§138.310) as well as mandatory external audits as follows: (a) of management between the 27th and 33rd month of the 5-year of a vessel’s TSMS Certificate period; (b) of all vessels in an operator’s fleet during the 5-year certificate period (by random selection throughout that period) (§138.315).
  • 139 – Third Party Organizations – delegates enforcement of Subchapter M regulations to recognized classification societies and/or other third-parties approved by the USCG (as the USCG has historically done with other inspected vessels); these third-party organizations are also charged with approving TSMS certificates and externally auditing UTV operators’ TSMS. As a practical matter, there is currently only one classification society (American Bureau of Shipping) authorized by the USCG to inspect vessels, and it is unclear what (if any) other “third party organizations” this section may be referring to.
  • 140 – Operations – including inter alia vessel stability (§140.605) lookout and watch assessment (§144.630, 635), prevention of oil and garbage pollution (§144.655), recordkeeping for towing gear (§144.820), specific requirements for log books and towing vessel records (§§144.900-915). . N.B. violation of regulations under Subpart 140 can lead to criminal penalties and/or license suspensions (§§144.1000, 1005). It also bears noting that under the new Subchapter M regime, former UTVs will now be subject to the same manning requirements as inspected vessels ((46 C.F.R. §§15.401-530). In this regard, the same Notice of Proposed Rulemaking by which the Subchapter M regulations were promulgated also included a proposed overhaul of the regulations at 46 C.F.R. Subpart 15 regarding manning requirements for inspected vessels. See 76 Fed. Reg. 49976, 50004 et seq. (Aug. 11, 2011). Thus, operators of former UTVs must also familiarize themselves with these new manning requirements that have never previously applied to UTVs.
  • 141 – Lifesaving – (self-explanatory)
  • 142 – Fire Protection – (self-explanatory)
  • 143 – Machinery and Electrical Systems and Equipment – including inter alia regulations pertinent to fuel, oil and bilge systems.
  • 144 – Construction and Arrangement, including inter alia stability (§144.315, 415), and verification of compliance with by a domestic registered professional engineer or ABS employee ((§144.25).

As is readily apparent from the above bird’s-eye sketch of Subchapter M, inland and “brown water” operators, as well as the shipyards that design and build the vessels that make up the inland/”brown water” fleets, are well-advised to take time now to familiarize themselves (if they have not already) with the revolutionary changes encompassed in Subchapter M. Perhaps more importantly, operators must begin budgeting now – from both a cash flow and operational/logistics perspective – to allow time to ensure fleet-wide compliance with these sweeping new regulations whenever they go into effect, which by all indications will presumably begin sometime within the next six to eight months.