[Federal Register Volume 86, Number 10 (Friday, January 15, 2021)]
[Proposed Rules]
[Pages 3899-3903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01058]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 96

46 CFR Parts 71, 115, and 176

[Docket No. USCG-2020-0123]
RIN 1625-AC65


Safety Management Systems for Domestic Passenger Vessels

AGENCY: Coast Guard, DHS.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Coast Guard is evaluating the potential use of Safety 
Management Systems (SMSs) to improve safety and reduce marine 
casualties on board U.S.-flagged passenger vessels. In this document, 
the Coast Guard is seeking public input and responses to specific 
questions on the feasibility, applicability, and nature of SMSs for 
potential use on U.S.-flagged passenger vessels. The Coast Guard may 
use this information to develop a proposed rule regarding SMSs; if so, 
notification of that proposed rule would appear in the Federal Register 
under this docket number.

DATES: Comments and related material must be received by the Coast 
Guard on or before April 15, 2021.

ADDRESSES: You may submit comments identified by docket number USCG-
2020-0123 using the Federal eRulemaking Portal at https://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: For information about this document, 
call or email Lieutenant Kimberly Gates, Vessel and Facility Operating 
Standards Division (CG-OES-2), U.S. Coast Guard, 2703 Martin Luther 
King Jr. Avenue SE, Washington, DC 20593; telephone 202-372-1455, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble

I. Public Participation and Request for Comments
II. Abbreviations
III. Background
IV. Advance Notice of Proposed Rulemaking Discussion
V. Information Requested

[[Page 3900]]

I. Public Participation and Request for Comments

    The Coast Guard views public participation as essential to 
effective rulemaking and will consider all comments and material 
received during the comment period. Your comment can help shape the 
outcome of this rulemaking. If you submit a comment, please include the 
docket number for this rulemaking, indicate the specific section of 
this document to which each comment applies, and provide a reason for 
each suggestion or recommendation.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at https://www.regulations.gov. If you cannot submit your 
material by using https://www.regulations.gov, call or email the person 
in the FOR FURTHER INFORMATION CONTACT section of this advance notice 
of proposed rulemaking (ANPRM) for alternate instructions. Public 
comments are available in our online docket at https://www.regulations.gov, and can be viewed by following that website's 
instructions. Additionally, if you visit the online docket and sign up 
for email alerts, you will be notified when comments or additional 
documents are posted. The Coast Guard will not issue a separate 
response to the comments received, but will carefully consider each 
comment and will address them in a proposed rule if one is developed.
    We accept anonymous comments. All comments received will be posted 
without change to https://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and 
submissions in response to this document, see the Department of 
Homeland Security's eRulemaking System of Records notice (85 FR 14226, 
March 11, 2020).
    We do not plan to hold a public meeting, but we will consider doing 
so if we determine that a meeting would be helpful. We would issue a 
separate Federal Register notice to announce the date, time, and 
location of such a meeting.

II. Abbreviations

ANPRM Advance Notice of Proposed Rulemaking
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
IMO International Maritime Organization
ISM International Safety Management Code
PVA Passenger Vessel Association
SMS Safety Management System
Sec.  Section
U.S.C. United States Code

III. Background

Overview of Safety Management Systems (SMSs)

