[Federal Register Volume 81, Number 118 (Monday, June 20, 2016)]
[Rules and Regulations]
[Pages 40004-40147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-12857]
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Vol. 81
Monday,
No. 118
June 20, 2016
Part II
Department of Homeland Security
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Coast Guard
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46 CFR Parts 1, 2, 15, et al.
Inspection of Towing Vessels; Final Rule
Federal Register / Vol. 81 , No. 118 / Monday, June 20, 2016 / Rules
and Regulations
[[Page 40004]]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
46 CFR Parts 1, 2, 15, 136, 137, 138, 139, 140, 141, 142, 143, 144,
and 199
[Docket No. USCG-2006-24412]
RIN 1625-AB06
Inspection of Towing Vessels
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is establishing safety regulations governing
the inspection, standards, and safety management systems of towing
vessels. We are taking this action because the Coast Guard and Maritime
Transportation Act of 2004 reclassified towing vessels as vessels
subject to inspection and authorized the Secretary of the Department of
Homeland Security to establish requirements for a safety management
system appropriate for the characteristics, methods of operation, and
nature of service of towing vessels. This rule, which includes
provisions covering specific electrical and machinery requirements for
new and existing towing vessels, the use and approval of third-party
organizations, and procedures for obtaining Certificates of Inspection,
will become effective July 20, 2016. However, certain existing towing
vessels subject to this rule will have an additional 2 years before
having to comply with most of its requirements.
DATES: This final rule is effective July 20, 2016. The incorporation by
reference of certain publications listed in the final rule is approved
by the Director of the Federal Register on July 20, 2016.
ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-2006-24412 and are available on the Internet by
going to http://www.regulations.gov, inserting USCG-2006-24412 in the
``Keyword'' box, and then clicking ``Search.''
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call LCDR William Nabach, Project Manager, CG-OES-2, Coast Guard,
telephone 202-372-1386.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Abbreviations
II. Executive Summary
A. Purpose and Authority
B. Overview of Rule
C. Costs and Benefits
III. Regulatory History
A. Statutory Background
B. Regulatory Background
IV. Discussion of Comments and Changes
A. General Feedback on the NPRM
B. Background and Need for Regulation
C. Organization, General Course, and Methods Governing Marine
Safety Functions (Part 1)
D. User Fees and Inspection Table (Part 2)
E. Manning (Part 15)
F. Certification/Definitions/Applicability (Part 136)
G. Vessel Compliance (Part 137)
H. Towing Safety Management System (TSMS) (Part 138)
I. Third-Party Organizations (TPOs) (Part 139)
J. Operations (Part 140)
K. Lifesaving (Part 141)
L. Fire Protection (Part 142)
M. Machinery and Electrical (Part 143)
N. Construction and Arrangement (Part 144)
O. Miscellaneous Comments
P. Crew Endurance Management Systems (CEMS)
Q. Economic Analysis Comments
V. Regulatory Analyses
A. Regulatory Planning and Review
B. Small Entities
C. Assistance for Small Entities
D. Collection of Information
E. Federalism
F. Unfunded Mandates Reform Act
G. Taking of Private Property
H. Civil Justice Reform
I. Protection of Children
J. Indian Tribal Governments
K. Energy Effects
L. Technical Standards and 1 CFR Part 51
M. Environment
I. Abbreviations
2004 Act Coast Guard and Maritime Transportation Act of 2004
2010 Act Coast Guard Authorization Act of 2010
2012 Act Coast Guard and Maritime Transportation Act of 2012
ABS American Bureau of Shipping
ABSG American Bureau of Shipping Group
ABYC American Boat and Yacht Council
AED Automatic External Defibrillator
ANSI American National Standards Institute
AWO American Waterways Operators
BLS Bureau of Labor Statistics
CEMS Crew Endurance Management System
COI Certificate of Inspection
COTP Captain of the Port
DHS Department of Homeland Security
EPIRB Emergency Position Indicating Radio Beacon
FAST Fatigue Avoidance Scheduling Tool
FR Federal Register
FRFA Final regulatory flexibility assessment
gpm gallons per minute
GRT Gross register tons
HIPAA Health Insurance Portability and Accountability Act of 1996
HOS Hours of Service
IMO International Maritime Organization
IRFA Initial regulatory flexibility analysis
ISM International Safety Management
ISO International Organization for Standardization
kPa Kilopascals
LBP Length Between Perpendiculars
LCG Longitudinal Center of Gravity
LORAN Long Range Aid to Navigation
lpm liters per minute
MISLE Marine Information for Safety and Law Enforcement
MMC Merchant Mariner Credential
MOU Memorandum of Understanding
MTSA Maritime Transportation Security Act of 2002
NAMS National Association of Marine Surveyors
NARA National Archives and Records Administration
NEC National Electrical Code
NICET National Institute for Certification in Engineering
Technologies
NFPA National Fire Protection Association
NPRM Notice of Proposed Rulemaking
NRTL Nationally Recognized Testing Laboratory
NTSB National Transportation Safety Board
NVIC Navigation and Vessel Inspection Circular
OCMI Officer in Charge, Marine Inspection
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
P.E. Professional Engineer
PFD Personal Flotation Device
PIC Person in charge
PPE Personal Protective Equipment
psi pounds per square inch
RFA Regulatory Flexibility Act
Sec. Section
SAE Society of Automotive Engineers
SAMS Society of Accredited Marine Surveyors
SMS Safety Management System
SBA Small Business Administration
SOLAS International Convention for the Safety of Life at Sea, 1974,
as amended
STCW Implementation of the Amendments to the International
Convention on Standards of Training, Certification and Watchkeeping
for Seafarers, 1978, and Changes to Domestic Endorsements
TPO Third-party organization
TSAC Towing Safety Advisory Committee
TSMS Towing Safety Management System
TVR Towing vessel record
U.S.C. United States Code
UWILD Underwater inspection in lieu of drydocking
VCG Vertical Center of Gravity
VHF Very High Frequency
VSL Value of a statistical life
VTS Vessel Traffic Service
II. Executive Summary
A. Purpose and Authority
In 2004, Congress reclassified towing vessels as vessels subject to
inspection under part B of subtitle II of title 46, United States Code
(U.S.C.), and authorized the Secretary of Homeland Security to
establish requirements for the inspection of towing vessels, their
possible use of safety management
[[Page 40005]]
systems (SMS) and hours of service requirements for them. The
legislative history, which pointed to the need for a ``full safety
inspection of towing vessels,'' references two towing vessel incidents
involving a total of 19 deaths. In September 2001, a towing vessel
struck a bridge at South Padre Island, TX. The bridge collapsed, and 5
people died when their cars or trucks went into the water. On May 26,
2002, a towing vessel struck the I-40 highway bridge over the Arkansas
River at Webber Falls, OK. The bridge collapsed, and 14 people died
when their cars or trucks went into the Arkansas River. 150 Cong. Rec.
H6469-01, 2004 WL 1630278; and H.R. Conf. Rep. 108-617, 2004
U.S.C.C.A.N. 936, 951.
This final rule implements most provisions of the Notice of
Proposed Rulemaking (NPRM)(76 FR 49976, Aug. 11, 2011) as proposed, but
makes changes to address concerns of the public and industry expressed
in comments, as is explained below. This rule is authorized and made
necessary by the Coast Guard and Maritime Transportation Act of 2004
(2004 Act), Public Law 108-293, 118 Stat. 1028 (Aug. 9, 2004), which
made towing vessels subject to inspection. Six years later, the Coast
Guard Authorization Act of 2010 (2010 Act), Public Law 111-281, 124
Stat. 2905 (Oct. 15, 2010), directed the Secretary to issue a notice of
proposed rulemaking and a final rule.
B. Overview of Rule
This rule creates a comprehensive safety system that includes
company compliance, vessel compliance, vessel standards, and oversight
in a new Code of Federal Regulations (CFR) subchapter dedicated to
towing vessels. This rule, which (with exceptions) generally applies to
all U.S.-flag towing vessels 26 feet or more, and those less than 26
feet moving a barge carrying oil or hazardous material in bulk, lays
out both inspection mechanisms as well as new equipment, construction,
and operational requirements for towing vessels.
To provide flexibility, vessel operators will have the choice of
two inspection regimes. Under the Towing Safety Management System
(TSMS) option, routine inspections of towing vessels will primarily be
performed by third-party organizations (TPOs), including certain
classification societies, and this rule creates a framework for
oversight and audits of such TPOs by the Coast Guard. The TSMS will
provide those operators with the flexibility to tailor their safety
management system to their own needs, while still ensuring an overall
level of safety acceptable to the Coast Guard. Alternatively, under the
Coast Guard inspection option, routine inspections would be conducted
by the Coast Guard, providing an option for those operators who choose
not to develop and implement their own TSMS.
The rule also creates many new requirements for design,
construction, equipment, and operation of towing vessels. Those
requirements are typically based on industry consensus standards or
existing Coast Guard requirements for similar vessels. To develop these
requirements for towing vessels, the Coast Guard started by publishing
a notice in 2004 (69 FR 78471) that asked questions and announced
public meetings to seek guidance in implementing the 2004 Act
provisions. We also worked with the Towing Safety Advisory Committee
(TSAC), industry groups, and a contractor (ABSG Consulting--tasked with
providing an industry analysis) to better gauge how to proceed with
this rulemaking. We evaluated existing requirements for towing vessels
(contained primarily in 46 CFR part 27 and subchapter I) to determine
whether they were adequate for towing vessels and meet the intent of
the 2004 Act. As discussed in greater detail below, the safety
requirements in this final rule align with industry consensus
standards, and we consider it very likely that most towing vessels
already comply with most of them.
We made several changes to our proposal in the NPRM. We have
clarified the system for Coast Guard oversight and inspection of towing
vessels that complements the TPO system the Coast Guard proposed. To
address concerns about the cost impact of the rule, we have added
``grandfathering'' provisions to several requirements, so the
requirements will not apply to existing vessels or vessels whose
construction began before the effective date of the rule. We also
reorganized several parts for greater clarity or to better align with
the existing text of other parts of the CFR. Finally, as we noted in
the NPRM (76 FR 49985), we still plan to promulgate a separate
rulemaking for an annual inspection fee for towing vessels that will
reflect the specific program costs associated with the TSMS and Coast
Guard inspection options. Until then we are establishing the existing
fee of $1,030 in 46 CFR 2.10-101 for any inspected vessel not listed in
Table 2.10-101 as the annual inspection fee for towing vessels subject
to subchapter M. As reflected in 46 CFR 2.10-1(b), this fee would not
be charged for a vessel being inspected for the initial issuance of a
COI, but the fee would be charged annually starting a year later.
C. Costs and Benefits
This rule will affect approximately 5,509 U.S. flag towing vessels
engaged in pushing, pulling, or hauling alongside, and the 1,096
companies that own or operate them. Towing vessels not covered by this
rule include towing vessels inspected under subchapter I, work boats,
and recreational vessel towing vessels.
The estimate for total industry and net government costs is $41.5
million annualized at a 7 percent discount rate over a 10-year period
of analysis. The estimate for monetized benefits is $46.4 million
annualized at a 7 percent discount rate, based on the mitigation of
risks from towing vessel accidents in terms of lives lost, injuries,
oil spilled, and property damage.
Subtracting the annualized monetized costs from the annualized
monetized benefits yields a net benefit of $4.9 million. We also
identified, but did not monetize, other benefits from reducing the risk
of accidents that have secondary consequences of delays and congestions
on waterways, highways, and railroads.
III. Regulatory History
A. Statutory Background
The Coast Guard and Maritime Transportation Act of 2004 (2004 Act),
Public Law 108-293, 118 Stat. 1028 (Aug. 9, 2004), established new
authorities for towing vessels as follows:
The 2004 Act added ``towing vessels'' as a class of vessels that
are subject to safety inspections. See section 415 of the 2004 Act,
which amended section 3301 of title 46 of the U.S.C. (46 U.S.C. 3301).
The term ``towing vessel'' was already defined in 46 U.S.C. 2101, and
the scope and standards of safety inspections are laid out in 46 U.S.C.
3305.
The 2004 Act also authorized the Secretary of Homeland Security to
establish, by regulation, a safety management system appropriate for
the characteristics, methods of operation, and nature of service of
towing vessels.
See Section 415 of the 2004 Act, which amended 46 U.S.C. 3306(j).
B. Regulatory Background
On December 30, 2004, the Coast Guard published a request for
comments and notice of public meetings titled ``Inspection of Towing
Vessels'' in the Federal Register (69 FR 78471). The notice asked seven
questions regarding how the Coast Guard should move forward with the
rulemaking to implement the statutory provisions from
[[Page 40006]]
the 2004 Act, listed above in section III.A. ``Statutory background.''
The Coast Guard then held four public meetings, one each in Washington,
DC; Oakland, CA; New Orleans, LA; and St. Louis, MO. In addition to the
comments the Coast Guard received at the public meetings, there were
117 comments submitted to the docket, which can be found in docket
USCG-2004-19977 at http://www.regulations.gov. The Coast Guard used the
public input received to inform its development of the NPRM.
On August 11, 2011, the Coast Guard published an NPRM titled
``Inspection of Towing Vessels'' in the Federal Register (76 FR 49976).
The Coast Guard then held four public meetings, one each in Newport
News, VA; New Orleans, LA; St. Louis, MO; and Seattle, WA. The comment
period was open until December 9, 2011. We received and considered a
combined total of more than 3,000 comments from more than 265 written
submissions and oral statements from 105 persons at public meetings.
IV. Discussion of Comments and Changes
A. General Feedback on the NPRM
For clarity, the following discussion of comments is sorted by
topic, which primarily corresponds to parts of the CFR as noted in the
Table of Contents.
Parts 1 and 2 are in title 46 CFR subchapter A, part 15 is in
subchapter B, part 199 is in subchapter W, and all other parts are in
the newly created subchapter M. Where changes in response to a comment
led to changes outside the designated section or part, we have noted it
in the text. Within each topic of the rule, comments have been
addressed in order of the section they applied to. When public
submissions addressed multiple sections of the proposed rule or it
wasn't clear what specific sections they addressed, we responded to
their comments in the section that seemed most appropriate. In
addition, we have made numerous changes through the regulatory text
that are entirely non-substantive and editorial in nature; for example,
changing ``chapter'' to ``Chapter'' or ``onboard'' to ``on board'' in
certain contexts to better conform to standard usage.
We received several comments in general support of the proposed
inspection regime, design standards, and SMS requirements for towing
vessels. Individuals and maritime companies felt that the proposed
regulation would serve to improve the safety, security, and
environmental protection of towing vessel operations.
We also received several comments from individuals and maritime
companies that generally opposed the proposed regulation. Some
commenters expressed concern that the elements of the proposed rule
would impose added cost burdens on business, which might lead to
termination of positions.
The Coast Guard acknowledges these comments and concerns. However,
we do not expect towing companies and businesses to eliminate positions
or downsize as a result of this rulemaking. See the Regulatory Analysis
for our discussion of this issue.
One comment agreed with the American Bureau of Shipping Group's
(ABSG's) recommendation that a traditional, inspected vessel option be
offered as an alternative for those companies that did not maintain
documentation of policies and procedures, and for those smaller
companies who would not be able to implement a SMS. As we noted in the
NPRM (76 FR 49978), we contracted with ABSG Consulting in 2006 for
assistance with gathering data and categorizing the vessels that make
up the towing industry; see their report, which also contains
recommendations, in the docket, USCG-2006-24412-0017.
