Standards, Statutes and States: The Issues Facing Our Nation's Tugboat, Towboat and Barge Industry

Today's modern tugboat, tow- diverse— from inland barging on ing and bunkering in ports and W a t e r w a ys boat, and barge industry is opera- the Mississippi River, to ocean tow- harbors throughout the country Operators (AWO) tionally and geographically ing along the coasts, to shipdock- One the challenges the American faces as a trade association is harnessing that diversity and focusing our collective attention on the most important issues AWO's Allegretti which affect the broad spectrum of the membership. AWO has been fortunate throughout its 54-year history as our more than 375 members have much more in common with one another than they have differences born of their diversity. That has consistently allowed them to coalesce as a strong industry voice and an effective advocacy source. Today, three critical issues cross geographic and operational boundaries and present key opportunities and challenges for all companies involved in and involved with this vital sector of the maritime industry: Industry standards, criminal liability and state activism.

Raising the bar...again and again The first issue, or trend, is the increasing willingness of the maritime industry itself to take responsibility for setting its own operational standards to meet marine safety and environmental protection goals. The tug and barge industry started down this path almost four years ago, when AWO's Board of Directors adopted the Responsible Carrier Program (RCP) as a code of practice for AWO member companies. Since that time, there has been a real evolution in the program and a continuing willingness on the part of AWO's members to take the next step on the road to self-regulation and industry standard-setting.

Last October, AWO's Board approved the design of a thirdparty audit for the RCP. An AWO member Accreditation Board has also approved, trained and certified more than 50 third-party auditors for the RCP, who are now ready to perform RCP audits for our members. And this spring AWO's membership took its most significant step yet, voting overwhelmingly to amend the AWO Constitution and Bylaws to makea commitment to achieving audited compliance with the Responsible Carrier Program a condition of membership in AWO. From now on, any company that joins AWO will pledge its commitment to implementing the RCP and to undergoing a third-party audit within two years.

AWO is convinced this trend toward industry standard-setting offers real opportunities both for the maritime industry and also for those who regulate it. We do not expect industry standards to eliminate the need to ensure that an adequate regulatory floor remains in place. However, we do see real opportunities to use industry standards as a supplement to, or a substitute for, additional governmental regulation in the future.

Industry standard-setting initiatives like the AWO Responsible Carrier Program, and its external counterpart, the USCG-AWO Safety Partnership, offer a meaningful way to leverage government and industry resources in support of improved safety and environmental protection. USCG Rear Admiral Robert C. North, Assistant Commandant for Marine Safety and Environmental Protection, has talked on more than one occasion about the need to focus collective attention on "best investments" - those areas where everyone's energies will yield the greatest marine safety bang for the buck. AWO believes the trend toward industry standard- setting offers an unprecedented opportunity to target USCG regulatory and enforcement resources where those scarce resources are most needed, while at the same time encouraging responsible operators to go beyond simple compliance with the rules to exceed the regulatory floor. Criminal Liability The second issue about which AWO's members also feel strongly is the use of strict liability statutes to prosecute companies and corporate officers for oil spills. This practice is undermining the objectives of the Oil Pollution Act of 1990 (OPA 90), which AWO believes should be the exclusive vehicle for civil and criminal penalties for oil pollution. Recent occurrences involving criminal enforcement of obscure environmental laws, such as the Migratory Bird Treaty Act and the Refuse Act, have sparked considerable concern in the industry regarding a new emphasis on criminal prosecution at the expense of cooperative efforts to respond to accidents and, more importantly, to prevent them before they occur. AWO members are certainly not suggesting the USCG does not have the right and the responsibility to vigorously pursue and help prosecute those operators who flout the law or conduct negligent operations. The cause for real concern is the prospect of responsible companies being put in a positionin which they are advised by counsel not to cooperate with a USCG investigator or boarding officer because anything they say could end up being used against them in a criminal proceeding. That is not in the interest of the industry, the USCG, or the general public, and it certainly is not helpful to prevention and response activities. AWO's members want to encourage, not stifle, USCG-industry dialogue and cooperation, especially in the aftermath of a spill or accident