    An SMS is a structured and documented set of procedures enabling 
company and vessel personnel to effectively implement safety and 
environmental protection policies that are specific to that company or 
vessel. An SMS may include, among other things, procedures and policies 
for vessel operations, maintenance of equipment, responding to specific 
types of incidents, for reporting accidents or other non-conformities, 
and for conducting internal audits and reviews. This tool, if properly 
used, can reduce human factor error and subsequent harm to people, 
property, and the environment. Developing an SMS from inception reduces 
hazards and incidents through the creation of a safety culture which 
prevents accidents and protects the safety and health of employees. A 
fully functional SMS is continuously updated and evolving based on 
observations of current work practices and recognizing the need for 
changes or additional protections. In this way, an organization can 
improve its safety culture and performance.\1\
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    \1\ For more on safety management systems, see the Proceedings 
of the Marine Safety & Security Council; Spring 2016 magazine 
devoted to that topic, available at https://www.dco.uscg.mil/Portals/9/DCO%20Documents/Proceedings%20Magazine/Archive/2016/Vol73_No1_Spring2016.pdf?ver=2017-05-31-120938-307 and in the 
docket.
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    An SMS is designed to provide a strong safety management program 
and an effective means to manage complex or unique operations, monitor 
equipment maintenance, and mitigate hazards to prevent costly harm to 
people, the environment, and property. Furthermore, standardized 
operational procedures greatly assist vessel crews in performing both 
routine and non-routine tasks. Lastly, an SMS that is properly 
implemented promotes a continuously improving safety culture. Using an 
SMS approach recognizes that operators are in the best position to 
identify risks associated with company specific operations before 
casualties happen. Effective use of an SMS can avoid the necessity of 
additional regulation (or in some cases, may possibly eliminate the 
need for certain existing regulations) by encouraging operators to 
identify and mitigate risks specific to their own operations. The Coast 
Guard invites comment identifying existing regulations that may no 
longer be needed as a result of adoption of an effective SMS.
    For nearly two decades, the National Transportation Safety Board 
(NTSB) has identified issues associated with failed safety management 
and oversight as the probable cause or a contributing factor in some of 
the most serious casualties involving U.S. passenger vessels, such as 
the deadly allision of passenger ferry with a pier in 2003,\2\ and 
fires on board small passenger vessels in 2000 \3\ and 2018.\4\ This 
led to their issuing several formal safety recommendations seeking the 
required use of SMSs on U.S. passenger vessels, and highlighting the 
continued problems stemming from poor safety management.
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    \2\ On October 15, 2003, the Staten Island Ferry Andrew J. 
Barberi allided at full speed with a maintenance pier at the St. 
George's ferry terminal. Eleven passengers died and 70 were injured. 
Property damage was in excess of $8 million dollars. See NTSB 
Recommendation M05-06.
    \3\ On November 17, 2000, the U.S. small passenger vessel Port 
Imperial Manhattan was in route to Weehawken, New Jersey from the 
borough of Manhattan when a fire broke out in the engine room. There 
were no deaths; however, one passenger was treated for smoke 
inhalation. Property damage was estimated at $1.2 million dollars. 
See NTSB SMS Recommendation M02-05.
    \4\ On January 14, 2018, the U.S. small passenger vessel Island 
Lady was in route from Port Richey, Florida to a casino boat located 
about 9 miles offshore with 53 people on board when a fire broke out 
involving its exhaust system. The master intentionally beached the 
vessel near shore to evacuate the passengers. All persons escaped by 
entering the water and wading or crawling ashore. Fifteen people 
were injured and transported to local hospitals. One passenger died 
in the hospital several hours after the fire. The Island Lady, 
valued at $450,000, was declared a total constructive loss. See NTSB 
SMS Recommendations M02-05 and M-12-03.
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    There are approximately 6,500 active and inspected passenger 
vessels in the U.S-flag fleet.\5\ Of these, 530 are already required by 
domestic law to have SMSs, in accordance with International Maritime 
Organization (IMO) treaty obligations, because they transport more than 
12 passengers on foreign voyages (see below). The Coast Guard tracks 
accidents and incidents through the Marine Information for Safety and 
Law Enforcement (MISLE) database.\6\ From 2017 to 2019, there were a 
total of 6 vessel-related fatal accidents on passenger vessels, 
resulting in 55 deaths. Of these, 34 were deaths by asphyxiation 
associated with a fire aboard the dive boat MV Conception. Five of the 
six fatal incidents, and 54 of the 55 deaths, involved vessels without

[[Page 3901]]

an SMS in place. In three of the six incidents, the NTSB 
recommendations made in response to the incident called for SMS. The 
Coast Guard seeks comment on the number and type of accidents and 
fatalities that might be prevented by requiring SMSs on some subset of 
passenger vessels.
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    \5\ See USCG-PVA Quality Partnership Annual Report 2017-2019, 
available in the docket and also online at https://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Prevention-Policy-CG-5P/Inspections-Compliance-CG-5PC-/Office-of-Investigations-Casualty-Analysis/Marine-Casualty-Reports/ (last visited Jan. 11, 2021).
    \6\ Certain vessel information, including limited casualty 
information, is available at https://cgmix.uscg.mil/.
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    The Coast Guard believes that SMSs may encourage the spread of 
relevant safety information, preventing information about vessel safety 
from being compartmentalized (or ``siloed'') on one vessel or in one 
operational division of a vessel or company. The Coast Guard seeks 
comment on the correct approach to prevent information from being 
siloed within a company. We seek comment on whether it would be more 
beneficial to develop an SMS that covers an operator's entire fleet of 
passenger vessels with similar characteristics, as opposed to 
developing an SMS for each individual vessel.
    To fully assess the benefits of an SMS, we seek public feedback on 
how much siloing or sharing of information occurs on a typical vessel 
operated by a large business and one operated by a small business. 
Additionally, we seek comment on whether an SMS typically imposes 
disproportionate costs on small businesses. We also seek comment on the 
scope of applicability appropriate for an SMS requirement, including 
such factors as vessel size and type of operation. And, we are 
interested in the public's input as to how an operator with a multi-
vessel fleet would implement SMS across their organization.