We concur with the commenter and the cited ABSG recommendation. As
an alternative to a TSMS, the proposed rule included the option of a
Coast Guard inspection regime. We have kept both of these options in
this final rule.
Citing an 80-page NPRM, more than 2,000 pages of supporting
documentation, and a short comment period, one commenter requested an
extension of the comment period so smaller operators can review how the
proposed requirements would impact their businesses. The Coast Guard
did not grant this request; we provided a 120-day comment period, which
is longer than our standard 90-day comment period, and also held four
public meetings in that time. We believe there was sufficient
opportunity to comment on the NPRM.
B. Background and Need for Regulation
We received one comment noting that the 2010 Act no longer exempted
towing vessels of less than 200 tons engaged in exploiting offshore
minerals or oil from 46 U.S.C. 8904 and regulations promulgated under
that authority, and therefore Sec. 15.535(b) should be revised. See
section 606 of that Act. We agree with the commenter that the exemption
is no longer valid and so we adopted the commenter's requested
amendment to Sec. 15.535.
We received comments from several commenters who supported the work
conducted by TSAC working groups. For NPRM discussion of work by these
groups, see 76 FR 49978. Other commenters commended the Coast Guard's
efforts in incorporating suggestions provided by TSAC. One commenter
explained that a quote in the preamble, regarding the devastating
impact that a TSMS can have on smaller companies, was incorrectly
attributed to the TSAC Economic Analysis Working Group.
The commenter, a trade association, went on to explain that
according to the experience of its members, TSMSs have had a positive
impact on the safety performance and success of many small companies.
As we have previously noted, we greatly appreciate TSAC's
contributions to the development of the NPRM. The quote we attributed
to the TSAC Economic Working Group regarding the devastating impact
that a TSMS requirement can have on smaller companies was taken from an
earlier version of the working group's report; the quote should have
read ``To conduct internal audits on a large fleet, this may mean
hiring a full-time staff, including salary, training and travel costs.
While large companies will spend more to implement and maintain a SMS,
however, the costs to a small company may be more difficult to
absorb.'' See page 4 of the TSAC Economic Analysis Working Group
Report, Dec. 16, 2008, document USCG-2006-24412-0007 in the docket. We
are not surprised by the statement that TSMSs have had a positive
impact on the safety performance and success of safety operators; we
included TSMS as an option because we believe TSMSs will provide a
positive impact on the safe operation of towing vessels. For data
supporting this assessment, see the Regulatory Analysis for this final
rule in the docket.
One commenter recommended that rather than writing a costly new set
of regulations, the Coast Guard should give consideration to
consolidating the rules already in place. The commenter recalled a
voluntary program from a 2009 ``United States Coast Guard Requirements
for Uninspected Towing Vessels'' document that issued stickers to
vessels that had been reviewed for compliance with current regulations.
The Coast Guard established the voluntary Towing Vessel Bridging
Program in 2009 to ease the transition of towing vessels going from a
status of uninspected to inspected, and to ensure that both the Coast
Guard and the towing vessel industry are informed and prepared to meet
requirements coming from this Inspection of Towing Vessels
[[Page 40007]]
rulemaking. As we noted in the NPRM, the Coast Guard considered
existing regulations but decided the standards or regulations found in
other vessel inspection subchapters were not appropriate and did not
fulfill the intent of the 2004 Act. (76 FR 49987, Aug. 11, 2011.) The
unique nature of the towing industry and towing operations warrants the
development of new standards and regulations that pertain exclusively
to towing vessels. In addition to the TSMS, this final rule contains
other towing vessel-specific provisions, including expansion of the use
of TPOs as part of the Coast Guard's TSMS-based, towing vessel
inspection for certification regime. The Towing Vessel Bridging Program
is a transition program based on voluntary compliance; it is not a
substitute for a comprehensive regulatory regime that addresses and
enforces safety requirements for towing vessels that Congress
envisioned when it added towing vessels to the list of vessels subject
to inspection.
We received comments from individuals and maritime companies who
disagreed with the need for the proposed regulations, either because
lack of vessel regulations were not the cause of the problem or the
proposed regulations were not risk-based. Three commenters noted that
some casualties occur because of human error, not from a lack of
regulation. One individual felt that the Mississippi River accident in
2008 was not a good example in support of additional regulation,
because the accident was caused by irresponsible behavior of the pilot.
The Coast Guard recognizes that human error is the cause of some
casualties and that no amount of regulations will eliminate human
error. To the extent we are able, however, we have attempted to adopt
regulations that help ensure the safe operation of towing vessels,
including some regulations intended to address factors related to human
error. A fully functional safety management system, such as a TSMS, is
continuously updated and evolving based on the non-conformities
observed and the lessons learned as a result of reviewing incidents--
including those related to human error. The TSMS option should help
ensure that towing vessels are operated more safely and in full
compliance with the TSMS and regulations in subchapter M. The Coast
Guard inspection option may provide less frequent feedback to vessel
operators and crew, but it too is intended to ensure compliance with
regulations in subchapter M.
Two commenters, an individual and a towing company, felt that the
regulations are not based on risk. A company asserted that a risk-based
approach supported by towing vessel casualty data should be the main
motivation behind the application and development of towing vessel
safety regulation.
As reflected in discussions below regarding specific requirements,
the Coast Guard has used a risk-based approach in this rulemaking. We
have reviewed comments on cost and other assumptions on which we based
our proposed rule and have made changes when appropriate to ensure that
this final rule is risk-based. For data supporting this assessment, see
the Regulatory Analysis for the final rule.
One commenter indicated that the Coast Guard's Marine Safety
Directorate has not sought to help working mariners. The commenter
praised Congress for amending 46 U.S.C. 2114 to protect a seaman
against discrimination if he or she testifies in a proceeding brought
to enforce a maritime safety law or regulation, or engages in certain
other actions involving the seaman's work, or participates in a safety
investigation by the Department of Homeland Security or National
Transportation Safety Board (NTSB). The commenter listed four areas
where mariners' safety, health, and welfare, in the commenter's view,
were largely unprotected: Workplace safety on uninspected dry cargo
barges, hearing protection and noise prevention, asbestos, and personal
protective equipment. The same commenter urged Congress to transfer
authority over workplace inspection, drafting safety regulations, and
requiring proper maintenance of barges from the Occupational Safety and
Health Administration (OSHA) to the Coast Guard. This commenter also
recommended areas in which the NPRM should be revised to promote
workplace safety and health regulations, including training of Coast
Guard inspectors in OSHA-workplace-safety regulations and the use of
personal protective equipment.
The Coast Guard notes the commenter's concern; the commenter's
specific suggested revisions to the regulations proposed in the NPRM
are addressed below where we discuss 46 CFR part 140, Operations, which
includes subparts on crew safety and safety and health, and other parts
addressed by this commenter.
C. Organization, General Course, and Methods Governing Marine Safety
Functions (Part 1)
In our NPRM, we did not propose to amend part 1, but in this final
rule we added Sec. 1.03-55 to address comments on the appeals process
for a company whose certificate is rescinded. See section IV.H below.
Our proposed Sec. 136.180 pointed to 46 CFR 1.03 for those seeking to
appeal, but we saw the need to identify the Coast Guard official or
entity that appeals should be directed to, including the appeal of
matters relating to action of a third party, such as when a TPO
rescinds a TSMS certificate.
D. User Fees and Inspection Table (Part 2)
Part 2 of 46 CFR is in subchapter A. We received two comments
regarding user fees. An association asked the Coast Guard to clarify
whether those choosing both the TSMS and the Coast Guard inspection
options will have to pay whatever user fee is assessed in the final
rule to recover the costs of the entire new towing vessel inspection
program. Another commenter asserted that charging user fees to finance
the implementation of regulation that is not risk-based will return
little value to the industry.
Under 46 U.S.C. 2110 and the Coast Guard's regulations in 46 CFR
subpart 2.10, the Coast Guard is required to charge a fee for services
provided for vessels required to have a Certificate of Inspection
(COI). Subpart 2.10 fees, however, do not apply to the initial issuance
of a COI.
This fee for services must meet the criteria of 31 U.S.C. 9701
(Fees and charges for Government services and things of value) to be
fair and based on the cost to the government, the value of the service
being provided, the public policy served, and other relevant facts. The
Office of Management and Budget (OMB) Revised Circular A-25 explains
that full program costs should be recovered by fees charged.
In our NPRM, the Coast Guard stated its intent to establish a user
fee, as required by law, for those vessels required to comply with
subchapter M, and indicated that this user fee would be established
through a separate rulemaking process that would commence on or around
publication of this final rule. The Coast Guard also committed to not
inspecting towing vessels or issuing COIs to towing vessels until user
fees were established. (76 FR 49985, August 11, 2011.)
We still plan to promulgate a separate rulemaking for an annual
inspection fee specifically for towing vessels, under the authority in
46 U.S.C. 2110 and 31 U.S.C. 9701, that will consider the specific
program costs associated with the TSMS and Coast Guard inspection
options. However, until that time the
[[Page 40008]]
Coast Guard is establishing the existing fee of $1,030 stated in 46 CFR
2.10-101 as the annual inspection fee for towing vessels subject to
subchapter M, for any inspected vessel not listed in Table 2.10-101. As
reflected in 46 CFR 2.10-1(b), this annual inspection fee will not be
charged for an initial COI inspection, but the fee will be charged
annually starting a year later. Once this final rule becomes effective,
the Coast Guard will apply the existing annual fee listed in 46 CFR
2.10-101, Table 2.10-101 as ``Any inspected vessel not listed in this
table'' to subchapter M vessels other than those already separately
listed in the Table. Since all vessels subject to subchapter M will be
considered inspected vessels and required to obtain COIs, regardless of
whether the TSMS option is chosen, all subchapter M vessels receiving
COIs will be charged an annual inspection fee as outlined above.
User fees charged by the Coast Guard under 46 U.S.C. 2110 do not
directly finance Coast Guard operations and thus user fees do not
finance the implementation of the regulations. OMB's Revised Circular
A-25 explains that user fees are intended to offset the cost of
providing services to specific beneficiaries.
Regarding the comment about the lack of value of a user fee to
finance the implementation of a non-risk-based regulation, we have used
a risk-based approach in developing this rulemaking and have made
changes from the proposed rule taking into account commenters concerns
to ensure that this final rule continues to rely on risk-based
analysis.
Other Certification Changes
In the NPRM we stated we would amend the table in subchapter I--and
in other subchapters--that identified inspection and certification
regulations applicable to vessels. Our intended amendments to those
tables were to reflect changes for towing vessels introduced by
subchapter M (see discussion in 76 FR 49979, August 11, 2011). Since
the NPRM was published, however, in a separate rulemaking (79 FR 58270,
58272, September 29, 2014) the Coast Guard removed tables in 46 CFR
24.05-1, 70.05-1, 90.05-1, and 188.05-1. Those tables replicated a
table in 46 CFR part 2 dedicated to inspection regulations and thus
were not necessary.
Rather than add to the 7-column, 7-page table in 46 CFR 2.01-7(a),
we have amended the text before and after the table instead. These
amendments direct towing vessels to a new paragraph (b), which directs
those subject to this rule to subchapter M for inspection and
certification regulations, and other towing vessels to Table 2.01-7(a).
E. Manning (Part 15)
We received approximately 40 comments that addressed the issue of
manning. Part 15 of 46 CFR is in subchapter B.
We received several comments stating that the Coast Guard should
require minimum crew manning levels. One commenter said wheelhouse
manning is a concern due to the shortage of qualified individuals
holding the appropriate merchant mariner credential, especially with
the retirement age approaching for many currently qualified
individuals. A maritime company said the minimum manning level should
be included in the COI. Another commenter noted in response to COI
requirements proposed in part 136 that this regulation should clarify
the number of required crewmembers and allow the towing vessel to be
operated by a single crewmember in certain circumstances.
In accordance with 46 CFR 15.501, the Coast Guard will specify the
minimum manning for each towing vessel in all of the vessel's areas of
operation on the vessel's COI, including international and domestic
operations. We note that Officers in Charge, Marine Inspection (OCMIs)
will review operational details of the vessel and work with companies
to make decisions on vessel manning which could indicate various levels
of manning based on specific routes and service of the towing vessel
when determining the number of required crewmembers for a towing
vessel. We do not envision an appreciable increase in the number of
qualified individuals needed to man inspected towing vessels. The
influence of market forces on the number of individuals seeking to
become credentialed operators is beyond the scope of this rulemaking.
Several commenters opposed any change to the current manning levels
required for towing vessels, and some commenters recommended specific
changes to several sections currently in the CFR, such as 33 CFR
155.710(e) and 46 CFR 15.810(b) and 15.820(a)(3), to avoid inadvertent
changes to the manning or credentialing requirements given the Coast
Guard's statement in the NPRM that ``we are not proposing to change any
of the current manning levels required for towing vessels'' (76 FR
49990, Aug. 11, 2011).
As previously stated, the Coast Guard will make a vessel-specific
assessment of the manning required for a given vessel's operations. The
minimum manning required for safe operations may differ from one
operation to another. As with other inspected vessels, this is a
vessel-specific determination made by the cognizant OCMI.
The Coast Guard believes the requested change to Sec. 15.820(a)(3)
is already addressed through existing regulations. For inspected
vessels 300 gross tons and above that operate on inland waters, 46 CFR
15.820(a)(3) requires the vessel to have an individual with a license
or the appropriate merchant mariner credential (MMC) officer
endorsement if the OCMI determines that such credentials are necessary
for the person responsible for the vessel's mechanical propulsion. For
purposes of towing vessels, however, the applicable subchapter B
definition of ``inland waters'' excludes the Western Rivers. See 46 CFR
10.107. Therefore, Sec. 15.820(a)(3) does not apply to a towing vessel
when it is operating on Western Rivers, a term also defined in Sec.
10.107. Based on a recent survey of the Coast Guard's Marine
Information for Safety and Law Enforcement (MISLE) database, we have
concluded that most inland towing vessels 300 gross tons or above
operate on the Western Rivers. Those towing vessels operating on inland
waters beyond the Western Rivers may be required to have a credentialed
individual responsible for the vessel's mechanical propulsion based on
a vessel-specific assessment conducted by the cognizant OCMI.
The Coast Guard believes changes to 33 CFR 155.710(e) that would
allow the use of a letter-of-designation for an inspected towing vessel
are not warranted. The requirements of 33 CFR 155.710(e)(1) apply to
all inspected vessels required by 46 CFR chapter I to have an officer
aboard, including towing vessels that become inspected vessels under
this rule. Congress made towing vessels a class of vessels subject to
inspection, and we have no evidence that towing vessels are less likely
to spill oil than the other inspected vessels already subject to Sec.
155.710(e)(1). We also see value in uniform requirments for inspected
vessels conducting the same activities. We note, however, that existing
Sec. 155.130 provides for exemptions from compliance with the
requirement if authorized by the COTP or OCMI for reasons such as
economic or physical impracticality. We therefore believe that adequate
flexibility already exists in Part 155 to accommodate any unexpected
consequences of towing vessels becoming subject Sec. 155.710(e)(1).
The Coast Guard believes changes to 46 CFR 15.810(b), in order to
exempt towing vessels subject to subchapter M
[[Page 40009]]
from the requirements for a minimum number of mariners holding a
license or MMC officer endorsement as mate required to be carried on
certain inspected vessels, are not warranted. Towing vessels are one of
the several classes of vessels that are authorized to use a two-watch
system and, as a result, additional mates are unnecessary to comply
with this level of manning.
Some commenters urged the Coast Guard to adopt TSAC's 2006
recommendations to amend proposed 46 CFR 15.535 to incorporate a
baseline requirement for a safe watch complement. This was intended to
avoid confusion about the minimum manning that will be required on
towing vessel COIs and the role of the TSMS in crewing decisions.
Consistent with our NPRM preamble statement that we were not
proposing to change any of the current manning levels required for
towing vessels, we modeled our proposed Sec. 15.535 after Sec.
15.610, which addresses towing vessel master and mate (pilot)
requirements on uninspected vessels. But as noted above in section
IV.B, we made a change in Sec. 15.535 from what we proposed in the
NPRM. To reflect the 2010 Act's amendment to 46 U.S.C. 8905, we made a
conforming amendment to Sec. 15.535(b) to remove an non-applicability
reference to certain towing vessels of less than 200 gross register
tons engaged in exploiting offshore minerals or oil. While reviewing
proposed Sec. 15.535 in response to a comment discussed above, we
noted the need to remove a reference to vessels engaged in assistance
towing because the applicability of Sec. 15.535 does not include
vessels engaged in assistance towing. Further, we revised paragraph (a)
to more clearly state which vessels are subject to Sec. 15.535, to
specify the vessels not subject to subchapter M that must meet
requirements Sec. 15.535(b), and to note that all towing vessels
subject to Sec. 15.535 must also meet requirements in Sec. 15.535(c).
Finally, we inserted clarifying edits and paragraph headings in Sec.
15.535 to make it easier to read and understand, and in both Sec. Sec.
15.535 and 15.610 we clarified that the officer in charge of the vessel
must provide the evidence to the Coast Guard.
Also, we made changes to Sec. 15.535 to ensure consistency in the
nomenclature introduced by the Consolidation of Merchant Mariner
Qualification Credentials final rule (74 FR 11196, Mar. 16, 2009), and
to Sec. 15.610 to ensure that this section refers to the remaining
uninspected towing vessels. Our changes also reflect the recent
amendments made by the final rule entitled Implementation of the
Amendments to the International Convention on Standards of Training,
Certification and Watchkeeping for Seafarers, 1978, and Changes to
Domestic Endorsements (STCW) (78 FR 77796, Dec. 24, 2013).
As the authority issuing the vessel's COI, the cognizant OCMI is
required by law to stipulate the manning for an inspected vessel. See
46 U.S.C. 3309 and 8101, 33 CFR 1.01-20, and 46 CFR 2.01-5 and 15.501.
She or he can take a variety of factors into consideration when
determining the safe manning for a vessel, including recommendations
from the owner or managing operator. In some cases, existing law or
regulations specify the minimum manning for a particular voyage, area
of operation, or vessel service. See e.g., 46 U.S.C. 8301 and 46 CFR
15.610. In this final rule, 46 CFR 15.535 would set one such minimum.
An OCMI may specify a level of manning above those minimums specified
by law if such a level is warranted to safely operate the vessel. See
46 U.S.C. 8301(d)(2) and 46 CFR 15.501. A vessel's safety management
system can identify situations where additional manning may be
warranted (such as high water conditions) but it cannot specify a level
of manning below the minimum established by the OCMI at any time.
We received some comments stating that the language used in Sec.
15.535(c) concerning towing vessels in pilotage waters on the Lower
Mississippi River is not clear. One commenter said it would be useful
to define the geographical limits of the ``pilotage waters of the Lower
Mississippi River'' in Sec. 15.535(c). Another commenter said the
language should be the same as that used in Sec. 15.610(b).
The Coast Guard agrees with these comments and has changed the text
in Sec. 15.535(c) to match the current text of Sec. 15.610(b), except
for necessary organizational changes and to specify that the evidence
should be provided to the Coast Guard. The pilotage waters of the Lower
Mississippi River are described in a notice of designated areas
published December 26, 1996 (61 FR 68090).
Some commenters said crew size should be dictated by the size and
needs of the vessel. One commenter said the vessel master must have the
final say on the crew requirements. A towing company said it is
important that the minimum manning requirements account for different
vessel operations (e.g., crew of three for ship assist work in-harbor
versus crew of six for offshore trips).
While the master has a role in ensuring the proper manning of a
vessel, the master must observe applicable law and regulations, and the
manning specified by the Coast Guard on the vessel's COI when
performing that role. We note that under Sec. 140.210, the master must
ensure that adequate corrective action is taken when he or she
encounters unsafe conditions. The COI issued by the Coast Guard will
specify the minimum manning for the vessel under normal operating
conditions and the master must adhere to the provisions of the COI. See
Sec. 140.210(a)(1). The towing vessel master and the TSMS should
identify when, and if, additional personnel are needed on board the
towing vessel. During flood or low water conditions, for example, the
master may specify that additional crew members are needed.
We received some comments requesting that the Coast Guard clarify
and resolve differences in language between Sec. 15.535 and language
in the STCW Supplemental NPRM that proposed to amend Sec. 15.610.
As noted above, the STCW final rule has been published, and we have
amended the text in Sec. 15.535(c) to match the current Sec.
15.610(b). There was a slight variation in wording between Sec.
15.535(c) as originally proposed and Sec. 15.610(b).
Further, our proposed Sec. 15.535(c) specified that the towing
vessel ``be under the control of an officer who holds a first class
pilot's license or endorsement for that route, or who meets''
requirements related to the type of barge being towed. The current
Sec. 15.610(b) specifies that the towing vessel be under the control
of an officer meeting that section's requirements for a towing vessel
of 26 feet or more in length and that that officer hold ``a first-class
pilot's endorsement for that route or MMC officer endorsement for the
Western Rivers, or'' that the officer meets the requirements for a
towing vessel of 26 feet or more in length and the requirements based
on the type of barge being towed. Consistent with the commenters'
recommendations, we have amended Sec. 15.535 to conform to the current
version of Sec. 15.610.
Also, because we added Sec. 15.535 to address vessels subject to
subchapter M, we inserted a paragraph at the beginning of Sec. 15.610
to limit that section to towing vessels not subject to subchapter M.
Applicability exceptions in subchapter M explain that some towing
vessels at least 8 meters in length will still be subject to Sec.
15.610. We made necessary organizational changes to Sec. 15.610 to
reflect our insertion of this new paragraph.
An individual recommended that in addition to the towing vessel
being
[[Page 40010]]
operated by a properly licensed master, our rule should require at
least one crew member to be documented with preferably an ``Able
Bodied'' seaman's rating. The commenter noted his marine work
experience and seeing members of a construction crew assigned to handle
the lines when a towing evolution was needed. He stated that the skills
and knowledge of construction workers do not always overlap with those
required of seamen.
We did not propose the change suggested by this commenter and would
want to receive comments before making the suggested change. But we are
confident that the manning requirements in Sec. 15.535 and
requirements in Sec. 140.210 for reporting and addressing unsafe
conditions provide assurances that lines will be properly handled
during towing evolutions. We have not made a change from the proposed
rule based on this comment.
We received one comment saying that our rulemaking seeks to address
issues such as a ``man overboard'' situation, but such situations are
innately linked to minimum safe manning of a vessel. The commenter
asked how a licensed towing officer at the helm is expected to safely
and successfully recover a single deckhand from the water should the
deckhand go overboard during routine operations.
We have addressed requirements for lifesaving equipment,
arrangements, systems, and procedures on towing vessels in Section IV.K
of this preamble, ``Lifesaving,'' and lifesaving regulations are
located in part 141 of subchapter M. When specifying the minimum
complement of officers and crew necessary for the safe operation of the
vessel, the OCMI is called on to consider emergency situations such as
a person overboard. See 46 CFR 15.501.
One commenter pointed out that language used in Sec. 15.535 in the
NPRM regarding an exception for certain towing vessels was eliminated
by section 606 of the 2010 Act.
As noted above in response to a comment addressed in section IV.B,
section 606 of Public Law 111-281 did strike the paragraph in 46 U.S.C.
8905 that exempted vessels of less than 200 gross tons ``engaged in the
offshore mineral and oil industry if the vessel has offshore mineral
and oil industry sites or equipment as its ultimate destination or
place of departure'' from 46 U.S.C. 8904 requirements and regulations
promulgated under 46 U.S.C. 8904. This statutory change was not
reflected in our proposed rule. Accordingly, we made a conforming
amendment to Sec. 15.535(b), which excludes certain vessels from the
licensed-master-or-mate requirement, by deleting the reference to
vessels engaged in the offshore mineral and oil industry. This
amendment to Sec. 15.535(b), which now only exempts vessels engaged in
assistance towing from the licensed-master-or-mate requirement,
conforms this final rule to Public Law 111-281's amendment to 46 U.S.C.
8905.
One commenter expressed concern about the words ``not to include
over time'' in the definition of ``day'' in existing 46 CFR 10.107 and
that section's computation of service hours on vessels less than 100
gross register tons (GRT). The commenter stated that work-hour abuses
occur, especially on vessels of less than 100 GRT, because a day of
work is considered 8 hours. Also, overtime is not counted toward sea
service. The commenter recommends that this loophole be removed.
In the proposed regulatory text of the NPRM, we did touch on 46 CFR
chapter I, subchapter B, Merchant Marine Officers and Seamen, but we
did not propose any changes to 46 CFR part 10, Merchant Mariner
Credential, where 46 CFR 10.107 is located. Related to this comment, we
note that Section 607 of the 2010 Act, which amended 46 U.S.C. by
introducing additional logbook and entry requirements in 46 U.S.C.
11304, included entries for the ``number of hours in service to the
vessels of each seaman and each officer.'' We would need a separate
rulemaking to fully implement section 607 of the 2010 Act, which
involves hours of service; that rulemaking could apply to more than
just towing vessels.
We amended a regulation, 46 CFR 15.815(c), that requires a radar
observer endorsement for masters or mates onboard an uninspected towing
vessel 26 feet or longer by removing the word ``uninspected.'' When
that regulation was issued, most towing vessels were uninspected, and
Sec. 15.815(a) covered towing vessels 300 GRT or more that were
inspected. Because most towing vessels 26 feet or longer will become
inspected once this rule becomes effective, we are making this
conforming amendment to 46 CFR 15.815(c). This change is consistent
with our Sec. 15.815 towing-vessel specific enabling statute, 46
U.S.C. 8904(a), which distinguishes towing vessels purely on length,
not whether they are inspected or uninspected. Because Sec. 15.815(c)
already requires this radar observers' endorsement on uninspected
towing vessels, there is no anticipated cost associated with this
change.
F. Certification/Definitions/Applicability (Part 136)
Applicability
We received some comments supporting the Coast Guard's decision to
defer consideration to a subsequent rulemaking of requirements for
towing vessels less than 26 feet in length, towing vessels used solely
for assistance towing, and work boats operating exclusively within a
work site and performing intermittent towing within a work site.
Several commenters expressed support for the concept of excepted
vessels but felt that clarification is needed with regard to the range
of fleet and harbor service operations that fall under this term.
Others suggested that some aspects of the equipment requirements, like
distress flares and additional lifebuoys, could be removed from the
rule.
In our definition of ``excepted vessel'' in Sec. 136.110, we make
reference to harbor-assist, but we define that term in addition to
``limited geographic area'' and we believe those definitions are
sufficiently clear to identify the range of harbor service operations
that fall under these terms. We had included a reference to a fleeting
area as an example of a limited geographic area in our proposed
definition of ``excepted vessel,'' but, as discussed below in this
section (IV.F), we removed that and other examples for the separately
defined term ``limited geographic area.'' Also, we amended the
reference to vessels that may be included by the cognizant OCMI in this
definition by identifying the requirements and reasons the OCMI must
consider before treating a vessel as an excepted vessel for purposes of
some or all of the requirements listed.
The Coast Guard has not subjected excepted vessels to certain
requirements in part 142 for fire protection equipment, and certain
requirements for new vessels in part 143 for alarms and monitoring,
general alarms, communication, fuel shutoff, additional fuel system
requirements for existing vessels, and electrical power sources,
generators, and motors, and electrical overcurrent protection. We have
considered a commenter's request to also not require excepted vessels
to comply with distress flare and additional lifebuoy requirements but
decline to do so because the factors used to except these vessels do
not reduce the need for flare and lifebuoy requirements.
In Sec. 141.375, we have a more precise exception regarding
distress flares and do not require that they be carried on vessels
operating in a limited
[[Page 40011]]
geographic area on a short run limited to approximately 30 minutes away
from the dock. Also, we have reviewed our lifebuoy requirements in
Sec. 141.360 based on the request to not require additional lifebuoys
of excepted vessels, but have not adopted this suggested change because
some excepted vessels, for example, towing vessels used for response to
an emergency, need to have on board the lifebuoys required under Sec.
141.360. Also, we noted our use of the term ``excepted towing vessel,''
instead of ``excepted vessel,'' in part 143. We have clarified part 143
by making all proposed references to ``excepted towing vessel,''
consistent with the term we defined, ``excepted vessel.''
Some commenters did not agree with our exception of towing vessels
less than 26 feet for several reasons, including smaller vessels being
given an unfair competitive advantage, the fact that such vessels may
be engaging in commercial work, and a concern about regulatory
avoidance.
Our exemption for towing vessels less than 26 feet in length is
intended to provide for an incremental application of inspection status
to the towing vessel fleet and is consistent with the recommendations
of TSAC. We note here that we made edits in Sec. 136.105 to ensure
that the exemptions in that section are clearly stated. Specifically
regarding our meter approximation of 26 feet, we changed ``(8 meters)''
to the more precise approximation of ``(7.92 meters).'' Also we
corrected the threshold for vessels subject to subchapter I.
An individual noted that towing vessels should be measured end-to-
end at actual length, and another commenter suggested that the size of
tow should be used to determine exempt vessels. Another individual
recommended that the exemption should be based on a combination of
length, displacement, and shaft horsepower in order to remove the
incentive to use short, high-power tugs to circumvent Coast Guard
inspections. A commenter suggested a clarification that towing vessels
less than 26 feet in length are not exempt if they move barges carrying
oil.
For methods of measuring towing vessels, the Coast Guard sees no
reason to deviate from the statutory standard in 46 U.S.C. 8904(a)
which is reflected in 46 CFR 15.535 and 136.105: Length measured from
end to end over the deck (excluding the sheer). We considered the
suggestion of using size of tow or a combination of length,
displacement, and shaft horsepower as a way to determine applicability,
but we believe using the length of the towing vessels is a more
manageable approach which--while not as direct--provides a measure of
risk control.