Legal Requirements for SMS

    The IMO developed the International Safety Management (ISM) Code 
and adopted it as part of the International Convention for the Safety 
of Life at Sea, making compliance with the ISM Code mandatory for 
certain oceangoing ships. The ISM Code was adopted in 1993 by 
resolution A.741(18) and entered into force July 1, 1998, and has been 
amended several times. In 1996, Congress enacted the requirements found 
in Title 46 of the United States Code (U.S.C.), Chapter 32, directing 
the Coast Guard to prescribe for certain vessels (including vessels 
transporting more than 12 passengers on foreign voyages) SMS 
regulations that were consistent with the ISM Code.\7\ The Coast Guard 
issued those regulations in 1997, creating Title 33 of the Code of 
Federal Regulations (CFR) part 96.\8\ The requirements of part 96 are 
discussed in the next section.
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    \7\ Public Law 104-324, 110 Stat. 3901 (Oct. 19, 1996), as 
amended by Public Law 108-293, 118 Stat. 1028 (Aug. 9, 2004). Prior 
to its amendment in 2010, 46 U.S.C. Chapter 32 applied to a vessel 
that is (1) transporting more than 12 ``passengers'' as that term is 
now defined in 46 U.S.C. 2101(29)(A), or is a tanker, freight 
vessel, or self-propelled mobile offshore drilling unit of at least 
500 gross tons as measured under 46 U.S.C. 14302; and (2) is engaged 
on a foreign voyage, or is a foreign vessel departing from a place 
under the jurisdiction of the United States on a voyage, any part of 
which is on the high seas.
    \8\ 62 FR 67506 (Dec. 24, 1997).
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    In 2010, Congress amended 46 U.S.C. Chapter 32 by expanding the 
applicability to include a passenger vessel or small passenger vessel 
transporting more passengers than a number prescribed by the Secretary 
based on the number of individuals on the vessel that could be killed 
or injured in a marine casualty.\9\ In this ANPRM, the Coast Guard is 
seeking information to help us specify a number consistent with 46 
U.S.C. 3202.
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    \9\ Public Law 111-281, 124 Stat. 2969 (Oct. 15, 2010).
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Existing Requirements for Passenger Vessels in 33 CFR Part 96

    Under 33 CFR part 96, as it is currently written and enforced, a 
vessel must implement an SMS if carrying 12 or more passengers on an 
international voyage.\10\ SMS audits must be conducted as required by 
33 CFR 96.320, which includes a requirement that it be consistent with 
IMO Resolution A.788(19), ``Guidelines on Implementation of the 
International Safety Management (ISM) Code by Administrations.'' \11\ 
In cases of major non-conformities, the flag state administration (the 
Coast Guard, for the United States) may require a satisfactory safety 
management audit by either the Coast Guard or an independent third-
party organization.\12\ Third-party organizations, such as class 
societies, authorized by the Coast Guard may issue the Safety 
Management Certificate onboard the vessel, which certifies that the 
vessel has implemented a functioning SMS that meets the requirements of 
33 CFR part 96.\13\ Additionally, some Passenger Vessel Association 
(PVA) members have voluntarily implemented the Coast Guard-recognized 
Flagship SMS,\14\ developed by the PVA.
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    \10\ 33 CFR 96.210.
    \11\ Section 4.7 of the ISM Code, and 33 CFR 96.320(c)(2).
    \12\ 33 CFR 96.330(h).
    \13\ 33 CFR part 96, subpart D.
    \14\ Letter from Captain J.F. Williams, U.S. Coast Guard, to 
John Groundwater, Passenger Vessel Association (June 12, 2017), 
available at https://bit.ly/2sIcT7m (last visited July 21, 2020); 
see also Nick Blenkey, MarineLog, PVA's Flagship SMS gains Coast 
Guard recognition (June 26, 2017), https://www.marinelog.com/shipping/safety-and-security/pvas-flagship-sms-gains-coast-guard-recognition/(last visited July 21, 2020).
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IV. Advance Notice of Proposed Rulemaking Discussion

    The 2010 amendments to 46 U.S.C. 3202 limit the scope of 
regulations to passenger vessels that are ``transporting more 
passengers than a number prescribed by the Secretary based on the 
number of individuals on the vessel that could be killed or injured in 
a marine casualty.'' Further, in prescribing implementing regulations, 
the Secretary must consider ``(1) the characteristics, methods of 
operation, nature of the service of these vessels; and, (2) with 
respect to ferries, the sizes of the ferry systems within which the 
vessels operate.'' \15\ The Secretary has delegated to the Coast Guard 
the authority to develop and issue these regulations.\16\
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    \15\ 46 U.S.C. 3203(c).
    \16\ DHS Delegation No. 0170.1, Rev. 01.1, paragraph II (92)(b) 
(last revised May 21, 2018).
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    The Coast Guard is seeking public comment regarding which 
operations and types of passenger vessels would benefit from an SMS and 
why. We anticipate that regulations developed to implement the 2010 
amendments would affect some or all domestically-operated vessels 
inspected under 46 CFR Chapter I subchapters H, K, and T.\17\ These 
passenger vessels are already required to implement an SMS when 
carrying more than 12 passengers on international voyages.\18\ We are 
considering whether a potential new rule should be limited based on: 
(1) Presence of overnight accommodations; (2) operational risk factors 
such as number of passengers, type of service, or size of ferry system; 
(3) age of vessel; and (4) vessel design, including hull material. We 
believe that a limited scope would address the intent of the SMS-
related recommendations from numerous National Transportation Safety 
Board and Coast Guard casualty investigations on passenger vessels.\19\ 
The Coast Guard

[[Page 3902]]

seeks public comment on vessel characteristics, including the size of 
vessel, that would make an SMS appropriate.
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    \17\ Subchapter H applies to passenger vessels, subchapter K 
applies to small passenger vessels carrying more than 150 passengers 
or having overnight accommodations for more than 49 passengers, and 
subchapter T applies to small passenger vessels carrying fewer 
passengers than subchapter K denotes, but more than 6.
    \18\ See 33 CFR 96.210.
    \19\ See NTSB Recommendation M05-06 (https://www.ntsb.gov/safety/safety-recs/recletters/M05_04_06.PDF) (recommending that the 
Coast Guard Seek legislative authority to require all U.S.-flag 
ferry operators to implement safety management systems, and once 
obtained, require all U.S.-flag ferry operators to do so); NTSB 
Recommendation M12-03 (https://www.ntsb.gov/safety/safety-recs/recletters/M-12-001-003.pdf) (recommending that the Coast Guard 
require all operators of U.S.-flag passenger vessels to implement 
safety management systems, taking into account the characteristics, 
methods of operation, and nature of service of these vessels, and, 
with respect to ferries, the sizes of the ferry systems within which 
the vessels operate).
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    The Coast Guard also seeks public comment on additional industry 
standards, best practices, and regulations that should be considered or 
reviewed but are not already mentioned in this ANPRM. We are 
particularly interested in input regarding potential oversight, 
inspection, or auditing schemes for the SMSs as related to passenger 
vessel and small passenger vessel operations. When considering the 
content of a possible regulation, the Coast Guard may look to the 
current requirements of 33 CFR part 96, to the ISM Code, and to the 
Towing Safety Management System in 46 CFR part 138 which provides the 
option of having a recognized third-party conduct audits of the SMS 
program. The Coast Guard will use the best available information on 
costs and benefits to inform any future regulations for passenger 
vessels and small passenger vessels.