We agree that a change from the proposed rule is necessary to
clarify that vessels less than 26 feet are not exempt from the
requirements of this rulemaking when towing a barge carrying oil. In
proposed Sec. 136.105, when identifying exceptions to applicability,
we made clear that towing vessels less than 26 feet that push, pull, or
haul a ``barge that is carrying dangerous or hazardous material'' would
not be excluded from subchapter M applicability. In the NPRM, we did
not define the term ``dangerous or hazardous material'' but in the
preamble we did describe our limitation on the less-than-26-feet
exemption by stating this rule does not apply to towing vessels less
than 26 feet in length ``unless towing a barge carrying oil or other
dangerous or combustible cargo in bulk.'' To make this intent clear in
the regulatory text of the final rule, we have adopted the defined term
``oil or hazardous material in bulk,'' to replace the term ``dangerous
or hazardous material'' in Sec. 136.105(a).
Also, to clarify that only one form of hazardous material needs be
carried to trigger applicability, we changed ``materials'' to the
singular, ``material,'' throughout the final rule. Also, we amended the
definition of ``oil or hazardous material in bulk'' by inserting ``to
carry cargoes'' in its reference to being certified under subchapters D
or O to better reflect the nature of the certifications.
Other companies supported the less-than-26-foot exception. One
commenter acknowledged that the Coast Guard could address smaller
towing vessels in a future rulemaking. An individual thought the
exception should apply to even longer vessels (up to 32 or 40 feet in
length) because such vessels are too small to do any serious towing,
and a company agreed and stated that all its shipyard and harbor
service vessels were 34 feet or longer.
As noted above, the Coast Guard approach in transitioning the
uninspected towing vessel fleet into an inspected status is to do so
incrementally over time. Based on our analysis of risk and a specific
recommendation provided by TSAC,\1\ we proposed that subchapter M apply
to vessels 26 feet and above. This length standard has been used in
various statutes to establish requirements for radiotelephones,
automatic identification systems, electronic charts, and manning for
towing vessels. See 33 U.S.C. 1203 and 1223a, and 46 U.S.C. 8904 and
70114. We find no perfect length for measuring risk, but we believe 26
feet is the best breakpoint to use at this time in our transitioning of
the uninspected towing vessel fleet into an inspected fleet.
---------------------------------------------------------------------------
\1\ ``Report of the Working Group on Towing Vessel Inspection,''
p. 6, submitted to TSAC on September 29, 2005.
---------------------------------------------------------------------------
We received one comment supporting the exception for workboats that
do not engage in commercial towing for hire but perform intermittent
towing within a worksite. A contracting company agreed that increased
equipment requirements are not needed for job site boats. Two
individuals suggested that the exception should be simplified, such as
by including a mileage limitation. A company recommended a slight
expansion of the exception to cover workboats going to or from the
worksite.
The Coast Guard disagrees with the recommendation to include a
mileage limitation or expand the exception, and believes the terms
``worksite'' and ``workboat'' are adequately defined in Sec. 136.110.
The OCMI will make determinations of the boundaries and limitations of
worksites within the OCMI's zone. The OCMI will evaluate the unique
operating conditions and hazards of the area and determine the risks
and mitigating factors necessary to support such operations.
A commenter requested that we treat workboats engaged in oil spill
response activities as exempt, just as we exempt workboats operating in
a worksite.
The Coast Guard has already included an exception for towing
vessels engaged in emergency or pollution response in our definition of
``excepted vessels'' in Sec. 136.110. We do not intend to provide a
general exemption to oil spill response vessels from these rules.
Instead, the OCMI may designate a pollution response area as a worksite
which would afford a towing vessel the opportunity to be exempt from
subchapter M while it is operating exclusively in the worksite if it
qualifies as a workboat under Sec. 136.105(a)(3).
This is consistent with the Coast Guard's intent to provide
inspection standards to certain vessels based on risk and consistent
with the recommendations of TSAC. This rule exempts certain types of
vessels from subchapter M, and relieves other types of vessels,
excepted vessels, from certain equipment requirements due to the nature
of their service. We have made no changes from the proposed rule based
on this comment.
Two commenters suggested adding language to our worksite exception
in Sec. 136.105(a)(3) to include ``maneuvering a tank barge on and off
of a drydock or
[[Page 40012]]
cleaning dock'' to the ``intermittent towing'' covered in the worksite;
and others recommended that we amend our ``excepted vessel'' definition
in Sec. 136.110 to include moving vessels on and off drydocks and to
and from cleaning docks, or shifting vessels within a limited
geographic area, or including a full range of activities commonly
performed by towing vessels in a limited geographic area.
The Coast Guard sees no need for these recommended changes. Our
workboat exception in Sec. 136.105(a)(3) covers the activity the
commenter requests we add. Also, our definition of ``excepted vessel''
in Sec. 136.110 includes towing vessels operating ``within a limited
geographic area.'' Excepted vessels could include towing vessels moving
vessels on and off drydocks and to and from cleaning docks. But we have
left this determination to the discretion of the cognizant OCMI, to be
made on a case-by-case basis.
We received a very large number of comments, particularly from
commenters in the American Waterways Operators (AWO) Responsible
Carrier Program (RCP), that expressed the belief that the TSMS should
be required for all towing companies and should not be optional.
Proponents argued that the TSMS is flexible and scalable, would create
consistency, and addresses human error, the leading cause of towing
vessel accidents. Some of the commenters favored having a third-party
audit option and conservation of Coast Guard resources. A maritime
company stated that the savings accruing from a robust TSMS will far
outweigh any associated cost of development and implementation. One
company observed that a TSMS gives a company the ability to adjust its
system through lessons learned and continuous improvement, rather than
complying with a set of standards once a year. Commenters stated that
the Coast Guard should not make the TSMS optional because of concern
about costs; instead the Coast Guard should eliminate requirements that
are not justified by risk analysis. One commenter warned, however, that
a TSMS is not a substitute for an inspection.
We received many other comments that supported retaining the option
of inspection by the Coast Guard. Proponents favored the flexibility
provided by having the option, the reduced administrative burden of the
Coast Guard inspection, cost efficiency for small businesses, and the
fact that the Coast Guard already has a successful inspection program.
An association has favored a traditional Coast Guard inspection program
for the towing industry. An individual noted that small companies
cannot afford to create and implement a TSMS and would depend on the
Coast Guard to provide yearly inspections and guidance. Other
individuals and a State government recommended that the Coast Guard
should develop a model TSMS that would be easy for small companies to
adopt. Another individual opposed having optional provisions in a
regulation. A commenter pointed out that current form CG-3752,
Application for Inspection of U.S. Vessel, should be revised to add a
block for indicating which option is being used for the towing vessel.
As we noted in the NPRM (76 FR 49979), the NTSB and TSAC have
strongly supported a TSMS, and the approach is supported by the
International Safety Management (ISM) Code. The NTSB disagreed with our
applicability exception for seagoing towing vessels of 300 gross tons
or more subject to the provisions of subchapter I because currently
under 33 CFR part 96 only vessels measuring more than 500 gross tons
and operating on international voyages are required to have SMS and the
subchapter M regulation does not apply to the 22 seagoing towing
vessels of 300 gross tons or more already inspected in accordance with
regulations for cargo and miscellaneous vessels in 46 CFR subchapter I.
The NTSB encouraged the Coast Guard to extend the SMS requirement to
these seagoing vessels by requiring SMS on all seagoing towing vessels
of 300 gross tons or more.
The Coast Guard believes the traditional annual inspection regime
we offer as an option to all towing vessels subject to subchapter M
will provide necessary measures to ensure compliance with subchapter M
requirements and enable us to detect non-compliance.
The Coast Guard notes the NTSB concerns and acknowledges that not
all seagoing towing vessels subject to subchapter I are required to
comply with SMS requirements in 33 CFR part 96, subpart B, for vessels
on international voyages. That applicability threshold of the 500 gross
tons reflects an international standard from the International
Convention for the Safety of Life at Sea, 1974, as amended (SOLAS) for
vessels subject to Chapter IX of SOLAS, Management of the Safe
Operation of Ships. In general, the Coast Guard supports all towing
vessels being subject to a robust and well-functioning safety
management system. Should the Coast Guard decide to extend SMS
requirements to all vessels subject to subchapter M, or to seagoing
towing vessels of 300 gross tons or more that are subject to subchapter
I, we would proceed with a separate rulemaking. We would look at
accident data after this rule becomes effective before proposing such a
rule.
We are considering the suggestion that we amend form CG-3752,
Application for Inspection of U.S. Vessel, to add a block to indicate
which option the towing vessel owner or managing operator is using. For
now, we recommend using the ``Other (Indicate)'' box--e.g., ``Towing
Vessel (TSMS option)'' or ``Towing Vessel (CG Inspection option).''
We received some comments from towing or dredging companies
suggesting exemption from the entire rule for certain vessels, such as
all existing vessels, vessels under 79 feet, vessels under 200 gross
tons, or vessels operating on inland and harbor routes. One company
argued that construction/dredge tugs on the Great Lakes should be
considered for exceptions. Another company requested an exception for
vessels that work as towing vessels less than 10 percent of the year. A
small company with an 18-foot tow vessel and a 33-foot barge that
carries less than 10,000 gallons of diesel requested an exception. Some
commenters suggested that vessels used to move passenger barges should
be specifically excluded. One company recommended that a committee
should be formed to examine which regulatory provisions are appropriate
for particular vessels.
The Coast Guard does not believe that broad exemptions from the
requirement of these rules would serve the intended goal of improving
safety in the towing vessel industry. The Coast Guard seeks a balance
between a tiered implementation of towing vessel safety rules to
vessels with the greatest risk and a prudent exemption of applicability
to towing vessels with less potential risk to life, property and the
environment.
One commenter suggested exemptions for towing vessels operating on
inland and harbor routes not engaged in transporting petroleum
products. In particular, they argued that the TSMS and towing vessel
record (TVR) requirements should only apply to vessels that tow oil and
hazardous material, or are over 79 feet and 2,000 HP.
The Coast Guard disagrees. As we note in our earlier discussion of
part 136 comments, the Coast Guard does not intend to create exemptions
for all types of inland towing operations, or to provide exemptions for
particular areas without cause. We note, however, that under Sec.
136.230 the OCMI may consider
[[Page 40013]]
route-specific requirements of subchapter M when designating a
permitted route.
Regarding the TSMS requirement, it is optional. In this final rule,
the only vessels required to maintain a TSMS are those that choose the
TSMS option. A TSMS, however, may benefit every type of towing vessel
regardless of its service routes, vessel length, or vessel horsepower.
For more details on this, see the discussion in section IV.B and the RA
for the final rule (in the docket). As for the TVR requirement, the
vessel owner or managing operator has the option of maintaining it
electronically or on paper, and for towing vessels with a TSMS, the
required records may be maintained in another record specified by the
TSMS. It is essential for maritime safety that data we require in Sec.
140.915 be recorded. We discuss the TVR requirement, and the various
forms it may take, in more detail in our discussion of part 140
comments.
We received one comment that favored applying the rule to vessels
towing oil and providing harbor assist to large ships, applying a less
costly system to other vessels, and clarifying exemptions. Many
commenters agreed that rules designed for offshore or ocean routes or
large rivers were not appropriate for vessels in canals, harbors, or
shallow rivers. The commenters opposed a one size fits all approach,
and noted that Congress intended different standards for various types
of towing vessels. One of the commenters favored grandfathering
existing vessels into compliance for as many of the requirements as
practicable. Another commenter, however, noted that risks are similar
for inland and harbor towing as for coastwise or ocean towing, and
solutions, such as planning and testing, should be similar. A towing
company opposed having more stringent rules for tank barge operators
than for companies that haul dry cargo barges.
The Coast Guard agrees that there are different characteristics,
methods of operation, and nature of service of towing vessels that
require unique application of requirements. The Coast Guard believes
that the utilization of a TSMS allows the operator to tailor safety
processes to the unique conditions in which the vessel and company
operate. A TSMS is scalable, dynamic, and customized by the operator
for the unique risks, challenges, and operating environments
anticipated. Some hazards are universal to all vessels regardless of
where they operate. Therefore, the Coast Guard believes that certain
minimum standards are necessary to mitigate these risks and seeks to
apply them to all towing vessels subject to this rule. The additional
variations necessitated by the type and area of operation can be
accommodated by a TSMS.
An association questioned whether ``Lugger Tugs,'' towing vessels
that carry cargo, would be inspected as towing vessels or as offshore
supply vessels. One individual urged the Coast Guard to ensure
consistency in regulatory enforcement and fairness for all vessels.
The Coast Guard notes that towing vessels that carry cargo for
hire, or conduct other regulated activities--such as carrying
passengers for hire, would likely be subject to regulations contained
in other subchapters. Vessels engaged in two (or more) separate
regulated activities are referred to as being in ``dual (or multiple)
service.'' Towing vessels that want to conduct activities other than
just towing need to seek approval from the OCMI issuing the COI. The
Coast Guard provides guidance to all OCMIs to help ensure consistency
in regulatory enforcement and fairness for all vessels. In the example
of a towing vessel carrying cargo, that vessel meets the definition for
two vessel types and would have to meet additional requirements to
carry cargo on the towing vessel. Numerous parameters, including vessel
characteristics and the operations conducted by the vessel, would
determine under which vessel type the vessel would be inspected.
For clarification, we amended our description of ``public vessel''
in Sec. 136.105 to match the term defined in 46 U.S.C. 2101. We also
point to the 46 U.S.C. 2101 definition for the meaning of the term in
Sec. Sec. 2.01-7, 15.535, and 15.610 of this chapter.
Definitions
We received several hundred comments suggesting edits, deletions,
or additions to our proposed definitions in Sec. 136.110. The
discussion of changes made to the individual terms is as follows:
``Accepted Safety Management System''
We deleted our proposed definition of ``Accepted Safety Management
System'' because we did not propose to use the term within the
regulatory text of the NPRM and do not use it in this final rule.
''Audit''
We received a suggested amendment of the first sentence in our
definition of ``audit'' that would replace ``planned arrangements'' and
``arrangements'' with ``TSMS.'' One commenter suggested deleting the
phrase ``observing persons performing required tasks'' in paragraph
(1)(iii) of the proposed definition of ``audit,'' because there is no
definition for ``required task.''
The Coast Guard partially agrees with the first comment. Not all
towing vessels will operate in accordance with a TSMS. Under Sec.
138.225, some vessels may meet TSMS requirements by complying with ISM
Code requirements of 33 CFR part 96 or some other SMS that the Coast
Guard has accepted and deemed to meet subchapter M TSMS requirements.
Rather than adopting the suggested edit, we deleted ``planned
arrangements'' in favor of ``requirements'' and have made clear what
requirements we intend to be covered by our Sec. 136.110 definition of
``audit'' by specifying ``TSMS or other applicable SMS planned
arrangements.''
In response to the ``required task'' comment, the Coast Guard has
edited the definition of ``audit'' in Sec. 136.110 by replacing the
term ``required tasks'' with ``specific tasks within their assigned
duties,'' in paragraph (1)(iii) and ``specific tasks'' with ``their
assigned duties'' in paragraph (1)(ii). We used the term ``duties''
which is used in Sec. 138.220(b)(2) to describe training for
operational duties and duties associated with the execution of the
TSMS.
''Authorized Classification Society''
We received a comment from a classification society requesting that
the Coast Guard delegate the inspection of towing vessels to authorized
classification societies. In response, as we discuss in more detail in
our TPO preamble section (IV.I), we have amended Sec. 139.110 to
clarify the distinction between audits and surveys. For the purpose of
audits, a recognized classification society meets the requirements of a
TPO and may work as a third-party auditor. For the purpose of surveys,
an authorized classification society meets the requirements of a TPO
and may work as a third-party surveyor. Further, we have amended Sec.