V. Information Requested

    Your responses to the following questions will help the Coast Guard 
develop a more informed rulemaking. The questions are not all-
inclusive, and any supplemental information is welcome. In responding 
to each question, please identify the question you are responding to 
and explain the reasons for your answer. If responding to a question 
and your response includes a monetary or numerical figure, please 
provide us with sufficient information, data, and transparency to be 
able to re-create any calculations. We encourage you to let us know 
your specific concerns with respect to any of the requirements under 
consideration.
    1. For which types of passenger vessels should the Coast Guard 
require an SMS? How should the Coast Guard consider factors such as 
vessel size (including but not limited to length, tonnage, or 
capacity), design, age, type of service, hull material, overnight 
accommodations, size of ferry system, or number of passengers?
    2. What benefits would a scalable and structured SMS provide 
passenger vessel owners, managers, and operators? Should fleet size be 
a consideration? If you have any studies or data on whether SMSs 
improve safety or reduce costs, please provide it with your submission.
    3. Have you encountered situations in which information about 
safety risks or best practices was known to one vessel, or operational 
division of a vessel or business, but not shared with others that might 
use it to prevent incidents? To what extent would an SMS encourage 
sharing or prevent the isolation (``silo-ing'') of information? If your 
answer changes depending on the nature or size of the business, please 
include that information.
    4. When a passenger vessel operator has a multi-vessel fleet, how 
is an SMS best implemented across the fleet?
    5. Should the Coast Guard consider the ISM Code (IMO Resolution 
A.741(18) as amended), sections of 46 CFR parts 136-144 (Subchapter M), 
International Organization for Standardization 9001:2015, or any other 
process-based safety management alternatives or equivalencies? If so, 
what alternatives or equivalencies should the Coast Guard consider? Do 
sections of these process-based safety management standards apply to 
the passenger vessel industry more or less than to other industries? 
Please provide specific details, if possible.
    6. In lieu of an SMS, should 46 CFR parts 78, 121, 122, 184, or 185 
be expanded to cover items commonly found in an SMS, such as a 
preventative maintenance program, emergency preparedness and response 
procedures, and procedures for key shipboard operations?
    7. If a comprehensive SMS is required, are there more prescriptive 
USCG regulations currently in the CFR that could be removed because the 
SMS would serve a similar function in promoting safety? If so, which 
regulations?
    8. If a comprehensive SMS is not necessary or justified, what 
aspects of an SMS would be appropriate to include in this regulatory 
framework? Why would you recommend including these aspects in this 
regulatory framework and not others?
    9. Which industry standards, such the ISM Code, should be 
incorporated by reference? To what extent should an industry standard 
SMS, such as the PVA's Flagship SMS, be recognized?
    10. What guidance should the Coast Guard make available to the 
passenger vessel industry in order to help owners and operators 
implement an SMS? Would such guidance save costs or time implementing 
an SMS?
    11. If you are a vessel owner or operator with a Safety Management 
Certificate issued under the ISM Code, or if you employ another type of 
SMS (for example, PVA Flagship), have you seen improvements in safety 
and operation from implementing the SMS? Please provide any supporting 
data, if available.
    12. How many new or additional employees would be needed to 
implement an SMS? What would be the potential position titles, roles, 
responsibilities, and training requirements of these employees? How 
many hours of work would be associated with each position? What 
additional costs would companies incur related to these employees? In 
your response, please indicate how company size or fleet size affects 
the estimate.
    13. If you are an operator that has chosen not to implement an SMS, 
what are reasons not to use an SMS? What type of operations may not 
benefit from an SMS, and why? Would the implementation of an SMS have 
any detrimental effects on passenger vessel operations? In addition to 
possibly needing to hire new employees, what other costs would be 
incurred by an operator implementing an SMS?
    14. How long do you estimate it would take to develop and fully 
implement an SMS in your organization? Would the SMS be developed by 
someone within your organization or would outside experts be 
contracted? In your response, please indicate how company size or fleet 
size affects the estimate.
    15. Should the Coast Guard require a certification process, an 
audit process, or both? If so, why, and who should certify or audit the 
SMS, how often, and what should the inspection or audit entail? Should 
the certification or audit requirement be limited to certain vessels? 
If not, why not?
    16. Should the Coast Guard-required SMS be subject solely to 
independent third-party audits? If so, how frequently should audits 
take place?
    17. What training or knowledge requirements are appropriate for 
crewmembers on passenger vessels with an SMS?
    18. If you are a small business, what economic impact would an SMS 
requirement have on you, your business, or your organization? In your 
comments, please explain how and to what degree the requirement would 
have an economic impact. Also, please explain why these requirements 
affect your small business differently than it might affect a larger 
business.
    19. How would the costs and benefits of expanding other existing 
regulations, as detailed in question 4, differ from the costs and 
benefits of requiring SMSs for all passenger vessels?
    20. What costs and benefits are associated with internal or third-
party audits of SMSs? To what extent is there already capacity to audit 
systems through industry associations? Where possible, please break 
down the costs

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and benefits associated into the different elements of SMS audits.
    21. What incentives could the Coast Guard provide passenger vessel 
companies to adopt an SMS? And what is the most appropriate means or 
method for the Coast Guard to incentivize these companies to adopt an 
SMS?
    22. Are there any additional factors that we should consider?

    Dated: January 12, 2021.
Karl L. Schultz,
Admiral, U.S. Coast Guard, Commandant.
[FR Doc. 2021-01058 Filed 1-14-21; 8:45 am]
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