144.140 to include certain authorized classification societies as being
qualified to conduct a verification of compliance with design
standards. Therefore, we have incorporated the part 8 definition of
``authorized classification society'' into this final rule.
``Buoyant Apparatus'' or ``Inflatable Buoyant Apparatus''
We received five comments, primarily from maritime companies and
professional associations, suggesting the addition of a definition for
the terms ``buoyant apparatus'' and ``inflatable buoyant apparatus''
because the terms are not defined in the proposed part
[[Page 40014]]
141. One maritime company suggested the following text for the
definition of ``buoyant apparatus'': ``Buoyant apparatus is flotation
equipment (other than lifeboats, life rafts, and personal flotation
devices) designed to support a specified number of persons in the
water, and of such construction that it retains its shape and
properties and requires no adjustment or preparation for use.'' The
same commenter offered the following text for the definition of
``inflatable buoyant apparatus'': ``Inflatable buoyant apparatus is
flotation equipment that depends on inflated compartments for buoyancy
and is designed to support a specified number of persons completely out
of the water.''
The Coast Guard does not agree that it is necessary to include
definitions for commonly understood lifesaving apparatus in subchapter
M. These terms are already defined in 46 CFR, part 160--Lifesaving
Equipment, in Sec. 160.010-2. We did not make any changes from the
proposed rule based on these comments.
``Class II Piping Systems''
We deleted this definition as this term is no longer used within
this subchapter.
``Cold Water''
A maritime trade association had no objection to the proposed
definition of ``cold water,'' and understood its application in Table
141.305 regarding survival craft; however, the commenter was unaware of
any deficiency in the survival craft currently in use and requested
that only a single standard apply to the Great Lakes.
The Coast Guard notes that the definition of cold water is
consistent with other regulations and existing Coast Guard policy (NVIC
7-91) lists the areas designated as cold water. While the Great Lakes
are generally considered cold water, several lakes are not designated
as cold water during certain months of the year. The Coast Guard
believes that specifying all of the Great Lakes as all cold water, year
round, would impose an unnecessary burden on those towing vessels which
operate seasonally when certain lakes are not designated as cold water.
However, this does not prevent a vessel owner or managing operator from
voluntarily carrying the equipment required on cold water at all times.
``Consideration''
We deleted this term as the proposed definition was identical to 46
U.S.C. 2101 and the term was only used once in that context, so instead
we added a reference to 46 U.S.C. 2101 directly to our definition of
``assistance towing'' in Sec. 136.110.
``Crewmember''
Two commenters felt that the term ``crewmember'' should be defined
as an individual who is listed on Form CG 735(T): Master's Report of
Seamen Shipped or Discharged, so as to avoid any misunderstanding
related to vendors who are onboard for maintenance or repair.
The Coast Guard has revised the definition in Sec. 136.110 to
match an existing definition of ``crewmember'' in 46 CFR 16.105,
paragraph (2)(iv) of which would exclude vendors who are onboard to
conduct maintenance or repair work. Also, please note that the COI will
list crewmembers required to be onboard and persons in addition to the
crew that may be carried onboard the vessel.
``Disabled Vessel''
One commenter noted that some dead ships can range up to 900 feet
in length and suggested that we clarify our definition of ``disabled
vessel'' and set some limit on a dead ship's size for purposes of
assistance towing. We note that a dead ship is a ship without the
benefit of mechanical or sail propulsion. The commenter's concern
appears based on Sec. 136.105 excluding vessels used for assistance
towing from subchapter M applicability. We defined ``assistance
towing'' to mean ``towing a disabled vessel for consideration.''
The Coast Guard disagrees about the need to amend our proposed
definition of ``disabled vessel.'' We note that a dead ship would fit
our definition if the vessel regularly operated under its own power but
was temporarily disabled. The Coast Guard does not see a need to
include a specific length criterion for dead ships in its definition of
``disabled vessel'' because not all assistance towing vessels are the
same length or horsepower and the local COTP would assess the size and
number of towing vessels needed to assist a dead ship.
``Downstreaming''
A maritime company suggested we insert ``attempting to land'' in
place of ``landing'' in our proposed definition of ``downstreaming.''
The Coast Guard acknowledges that downstreaming includes unsuccessful
as well as successful attempts to align with a barge or other object,
but has replaced the word ``landing'' with the words ``in order to
approach and land squarely on'' instead of the commenter's suggested
words. Also, we amended the definition by replacing the limited
reference to the ``end of the barge'' with ``a fleet, a dock, or
another tow.'' Finally, we inserted the words ``with the current'' to
describe downstreaming and to reflect the nature of our concern in
Sec. 140.610(e) where we require all exterior openings at the main
deck level to be closed when a towing vessel is downstreaming.
''Engine Room''
In reviewing the definition of ``engine room'' in the NPRM, the
Coast Guard decided the word ``area'' was too broad; accordingly, we
have replaced ``area'' with ``space,'' which is commonly used and
understood in the maritime industry to refer to a specific room (also
see the definition for ``Accommodation space'' in Sec. 136.110).
``Element''
After reviewing this definition, which as proposed, only applied to
safety management systems, we decided to delete it as the term
``element'' is also used within the subchapter with regard to surveys
and audits. Additionally, whenever the term is used, its meaning is
clear.
``Essential System''
A company requested that we replace references to ``vessel'' with
``towing vessel'' in our definition of ``essential system.'' Another
commenter noted that the definition of ``essential systems'' is similar
to the term ``critical systems'' in the ISM code, suggesting that the
terms be aligned or at least cross-referenced for clarification. An
association whose members trade on all five of the Great Lakes noted
that the definition of ``essential system'' is very broad and needs to
be scaled back to systems that are truly essential so as to help ensure
consistent application, and that as written, it is difficult to
identify a shipboard system other than galley equipment that is not
essential.
Regarding the first comment, the Coast Guard disagrees with the
suggestion because this entire subchapter pertains to towing vessels,
and we believe references to ``vessel'' in our definition of
``essential system'' clearly refer to towing vessel. We agree it is
important to distinguish ``vessel'' from ``towing vessel'' in the few
contexts in subchapter M where it is necessary, but we do not view our
definition of ``essential system'' as one of them. We made no change
from the proposed rule based on this first comment. In response to the
second comment, to better align our definition with critical systems in
ISM code, we added language to include critical systems identified in a
part 96-compliant SMS. As for scaling back
[[Page 40015]]
systems included, the Coast Guard disagrees. We believe that the
definition of ``essential system'' accurately covers those systems that
are required in subchapter M to ensure a vessel's survivability,
maintain safe operation, control the vessel, or ensure safety of
onboard personnel.
``Excepted Vessel''
Many commenters, including an association and various towing
companies, supported the concept of ``excepted vessel,'' under which
towing vessels operating solely in fleeting and harbor services would
not be required to meet certain equipment requirements in part 143.
Several of the commenters suggested that the definition of ``excepted
vessel'' should be clarified or expanded to specify activities such as
moving vessels on and off drydocks or to and from cleaning docks. Also,
commenters stated the definitions should encompass the full range of
activities commonly performed by towing vessels in limited geographic
areas or harbor assist service and that failure to do so will
potentially endanger the economic viability of small to medium size
harbor/fleeting companies and consequently, the small to medium size
ports and industries they service. One towing company requested
clarification of the meaning of ``solely,'' because towing vessels
often engage in different types of towing operations throughout their
life-spans. An individual recommended that the term ``harbor assist''
in the definition of ``excepted vessel'' should be replaced by
``assistance towing'' to be consistent with the applicability exclusion
paragraph in Sec. 136.105(a)(2)(i) or with ``recreational assist.''
Also a company pointed to the need to improve our definition of
``excepted vessel'' in Sec. 136.110 specifically as it applies to
harbor assist vessels, a common term that it noted was used for vessels
that conduct ship assist activities helping larger vessels in and out
of port. One towing company opposed the concept of excepted vessels and
expressed the view that all towing vessels should meet the same
requirements. Another company also opposed exempting fleeting or
limited route vessels from the proposed provisions, because such
vessels may operate in close proximity to chemical plants and barge
fleets. The commenter warned that such vessels may have minimal safety
standards and operators may modify their vessels to benefit from the
proposed provisions. An individual provided examples of vessels that
work in fleeting areas but also travel many miles away from their base
of operations without proper equipment. One commenter pointed out that
the example of a limited geographic area (``a fleeting area for barges
or a commercial facility'') in the definition of ``excepted vessel''
conflicts with the proposed definition of ``limited geographic area.''
The Coast Guard views the excepted vessel category as a valuable
tool to more precisely tailor regulations. We have amended the
definition of ``excepted vessel'' by removing the examples of limited
geographic area activities. The term ``limited geographic area'' is
defined in Sec. 136.110 and allows local COTP discretion to determine
limited geographic areas for her or his zone. Further, we note that, in
addition to certain system and equipment requirements in part 143,
excepted vessels are also not subject to fire protection requirements
in Sec. Sec. 142.315 through 142.330. In terms of clarifying the
definition, we did change it to make it clear that excepted vessels are
subject to subchapter M, but not to certain requirements in the
subchapter. Accordingly, we changed ``exempted'' to ``excepted'' when
describing action by the OCMI that would make a towing vessel excepted.
As for the recommendation that we clarify or expand on the list of
specific activities within limited geographic area and harbor assist
service, the Coast Guard disagrees. Instead, we have removed the
examples of activities within a limited geographic area in favor of
leaving the discretion with the local COTP, as stated in the definition
of limited geographic area, and not have what some may read as an
exclusive list of examples in our definition of ``excepted vessel''
that references limited geographic area. However, additional guidance
beyond this rule may be developed to help the industry and public
understand how operating in a limited geographic area may impact the
equipment requirements if they are an ``excepted vessel''. The
definition of ``harbor-assist'' remains identical to the existing
definition in 46 CFR 10.107. Further, the definition of ``excepted
vessel'' also contains the provision for the cognizant OCMI to except
vessels based on reasons submitted by the vessel owner or managing
operator as to why the vessel does not need to meet certain system and
equipment requirements in parts 142 and 143 for the safe operation of
the vessel. We believe that the ability to except certain vessels from
specific equipment carriage requirements provides relief from the
potential economic burden on these vessel owners.
As for clarifying the meaning of ``solely'' in our definition of
``excepted vessel,'' in Sec. 136.110, the Coast Guard sees no need to
do so. The definition says ``[u]sed solely,'' for any one or a
combination of the services listed. Therefore, subchapter M provisions
not required of excepted vessels would be required of a towing vessel
subject to subchapter M whenever it is conducting towing operations not
listed in the definition of ``excepted vessels,'' unless it has been
excepted by the cognizant OCMI. When a vessel is exclusively used in
one or more of the excepted activities it is not subject to certain
provisions of Subchapter M. However, if the vessel engages in
activities that are not excepted, then it may be subject to those
provisions even if this activity only occurs intermittently.
In the NPRM, we proposed a definition for harbor-assist that is
identical to the existing definition in 46 CFR 10.107. To be excepted,
a vessel would need to be subject to subchapter M, and in the
applicability section, Sec. 136.105, we state that subchapter M is not
applicable to towing vessels ``used for assistance towing,'' so we
would not include ``assistance towing'' in activities for excepted
vessels. We also exclude towing vessels engaged in towing recreational
vessels for salvage, or transporting or assisting the navigation of
recreational vessels within and between marinas and marina facilities,
within a limited geographic area. Harbor assist and assistance towing
are two separate and distinct operations, both of which we have defined
in Sec. 136.110. We have made no changes from the proposed rule based
on these comments.
We have amended the definition of ``excepted vessel'' to remove the
reference to ``restricted service'' and, as noted above, to remove
examples from the limited geographic area sentence that may have been
too narrowly focused and conflicting with the definition of limited
geographic area.
``Excursion Party''
One commenter suggested that the term ``excursion party'' be
defined as ``a group visiting the vessel for no specific business
purpose.''
The Coast Guard added a definition for ``excursion party'' in this
final rule; however we do not agree with the commenter's proposed
definition. As addressed in Sec. 136.245, any personnel (business,
personal, etc.) not authorized to be carried by the COI would be
considered by the OCMI when issuing an excursion permit.
``Flammable Liquid''
One commenter suggested that we define ``flammable liquid'' and
``combustible liquid'' as they are
[[Page 40016]]
defined in 46 CFR 30.10-15 and 30.10-22.
The Coast Guard partially agrees. The definitions in 46 CFR part 30
apply specifically to equipment required on tankers. The Coast Guard
believes that adding these definitions would not provide any additional
clarification for these rather common terms used in our fire protection
and machinery and electrical systems and equipment regulations in 46
CFR parts 142 and 143. However, we did modify part 143 to reference
part 30.
``Fleeting Area''
We received comments from two maritime companies regarding our
proposed definition of ``fleeting area'' in Sec. 136.110. One
commenter suggested inserting the words ``or wait to load or unload
cargo'' after ``where individual barges are moored or assembled to make
a tow,'' and to insert ``towing'' before ``vessel'' when referencing
another vessel that will transport the barges in the tow to various
destinations.
The Coast Guard agrees with the second recommendation, but not the
first. The inclusion of the term ``towing'' to the description of
``vessels'' makes the definition clearer. We disagree with the first
recommendation to insert the words ``or wait to load or unload cargo''
because here we are defining ``fleeting area'' which is focused on
making a tow, as opposed to ``limited geographic area'' which may cover
more activities. Reflecting the definition of ``limited geographic
area,'' we also inserted, ``as determined by the local Captain of the
Port (COTP),'' after a reference to a limited geographic area in our
``fleeting area'' definition.
``Fully Attended''
We deleted the definition of ``fully attended'' because we did not
use the term in this final rule, nor did we use the term within the
regulatory text of the NPRM.
``Harbor-Assist''
A maritime company suggested that for our definition of ``harbor-
assist,'' we add ``shift'' to ``dock, undock, moor, or unmoor,'' and
tie the escort of a vessel with limited maneuverability to these
actions by removing the disjunctive ``or'' we have placed between those
activities, and to add two more activities at the end of the definition
``to shift or tow barges within a limited geographic area; or to
respond to an emergency situation or pollution event involving towing
vessels, vessels with limited maneuverability, or barges.'' Another
commenter agreed and also felt that the definition should include
inland harbor and fleet vessels.
The Coast Guard disagrees. Regarding the recommendation to delete
``or'' and restrict both ``dock, undock, moor, shift, or unmoor,'' and
``escorting'' to towing vessel actions involving a vessel with limited
maneuverability, we do not see a need for this change to this
definition, which we adopted word-for-word from 46 CFR 10.107. For a
vessel to be escorted, the vessel needs some independent maneuvering
capability, which is not be true of all vessels a towing vessel may
dock, undock, moor, or unmoor. We do not need to add ``shift'' to the
definition because we believe any shifting is already captured by the
words ``maneuvers to dock, undock, moor, or unmoor a vessel.'' Also,
there is no need to add shifting barges in a limited geographic area
nor do we wish to add towing barges in a limited geographic area to
this definition. While not self-propelled, a barge would be included in
the definition's reference of a vessel, and we do not view harbor-
assist as encompassing the full range of activities covered by
``towing.'' Finally, we do not see a need to add responding to an
emergency situation or pollution event involving towing vessels,
vessels with limited maneuverability, or barges to our definition of
``harbor-assist.'' Both of these activities are already included within
our ``excepted vessel'' definition. We have made no changes from the
proposed rule based on these comments; our subchapter M ``harbor-
assist'' definition remains consistent with the 46 CFR 10.107
definition.
``Horsepower''
A professional association and private citizen expressed support
for our proposed definition of ``horsepower'' which is that stated on
the COI which reflects ``the sum of the manufacturer's listed brake
horsepower for all installed propulsion engines.'' We made no changes
from the proposed rule based on these comments.
``Independent''
One commenter suggested revising or deleting the definition of
``independent'' because it appears only in Sec. Sec. 143.300 and
143.435.
Our proposed definition of ``independent'' in Sec. 136.110 is and
was intended to be focused on equipment. We agree that it is not the
appropriate definition for the use of ``independent'' outside of part
143, Machinery and Electrical Systems and Equipment. In response to
this comment, we have removed the definition from Sec. 136.110 where
it would have been applicable to all of subchapter M and have placed it
in part 143's definition section, Sec. 143.115, where it is only
applicable to that part. We believe the definition is useful as limited
to that part and therefore, we have only restricted, and not deleted,
the definition.
We use the word ``independent'' in a different context when we
describe TSMSs and TPOs, as in our definition of ``audit'' and ``TPO''
in Sec. 136.110, and Sec. Sec. 138.205(b)(4), 138.310(d)(4),
139.115(b)(1) and 139.120(p). In that context we will use the common
definition of the term--to be free from the influence, control, or
determination of another or others.
''Inland Waters''
One commenter suggested deleting the proposed definition for
``inland waters'' because it is not defined in other 46 CFR and would
be confusing when considering classes of vessels. The commenter felt
that the terms ``Inland waters, excluding Western Rivers'' can be used
instead.
The Coast Guard disagrees. ``Inland waters'' is defined in 46 CFR
10.107 and our subchapter M proposed definition aligns with that
existing definition. To address the reach of this and other Sec.
136.110 definitions, we have inserted the introductory text of ``As
used in this subchapter'' in Sec. 136.110, which reflects our initial
intent that definitions in that section have limited applicability.
Also, in subchapter M we only use the term ``inland waters'' once, in
the definition of ``Western Rivers,'' and do not view it as generating
confusion regarding classes of vessels. We have made no changes from
our proposed definition of ``inland waters'' based on this comment.
``International Voyage''
We received comments from two commenters requesting that the
proposed definition of ``international voyage'' not include Canadian
waters that are transit waters between Alaska and other States. The
commenters noted that towing vessels do not always make port calls in
Canada during passage and are not considered international voyages and
subject to SOLAS.
The Coast Guard does not see a need to amend our definition of
``international voyage.'' Under our definition, towing vessels
transiting directly from a U.S. port in the contiguous 48 states to the
state of Alaska or the state of Hawaii would not be considered on an
international voyage for purposes of subchapter M because they would
not be going to a port outside the United States.
[[Page 40017]]
''Lakes, Bays, and Sounds''
We received two comments suggesting the proposed definition of the
term ``lakes, bays, and sounds'' be clarified to state that the
operations on Kentucky Lake are not to be included in the current
definition of ``lakes, bays, and sounds.'' Another commenter suggested
that the definition is too broad to include lakes, bays, and sounds in
inland river systems, and should be revised to exempt lakes, bays, and
sounds that are part of the inland or Western River systems.
The Coast Guard uses the term ``lakes, bays, and sounds'' in Sec.
136.230 as one of a number of major headings under which each area of
operation--referred to as a route--is described on a towing vessel's
COI. With the exception of ``rivers,'' ``Lakes, bays, and sounds,'' is
the least severe of the routes. Our definition matches that used for
small passenger vessels in subchapter K (46 CFR 114.400) and small
passenger vessels in subchapter T (46 CFR 175.400). The Coast Guard
does not intend to create exemptions for all types of inland towing
operations, or to provide exemptions for particular areas without
cause. We note, however, that under Sec. 136.230 the OCMI may consider
route-specific requirements of subchapter M when designating a
permitted route. We have not made a change from the proposed rule based
on these comments.
``Limited Geographic Area''
One commenter asked for further definition of the term ``limited
geographic area.''
Our definition of ``limited geographic area''--``a local area of
operation, usually within a single harbor or port''--is intended to be
flexible enough to reflect the wide range of local operations. The
local COTP has the discretion to determine limited geographic areas for
his or her COTP zone. We do use the term ``limited geographic area'' as
a factor in our definition of ``excepted vessel,'' but we believe it is
appropriate to not impose certain requirements, such as for additional
fire-extinguishing equipment, on vessels we identify as excepted
vessels, or impose less rigid lifesaving equipment requirements on
vessels that operate in a limited geographic area. We assess excepted
vessels and certain vessels operating in a limited geographic area as
presenting a reduced risk with respect to certain subchapter M
requirements.
``Major Conversion''
One commenter requested that we change our definition of ``major
conversion.'' First, the commenter would establish a threshold up front
that all the factors discussed must meet--that changes result in
``essentially a new towing vessel''--while also leaving that same
standard in the last (``otherwise'') factor. Second, the commenter
would move our reference to a determination by the Coast Guard to the
end of the definition. And third, the commenter would limit the
``substantially prolonging the life of the towing vessel'' factor by
expressly excluding ``the replacement of propulsion engines'' from that
factor.
The Coast Guard agrees with the recommendation that we move our
reference to a determination to the end of our definition of ``major
conversion.'' This change makes our definition more consistent with the
statutory definition in 46 U.S.C. 2101 (14a) and our existing 46 CFR
28.50 definition in subchapter C for uninspected vessels. We also
clarified that reference from vaguely stating ``as determined by the
Coast Guard'' to ``as determined by the Commandant.'' This change
better aligns the definition with the phrasing used in existing text.
We received comments from professional associations, maritime
companies, and other companies who expressed concern over the phrase
``substantially prolongs the life of the vessel'' in the proposed
definition of major conversion. Commenters felt that the definition
should be clarified to explain that routine activities like maintenance
or part replacement are not considered major conversions, but only
those activities that would result in the converted vessel becoming a
new vessel. Two commenters, a private citizen and maritime company,
requested examples of what is considered a major conversion. Another
maritime company suggested that the term, as it is currently proposed,
would apply ``new vessel'' requirements to existing vessels, and
discourages the maintenance of or investment in existing towing
vessels.
We see no reason to adopt the commenter's two other suggested
changes that deviate from the statutory definition. The first change
would introduce an unexplained redundancy and the second would
expressly exclude the replacement of propulsion engines from
consideration of actions that substantially prolongs the life of the
vessel. As reflected above, based on these comments, we have revised
our definition to make it consistent with existing definitions in 46
U.S.C. 2101(14a) and 46 CFR 28.50 of subchapter C, and we did not adopt
the commenters' two other suggested changes. The Coast Guard believes a
replacement of propulsion engines is normally undertaken to prolong the
service life of a vessel, and therefore fits the definition of ``major
conversion.'' To match the wording in 46 CFR 28.50, we changed ``Coast
Guard'' to ``Commandant'' and added part 28's definition of
``Commandant'' to Sec. 136.110. Major Conversion determinations are
made by the Coast Guard Marine Safety Center on a case-by-case basis.
``Major Non-Conformity''
One commenter suggested the following text for the definition of
``major non-conformity'' which specifically identifies deviations as
being from the safety management system and replaces our reference to
the lack of effective and systematic implementation of the TSMS as
being included as a major non-conformity, to references to items that
would be considered a more significant breakdown or failure of the SMS:
``Major Non-Conformity means an identifiable deviation to the safety
management system which poses a serious threat to personnel, vessel
safety, or a serious risk to the environment; where a large number of
non-conformities exist in an area or where similar non-conformities
exist throughout the company or vessel then this demonstrates a more
significant breakdown or failure of the safety management system.''
The Coast Guard has simplified its definition of ``major non-
conformity'' to include the term ``non-conformity''; by referring to
``non-conformity'', we are including a failure to conform to the SMS.
Even though the definition in 33 CFR part 96, our regulations
implementing SOLAS and ISM Code provisions for safety management
systems, includes an example of a lack of effective and systematic
implementation, we have deleted that language from the definition in
Sec. 136.110. We did not agree with the suggested definition, which
could be read as creating an additional standard for a ``more
significant breakdown.''
``New Towing Vessel''
One commenter suggested that we remove the following factor in our
proposed definition of ``new towing vessel'': Towing vessels that
underwent a major conversion initiated on or after the effective date
of our final rule.
The Coast Guard disagrees with this recommended change to our
definition of ``new towing vessel.'' Standards for new vessels are
sometimes set higher than for existing vessels as a means of ensuring
improved safety standards over
[[Page 40018]]
time without imposing undue costs on existing vessels. If we left major
conversions out of the definition of new vessels, then we would provide
incentive for existing vessels to undergo major conversions to avoid
having to meet new vessel standards. Granting existing vessels the
status of being ``grandfathered'' is a valuable regulatory approach,
but factoring major conversions into our definition of ``new vessels''
provides a means of controlling a potential abuse of ``grandfathered''
status and is consistent with other 46 CFR subchapters. We have not
made any changes from the proposed rule based on this comment.
However, upon further review of the definition, we determined that
it should be amended for other reasons. As proposed, the definition was
based on the date the vessel was contracted for or the date the keel
was laid. More often than not, these will be two separate dates which
could lead to confusion as to whether or not a vessel is a ``new towing
vessel.'' We amended the definition to base the determination on the
date the keel was laid or the vessel is at a similar stage of
construction in order to account for those instances where a vessel
might be built in a modular mode of construction. We also removed
paragraph (3) of the definition regarding vessels built without a
contract because we viewed it as unnecessary given our removal of a
reference to a contract in paragraph (a).
The second reason for amending the definition is to ensure that
owners, designers, and builders have sufficient time to adapt and
incorporate the requirements applicable to new vessels into the design
and construction of a vessel. As proposed, the date for a new vessel
was 30 days after the regulation publication date. In reviewing a
commenter's request for more time to comply with the final rule, we
concluded that 30 days is too short a time period. It would be very
difficult and costly to make changes in line with the ``new vessel''
requirements in those instances where the design of a vessel is almost
complete. We have determined that for smooth transition and
implementation, an additional year is needed, and we amended the
definition accordingly.
``Objective Evidence''
One commenter recommended we add records of an approved third-party
organization as another example in our definition of ``objective
evidence'' in Sec. 136.110.
The Coast Guard agrees with this suggested change and has amended
the definition accordingly. We already list classification society
reports as an example, and would consider reports or records from a TPO
as a similarly appropriate example reflecting an independent
assessment.
``Pressure Vessel''
One commenter suggested we amend our definition of ``pressure
vessel'' to simply refer to closed containers designed to hold gases,
liquids or a combination at a pressure substantially different from
ambient pressure--instead of just ``under pressure.'' Another commenter
suggested adding the following text as a definition for ``heating
boiler'': ``An enclosed steel or cast iron container that uses an
energy source to heat water (or make steam) that is sent through heat
radiating devices in the machinery space to heat a towing vessel.''
The Coast Guard agrees with the comment regarding pressure being
substantially different from ambient pressure and in response inserted
the words ``greater than atmospheric pressure'' at the end of the
definition. We also agreed with the need to incorporate language to
include boilers so we broadened the definition of ``pressure vessel''
to include ``unfired'' and ``fired'' pressure vessels which incorporate
boilers.
``Random Selection of a Representative Sampling''
One commenter suggested the need for defining ``random selection of
a representative sampling'' for better consistency in the auditing
process.
We do not agree that a specific definition is needed for ``random
selection of a representative sampling.'' We feel that ``random
selection of a representative sampling'' is a common safety management
system and auditing term that should be recognized and understood by
any ISO-9001-trained internal or external auditor. In a related
external audit provision in Sec. 138.410(f), we removed a vague
reference to samples having to be statistically valid.
``Recognized Classification Society''
We shortened the definition of ``recognized classification
society'' by focusing on the core of the definition: A classification
society recognized by the Coast Guard in accordance with 46 CFR part 8.
``Recognized Hazardous Conditions''
We deleted the definition of ``recognized hazardous conditions''
because we do not use the term in this final rule, nor did we propose
to use it in the regulatory text of the NPRM.
``Rescue Boat''
One commenter noted that ``skiff'' is referenced in Sec.
140.420(d)(4), which contains a training requirement if the skiff is
``listed as an item of emergency equipment to abandon ship or man
overboard recovery'' and that ``rescue boat'' also appears in Sec.
140.420. The commenter recommends that if a rescue boat is a separate
craft from a skiff, as our use of the two terms in Sec. 140.420
suggests, then we should define ``rescue boat'' in Sec. 136.110 in
addition to having defined ``skiff'' there.
The Coast Guard agrees with the recommendation that we add a
definition of ``rescue boat'' to Sec. 136.110. We do consider a rescue
boat as a separate craft from a skiff. We have added the same
definition of ``rescue boat'' in Sec. 136.110 that appears in three
existing Coast Guard regulations. This definition distinguishes the
dedicated purpose of a rescue boat--to rescue persons in distress and
to marshal survival craft--from the general nature of a skiff, a small
auxiliary boat carried onboard a towing vessel that might be used in
emergency situations.
``Replacement in Kind''
We have added a new definition to Sec. 136.110 for the term
``Replacement in kind'' which was undefined in the NPRM but appeared
several times in part 143. ``Replacement in kind'' generally means
replacing a failed component with the same component, or a part with
the same technical specifications as the original design. Replacements
in kind may normally be accomplished by the crew, or a shipyard, as
part of routine maintenance or repairs, and may not require
notification to the OCMI.
``Safety Management System''
Two commenters recommended inserting the following 11 italicized
words in our proposed definition of ``Safety Management System'':
Safety Management System means a systematically structured and
documented system enabling the owner or managing operator and towing
vessel personnel to identify and manage interrelated process and
effectively implement the owner or managing operator's safety and
environmental protection policies and that is routinely exercised
and audited in a way that ensures the policies and procedures are
incorporated into the daily operation of the vessel and company.
In addition, one commenter recommended replacing the word
``audited'' with ``evaluated'' in the above definition.
The Coast Guard partially agrees with the proposals to change this
definition.
[[Page 40019]]
We have amended the definition by adopting a modified version of our 33
CFR part 96 definition that identifies those enabled by the SMS and the
purpose of the SMS with respect to subchapter M. We disagree with
changing the term from ``audited'' to ``evaluated'' as an audit is a
clearly defined and recognized activity with respect to safety
management systems.
``Survey''
One commenter suggested that the difference between ``audit'' and
``survey'' needs to be clarified in Sec. 136.110, as well as with
respect to the Coast Guard option under proposed Sec. 136.150 and the
TSMS option under proposed Sec. 136.205. Another commenter noted that
these two terms, in addition to ``inspection'' are used interchangeably
in the NPRM, as are the words ``auditor, inspector, and surveyor.''
There were also comments about the need to clarify the frequency of
audits, inspections, and surveys, and which ones may be conducted by
third parties.
The Coast Guard believes that our definitions of these two terms
are clearly distinguishable. Our definition of ``survey'' in Sec.
136.110 focuses on compliance with subchapter M and other authorities--
``an examination of the vessel, its systems and equipment to verify
compliance with applicable regulations, statutes, conventions, and
treaties.'' Our definition of ``audit'' in Sec. 136.110 is more
focused on systems set up to ensure that compliance. Neither proposed
Sec. 136.150, Annual and periodic inspections, nor proposed Sec.
136.205, which describes the COI, refer to audits or surveys.
Regarding the word ``inspection,'' we did not define that term
which applies to all vessels subject to subchapter M because they are
all ``subject to inspection'' under 46 U.S.C. 3301. In this rule, we
primarily use the word ``inspection'' to distinguish a towing vessel
that has selected the option of an annual inspection by the Coast Guard
instead of a TSMS option under which surveys and audits are conducted.
But regardless of the option selected, under proposed Sec. Sec.
136.140 and 136.145 the Coast Guard would conduct inspections for
certification on all vessels seeking to obtain or renew a COI. An
inspection is similar to a survey in that both involve an examination
of a vessel to determine whether it is in compliance with applicable
regulations or other legal authorities. In reviewing proposed
Sec. Sec. 136.140 and 136.145, however, we reorganized these
requirements and moved then into subpart B, Certificate of Inspection,
as Sec. Sec. 136.210 and 136.212.
We believe this response should clarify what we mean by the use of
these terms but knowing the frequency of these activities may also
help. Section 137.200 identifies the frequency of inspections
associated with the Coast Guard inspection option. For vessels under
the TSMS option, external and internal surveys and audits are required.
Sections 137.205 and 137.210, respectively, identify the frequency of
surveys under the external and internal survey programs. Finally,
Sec. Sec. 138.310 and 138.315, respectively, identify the frequency of
external and internal audits.
``Third-Party Organization''
We received comments suggesting the need to clarify or remove our
proposed definition of ``third-party organization.'' The commenter
suggested that the term is inconsistent with our repeated use of the
proposed term ``approved third-party organization'' in part 139 and
would be redundant if we adopted his recommendation to amend our
proposed definition of ``approved third party'' to make it clear it
only refers to TPOs. One commenter suggested converting our proposed
definition of ``approved third party'' in Sec. 136.110 to a definition
of ``approved third party organization'' and to add ``organization'' to
the definition so the term ``means a third party organization approved
by the Coast Guard in accordance with part 139 of this subchapter.''
The Coast Guard agrees that our proposed definitions of the terms
``approved third party'' (ATP) and ``third-party organization'' (TPO)
may cause confusion, so we deleted the term ATP and modified any
references to approved third-party surveyors or auditors to make clear
that such surveyors or auditors would be from a third-party
organization or TPO. Also, we deleted the word ``approved'' used in
front of TPO because by definition, TPOs are approved. Our definition
of third-party organization in this final rule makes it clear that the
organization is approved by the Coast Guard to conduct independent
verifications to assess whether TSMSs or towing vessels comply with
applicable requirements contained in this subchapter. Also, we have
amended Sec. 139.115(b) to make that approval process clearer and
replaced a reference to an organization having to meet subchapter M
requirements with one to expressly include the standard of meeting part
139 requirements for TPOs.
This comment also caused us to notice that our TPO definition needs
to be amended to better reflect the work being done by the TPO. We
added the words ``assess whether'' to the definition of ``TPO.''
``Tow''
One company recommended that we define ``tow'' as a vessel or
vessels being moved by a towing vessel in contrast to our proposed
definition that identifies the towing vessel as being part of the tow
which would also include one or more barges or a vessel not under its
own power.
The Coast Guard concurs with the need to clarify that tow refers to
what the towing vessel is moving--be it another vessel, barge, or some
other object. We have revised our definition to read ``Tow means the
barge(s), vessel(s), or object(s) being pulled, pushed or hauled
alongside a towing vessel.'' This is consistent with our use of the
term as a noun in our rule (e.g., in Sec. 140.625, ``the movement of a
towing vessel and its tow''). Reflecting this definition, in Sec.
140.805 we added ``or objects'' to barges and vessels when describing
what may make up a tow.
''Towing Safety Management System (TSMS)''
On reviewing the comments, the Coast Guard decided to add a
definition of TSMS in Sec. 136.110 rather than just rely on the
information contained in part 138 on TSMS compliance.
''Towing Safety Management System (TSMS) Certificate''
We received several comments suggesting two separate definitions of
the TSMS certificates be added: One for the owner or managing operator
and one for each of the towing vessels found to be in compliance with
the TSMS.
The Coast Guard has not defined ``TSMS certificate'' and does not
agree that two separate definitions should be added or that a separate
certificate for the company and the towing vessel needs to be issued.
TSMS certificates are issued to the owners or managing operators and a
list of vessels covered by the TSMS must be maintained, as described in
Sec. 138.305.
``Travel Time''
Four commenters, including maritime companies and a professional
association, suggested deleting the proposed term ``travel time''
because it does not appear anywhere else in the regulation. One
commenter suggested that the proposed term needs to be amended to
clarify the application to daytime operators who commute back and forth
to work, not travel to a large commercial tug/barge unit that operates
like a self-propelled vessel. Conversely, other commenters suggested
that the
[[Page 40020]]
definition should not include travel back and forth. One company
asserted that if the travel time is not included, crewmembers that do
not live in close proximity to work will use the majority of their
hours traveling.
The Coast Guard agrees that our definition of ``travel time''
should be deleted from the final rule because we do not use that term
in subchapter M.
''Unsafe Condition''
One commenter, citing Sec. 137.325(d), asked the Coast Guard to
create a good definition of an ``unsafe condition'' that can be
consistently applied by companies, auditors, and surveyors, as well as
the Coast Guard.
The Coast Guard agrees with the commenter's request and has added a
definition of ``unsafe condition'' to Sec. 136.110, which includes
observation of a major non-conformity on board a vessel.
``Unsafe Practice''
One commenter suggested that in the definition of ``unsafe
practice'' the list of items that may be subject to significant risk of
harm be supplemented by adding ``and the vessel'' after ``property.''
The Coast Guard disagrees. A vessel belongs to an organization or
person and, therefore, is included by the word ``property.'' We made no
changes from the proposed rule based on this comment, but recognizing
it can be bad practice to do something even once, we inserted reference
to a single action, in addition to a habitual or customary action.
``Western Rivers''
We received several comments, mostly from maritime companies,
regarding the proposed definition of ``Western Rivers.'' Several
maritime companies suggested that the definition should be consistent
with the one in 33 CFR 164.70, which is identical except for it adds
waters specified by 33 CFR 89.27 ``and such other, similar waters as
are designated by the COTP.'' Commenters also asked that waterways
mentioned in 33 CFR 89.27 be included. It was suggested that the
consistency in definitions will help avoid new regulations for those
vessels operating on the Gulf Intracoastal Waterway. One commenter
noted that the proposed definition of ``Western Rivers'' is
inconsistent with the definition in the TSAC report and current
regulations. A trade association believed the change in the definition
for ``Western Rivers'' would increase the burden on mariners. A
maritime company noted that the NPRM lacks a definition, or a route
description in Sec. 136.230, that covers vessels operating in the
Inland areas of the waterway system within the Sea Buoy system, which
includes the Gulf Intracoastal Waterway. The commenter suggested that
Western Rivers be defined to include those vessels operating within the
Sea Buoy system.
Based on these comments, the Coast Guard has decided to adopt the
existing 33 CFR 164.70 definition of ``Western Rivers'' which applies
to navigation safety regulations for towing vessels.
This is similar to the definition TSAC used in its September 7,
2006 report (USCG-2006-24412-0004). Their definition ended with ``and
waters connecting or tributary thereto'' instead of referencing waters
designated by the COTP. Waters specified by 33 CFR 89.25 and 89.27, for
inland navigation rule purposes, include all of the connecting and
tributary waters specified in TSAC's definition, and our addition of
the 33 CFR 89.27 reference includes the Gulf Intracoastal Waterway in
the definition. Also, making our definition consistent with the one in
33 CFR 164.70 allows COTPs to designate similar waters.
Multiple factors in 33 CFR 62.27 are considered in the positioning
of safe water marks, which are also called ``sea buoys.'' These factors
may cause them to be placed seaward or shoreward of demarcation lines.
And, while each safe water mark has a plotted position in the Light
List available via 33 CFR 72.05-10, unlike demarcation lines in 46 CFR
part 7, there are no lines associated with safe water marks. Therefore,
we have decided to use the term ``navigational demarcation lines''
currently used in 33 CFR 164.70.
``Workboat''
One commenter suggested we amend our definition of ``workboat'' to
include ``vessels undergoing cleaning or repair,'' besides equipment,
as things that the workboat pushes, pulls, or hauls alongside within a
worksite.
The Coast Guard disagrees with the proposed change. However, we
have amended the definition of ``workboat'' to remove the specific
listing of things being towed. We believe that the revised definition
of workboat and our definition of worksite--which already included a
list of certain activities which we amended to reflect the movement of
equipment but specifically excluded the movement of barges carrying oil
or hazardous material--provide sufficient flexibility to the OCMI to
cover operations not specifically listed.
``Worksite''
One commenter suggested that we amend the definition ``worksite''
so all areas within which workboats are operated over short distances
for dredging, construction, maintenance, or repair work, including
shipyards, owner's yards, and lay-down areas used by marine
construction projects, would not require OCMI designation as worksites.
Other worksites may be specified by the OCMI. Further, a maritime
company suggested adding the terms ``cleaning facilities, fleeting
areas'' to the definition of ``worksite.''
The Coast Guard disagrees with these recommendations. We believe it
is appropriate for the cognizant OCMI to designate worksites based on
the factors and activities listed and their possible impacts on other
waterway users. Therefore, we have decided not to adopt the expanded
definitions being suggested here. We have made no changes from the
proposed rule based on these comments.
Options for Obtaining a Certificate of Inspection
A commenter opposed the option of obtaining certification by annual
Coast Guard inspections and recommended deletions of provisions in
proposed Sec. Sec. 136.130, 136.140, 136.145, 136.150, 136.165, and
136.170.
The Coast Guard recognizes that some in the industry view the
option for Coast Guard traditional inspections as not having a role in
the future of the regulation of towing vessels. We believe that the
development of and adherence to a TSMS that is tailored to a company's
unique operations and that provides for an authoritative reference for
all members of the organization improves safety for the company's
vessels. As the TSAC Economic Analysis Working Group Report (USCG-2006-
24412-0007) stated, the costs to a small company to implement and
maintain an SMS may be more difficult to absorb than it is for a large
company. These regulations do not preclude any towing vessel company
from adopting a safety management system. However, the structure of
subchapter M provides towing vessel companies with flexibility in how
to comply with this subchapter.
With respect to the various sections mentioned by this commenter,
we have made changes in this final rule. Proposed Sec. 136.130 has
been revised and retitled to better depict the purpose of the options
it presents for documenting compliance with the requirements of this
subchapter and to specifically note that a Certificate of Inspection is
obtained following a Coast Guard inspection. We have moved proposed
Sec. Sec. 136.140 and 136.145 into subpart B of part 136--Certificate
of Inspection--as amended Sec. 136.210 and
[[Page 40021]]
new Sec. 136.212. Also, we merged proposed Sec. Sec. 136.150 and
136.165 into a new Sec. 137.200 to delineate the processes under the
Coast Guard inspection option from the TSMS option processes in part
137. The proposed part 137 had laid out the TSMS procedures but was
silent on the Coast Guard option. Further, we redesignated and amended
proposed Sec. 136.170 as new Sec. 136.202.
A commenter requested an appeal process to permit the immediate
review of an inspector's determinations.
The Coast Guard notes that, as we proposed, the appeals process is
described in Sec. 136.180. Further, this final rule contains
amendments to 46 CFR part 1 that institutes a process for appealing the
decisions of TPOs acting on behalf of the Coast Guard.
Requirements for Existing Vessels During Delayed Implementation
In response to comments regarding the cost of requirements in parts
140 through 144, and concern about being able to meet those
requirements soon after the rule is make effective, we delayed
implementation of nearly all requirements in parts 140 through 144
until July 20, 2018. We made the rule effective July 20, 2016 so that
the Coast Guard can begin to apply other subchapter M regulations to
review applications from those seeking to become TPOs and to impose
deadlines for towing vessels to decide which option to choose--TSMS or
Coast Guard annual inspections. We added Sec. 136.172 to ensure that
we do not leave a gap after the rule becomes effective but before most
requirements in parts 140 through 144 are implemented.
Section 136.172 requires existing towing vessels that will be
subject to subchapter M to remain subject to Coast Guard regulations
applicable to the vessel on July 19, 2016 until the earlier of two
dates: July 20, 2018 or the date the vessel obtains a COI.
Subpart B Certificate of Inspection
We received a comment on proposed Sec. 136.200(d) urging that
provisions from Marine Safety Manual Volume II, Section B, Chapter I,
referencing 46 U.S.C. 3314 and completing a foreign voyage, should be
added to the rule.
As reflected in Sec. 136.200(d), towing vessels issued a COI under
subchapter M are fully afforded the foreign-voyage-completion
provisions of 46 U.S.C. 3314, Expiration of Certificate of Inspection.
We made no changes from the proposed rule based on this comment, but on
reviewing Sec. 136.200, we decided to insert a reference to the COI
phase-in period in proposed Sec. 136.170 (now Sec. 136.202) in
paragraph (a). This insertion is intended to incorporate the date by
which the vessel must obtain a COI and thereby limit the statement that
the vessel may not operate without having a valid COI onboard to the
period after that date. Based on this review, we deleted proposed Sec.
136.225, because it was redundant with Sec. 136.200(c).
A commenter observed that companies choosing the Coast Guard
inspection option should not be given a longer period of time to obtain
a COI than companies choosing the TSMS option.
The Coast Guard agrees. We have amended, redesignated, and retitled
the proposed Sec. 136.170, Compliance for the Coast Guard option, as
Sec. 136.202, Certificate of Inspection phase-in period. This section
now specifies when COIs are required for towing vessels subject to
subchapter M regardless of the option selected. Also, we removed Sec.
136.203 because it is no longer needed given our amendment to what is
now Sec. 136.202.
We received several comments on the phase-in process in proposed
Sec. 136.203, Compliance for the TSMS option. Several commenters
suggested that the requirements for a TSMS and inspection requirement
be phased in to allow for the industry to understand the new
requirements and identify any specific waivers that may be needed. One
commenter favored making sure there is about the same amount of work to
be done in each of the 5 years that make up an inspection cycle.
Another commenter recommended a provision to extend the schedules in
the event of a shortage of approved auditors or inspectors. A
professional maritime association suggested that a phase-in approach
will assist in the transition for vessel operators and auditors and
reduce the strain on shipyards as they manage extensive drydocking that
will occur while vessels await their inspections.
The Coast Guard generally agrees with these concerns. As discussed
in response to an earlier comment, the Coast Guard has amended the
requirements in proposed Sec. 136.170 to set the same timetable for
obtaining a COI regardless of which option the vessel owner or managing
operator selects, and we have removed Sec. 136.203, which had a
separate timetable for those selecting the TSMS option. The phased
approach in Sec. 136.202 distributes the work load over a 6-year
period from the effective date of this final rule. The Coast Guard has
crafted this rule to phase in towing vessels over time for numerous
reasons including spreading costs and workload over time. Section
136.202 provides a broad phase-in period for companies that choose
either the Coast Guard or TSMS compliance option. As we stated in the
NPRM, it will be up to six years before some vessels subject to
subchapter M will need to obtain a COI. However, we do not agree that
we need to add a provision to extend the schedules more than we have
done already in this final rule. We believe that there will be
sufficient TPOs available within the new prescribed timeframes to
conduct subchapter M audits and surveys. Similarly, the Coast Guard is
preparing to have enough inspectors available to meet the demand for
Coast Guard inspections within the new prescribed time frames.
A maritime company offered a phase-in timeline that depends on
separate certificates for a company and their vessels. The commenter
suggested that within 2 years of the rule's effective date a third-
party would conduct an external management audit of a company and issue
a Towing Company Safety Management System Certificate. Then during the
following year, a third party would conduct external vessel audits of
25 percent of company's fleet and issue each vessel a Towing Vessel
Safety Management System Certificate. Similar steps would be taken in
subsequent years until in the sixth year, when all vessels would have
to obtain COIs.
As we noted in response to another comment, we disagree with the
suggestion that two certificates should be issued instead of one TSMS
certificate. We therefore decline to adopt a schedule based on the
issuance of separate certificates for a company and the company's
vessels.
In a submission to the docket, the National Transportation Safety
Board requested the prompt publication of the final rule to avoid any
further delay in regulating the safety of this largely unregulated
sector of the commercial maritime industry. The same commenter felt
that the proposed 6-year implementation period should be shortened.
We received a comment from a towing company suggesting that a
shorter compliance period be applied to those operators who have not
previously participated in the Uninspected Towing Vessel Bridging
Program. The same commenter expressed the importance of consistent
application of the final rule to all vessel operators. The commenter
explained that by allowing some operators to bypass the requirements
market rates will be affected, which will have a serious effect on
small operators.
The Coast Guard concurs with the desire to publish this rule
promptly and,
[[Page 40022]]
in general, to apply it consistently to all vessel operators subject to
subchapter M. We have explained why certain requirements are only
applicable to new towing vessels and why excepted vessels do not need
to comply with certain requirements. We disagree with shortening the
implementation period across the board or, specifically, for those
companies that did not participate in the Uninspected Towing Vessel
Bridging Program, because it was a voluntary program. We believe our
implementation period is appropriate for this rule, which establishes
both a safety management system option involving TPOs and new
requirements for more than 5,000 towing vessels.
We received a few comments on proposed Sec. 136.205, which
identifies what the COI will describe. One commenter noted that minimum
manning requirements in the COI, as required under this provision,
should be allowed to be different for different types of towing
vessels. Another commenter asked how ``minimum manning'' is to be
determined. Another commenter requested allowing for multiple minimum
manning standards depending on the route. A commenter suggested that
this rulemaking should clarify the number of required crewmembers and
allow the towing vessel to be operated by a single crewmember in
certain circumstances.
Existing laws and regulations specify minimum levels of manning for
towing vessels. As stated in Sec. 140.205, manning regulations are
contained in part 15 of this chapter and vessels must be manned in
accordance with the case specific requirements included in the COI. As
stated in 46 CFR 15.705, the minimum safe manning levels specified in a
vessel's COI take into consideration routine maintenance requirements
and the ability of the crew to perform all operational evolutions,
including emergencies, as well as those functions which may be assigned
to persons in watches. The OCMI is empowered to establish a level of
manning for a vessel above the minimum levels prescribed by law and
regulation, based on the vessel's nature of operations and other
parameters, including route.
One individual was unclear about whether proposed Sec. 136.140
applied to those who have an approved TSMS, as well as those who choose
the Coast Guard inspection option. One company asked for clarification
of the sequence of events for COI issuance.
As noted above, our proposed Sec. 136.140, Application for a
Certificate of Inspection (COI), is incorporated into amended Sec.
136.210 and applies to all vessels subject to subchapter M. Regardless
of the inspection option chosen, the owner or managing operator must
submit an application for inspection to the cognizant OCMI where the
inspection will take place. As specified in Sec. 136.130(d), the
application should indicate which option the owner or managing operator
is selecting.
We amended Sec. 136.210 to make it clear how and when to apply for
the initial COI. In our proposed Sec. 136.140, we specified deadlines
for renewing a COI, but not those for obtaining the initial COI. Our
amended Sec. 136.210 identifies the application and scheduling
deadlines for the initial COI and reflects the same application and
scheduling lead times for renewing a COI: Submit the application at
least 30 days before the vessel will undergo the initial inspection for
certification, and schedule an inspection for the initial certification
with the cognizant OCMI at least 3 months before the vessel is to
undergo the inspection for certification. Amended Sec. 136.212 sets
forth the process of receiving a Coast Guard inspection at least once
every 5 years and for receiving a new COI after being inspected by the
Coast Guard.
We received one comment recommending that the last line of proposed
Sec. 136.145(b), now redesignated as Sec. 136.212(b), which describes
the nature of inspections, should specify that inspection of the
vessel's pollution prevention systems and procedures should be in
accordance with any Memorandum of Understanding (MOU) between the Coast
Guard and the Environmental Protection Agency.
The Coast Guard disagrees with this recommendation because we do
not view the proposed amendment as either necessary or desirable. We
believe that the current language that the ``inspector will also
examine the vessel's pollution prevention systems and procedures'' is
appropriate. An inspection involves an examination of a vessel to
determine whether it is in compliance with applicable regulations or
other legal authorities. There are existing pollution prevention
regulations that would pertain to inspected towing vessels that are not
covered by any Coast Guard MOU with the EPA. We have not made any
changes in this final rule based on this comment.
An individual and a company requested clarification of the
inspection frequency in proposed Sec. 136.145. Two companies suggested
that frequency and level of inspection should be accomplished on a risk
basis.
In this final rule, Sec. 136.145 was renamed Sec. 136.212 and
states that towing vessels subject to subchapter M will be inspected at
least once every 5 years. Towing vessels choosing the TSMS option would
be subject to annual surveys between those inspections, while towing
vessels choosing the Coast Guard Inspection option would be inspected
annually. See Sec. Sec. 137.200, 137.205, and 137.210.
A company expressed concern about whether the Coast Guard would
have resources to hire a sufficient number of competent vessel
inspectors for convenient scheduling for the company, including drydock
scheduling.
The Coast Guard is prepared for the estimated demand for annual
inspection from owners and managing operators selecting the Coast Guard
annual-inspection option. The Coast Guard will closely monitor the
demand for inspections and make resource adjustments as necessary.
However, based on our reassessment of Coast Guard resources, we have
removed the option in proposed Sec. 136.105(b) for vessels not covered
by subchapter M to request application of this part.
Another company requested that the Coast Guard do everything
possible to ensure that Coast Guard inspections and third-party audits
or load line surveys are coordinated to prevent an undue burden on
industry.
The Coast Guard agrees there are benefits to coordinating audits,
surveys, and inspections, and will attempt to do so. However, there may
be times when coordination is not possible due to scheduling and
operational constraints.
An association asked that the Streamlined Inspection Program be
added as an alternative inspection process.
The Streamlined Inspection Program, available under 46 CFR part 8,
is an available option to obtain a renewal of a COI. If using that
option, the owner or managing operator must comply with the procedures
identified in part 8. We do not need to add text to subchapter M for
this part 8 option to be available to vessels subject to subchapter M.
An individual suggested we eliminate the term ``uninspected towing
vessel,'' because towing vessels might not be inspected currently for
structural construction, but are regulated and are subject to Coast
Guard rules for daily operation.
The Coast Guard agrees that all towing vessels are regulated by the
Coast Guard to some extent but are not necessarily inspected. We have
chosen to continue to identify those towing vessels not subject to
subchapter M, and that are subject to subchapter C, as uninspected
towing vessels.
[[Page 40023]]
We received several comments on proposed Sec. 136.210(b)(3)(i),
which would require that an application for initial certification
include objective evidence that the towing vessel's structure and
stability comply with applicable requirements. Commenters recommended
that for existing towing vessels without a stability letter, an audit
report noting that the towing vessel is being maintained and operated
in a manner that does not compromise its watertight integrity or
stability should be sufficient to satisfy this requirement. Others
contended that stability is not an issue on inland waterways, and that
there should be no stability requirements for Western Rivers towing
vessels.
The Coast Guard has amended Sec. 136.210 to more clearly identify
what the owner or managing operator needs to provide the Coast Guard
for both the Coast Guard and TSMS options with the application for
inspection. Note that for the TSMS option the application must now
include objective evidence of having a TSMS compliant with part 138 and
that the vessel meets the requirements of this subchapter.
Structural requirements for existing vessels are addressed in Sec.
144.200. To satisfy that regulation, if a vessel is not built,
equipped, and maintained to conform to the rules of a recognized
classification society appropriate for the intended service and routes,
the applicant must provide evidence that the vessel has been both in
satisfactory service insofar as structural adequacy is concerned and
that the vessel does not cause its structure to be questioned by either
the OCMI or TPO. Stability requirements for existing vessels are
addressed in Sec. 144.300 and under this provision, for those vessels
without a stability document, documentation of operating history--for
example through audit reports--is one option to meet Sec. 144.300
requirements.
The Coast Guard believes that stability is a concern on any vessel,
regardless of service or operating area. Towing vessels must be
maintained and operated so the stability of the vessel is not
compromised.
Proposed Sec. 136.210(b)(5) (redesignated as Sec.
136.210(a)(2)(ii)) would require a description of any modification to
the vessel. Some commenters suggested that the provision should be
limited to major or substantial modifications to the design and
construction of the towing vessel.
The Coast Guard disagrees with these suggestions. The Coast Guard
needs to be aware of changes and modifications made to inspected
vessels. We will use this information to determine if a single change
or incremental changes made to a vessel over time will affect a
vessel's suitability for its route or service. However, replacements in
kind, as defined in this subchapter, are not considered modifications.
We have made no changes from the proposed rule based on these comments,
but we did clarify that a description of any modification is only
necessary when renewing the COI.
With respect to proposed Sec. 136.215, which describes the period
of validity of a COI, we received two comments urging the Coast Guard
to add language to the rule so that noncompliance with a TSMS would not
immediately result in the invalidation of the COI.
The Coast Guard acknowledges that Sec. 136.215 states that if the
TSMS certificate expires or is revoked, then the towing vessel's COI
becomes invalid. Non-conformities or major non-conformities found
during surveys or audits do not automatically invalidate the TSMS or
the COI. However, deficiencies or non-conformities that are egregious
could result in the OCMI removing the COI from the vessel. Ultimately,
the status of the COI is determined by the OCMI. Based on the extent of
the deficiencies or non-conformities found during an inspection,
survey, or audit, the OCMI has various opportunities to work with the
company to bring the vessel into compliance without suspending or
revoking the TSMS certificate as specified in Sec. 138.305.
Commenters noted that proposed Sec. 136.220 would require the
original COI to be framed under glass and posted onboard the towing
vessel. We received many comments noting that this requirement is
outdated in this electronic age. These commenters suggested that the
provision should simply state that a current copy of the COI must be on
the towing vessel and available for inspection. Some of them added that
the original COIs should be kept in a central location.
In paragraph (b) of Sec. 136.220 we provide the alternative of
keeping the COI readily available onboard in a weathertight container.
Our Sec. 136.220 implements 46 U.S.C. 3312, which requires that the
COI be displayed on the vessel but allows for alternatives as we have
provided in Sec. 136.220(b). We do consider an open boat as an example
of when it is impracticable to post a COI, but we removed this example
from the text of Sec. 136.220(b) to place more focus on the statutory
language. We require the original COI to be on board, rather than a
copy, because there is only one original and removal of the COI from
the vessel is one means the OCMI uses to prevent the vessel from
getting underway if it is unsafe for it to do so.
We received one comment on proposed Sec. 136.230(a) noting that
the route endorsements on COIs issued to towing vessels should be
consistent with the route designations on the COIs of the tank barges
being moved.
The Coast Guard notes that routes on barges and towing vessels are
not interdependent. The towing vessel and its tow is limited to the
most restrictive route of the towing vessel or any vessel in the tow.
The Coast Guard encourages the company to match route-appropriate
barges and towing vessels. However, we made no changes from the
proposed rule based on this comment.
In reviewing Sec. 136.235, which covers Certificate of Inspection
amendments, we saw the need to distinguish procedures for a vessel
seeking a COI amendment based on which option the vessel selected. We
amended Sec. 136.235 accordingly. We also added a provision stating
that the OCMI may need to conduct an inspection before issuing an
amended COI.
We received a comment on proposed Sec. 136.235, suggesting that
the term ``towing vessel'' should replace ``vessel'' in paragraphs (b)
and (c)(2) of that section. This commenter also noted the same edit and
other editorial changes for various sections throughout the proposed
rule language.
The Coast Guard disagrees that there is a need to change every use
of the word ``vessel'' to ``towing vessel'' when we mean towing vessel.
As with Sec. 136.235, where we initially use the term ``towing
vessel,'' and it is clear from the context that our use of the word
``vessel'' refers to towing vessel, we do not see a need to repeat
``towing vessel.'' We have been careful to always use ``towing vessel''
when referring to a towing vessel in sections where we also use the
term ``vessel'' to mean something other than the towing vessel--e.g.,
in our definition of ``bollard pull'' in Sec. 136.110.
Proposed Sec. 136.240 addresses permission to proceed to another
port for repairs. We received two comments expressing support for the
provision. Another commenter suggested that the vessel should be able
to proceed for repairs even if there is noncompliance with the COI.
The Coast Guard notes that under Sec. 136.240, an owner or
managing operator must notify the cognizant OCMI in whose zone the non-
compliance occurs or is discovered before the vessel proceeds and also
must notify any other OCMI zones through which the vessel will transit,
and that the cognizant OCMI may require
[[Page 40024]]
inspection of the vessel by a Coast Guard Marine Inspector or
examination by a surveyor from a TPO prior to the vessel proceeding. We
clarified Sec. 136.240(a), which we intended to apply only to vessels
with a TSMS, as the TSMS may address the necessary conditions under
which the vessel may safely proceed to another port for repair.
Accordingly, we amended paragraph (a), made corresponding amendments to
paragraph (b), and inserted headings for all three paragraphs in Sec.
136.240.
We received one comment that recommended changing ``another port''
to ``next port of call,'' in Sec. 136.240 and confining the conditions
requiring a Permit to Proceed to situations that affect safety or
seaworthiness. Other commenters noted that the master, not the owner or
managing operator, should be the person deciding if the trip for
repairs can be completed safely.
The Coast Guard disagrees with these recommendations. The term
``next port of call'' may be too restrictive and may undermine the
authority of the OCMI or the vessel's master in determining where the
vessel may safely proceed to be repaired. Regarding the last comment,
we do list ``owner, managing operator, or master'' when specifying who
must make a judgment that the trip can be completed safely. We believe
Sec. 140.210(b) addresses the commenter's concerns by specifying that
if the master believes it is unsafe for the vessel to proceed, he or
she must not proceed until it is safe to do so. We have made no changes
from the proposed rule based on these comments.
One commenter stated that in Sec. 136.240 it appears that a
company must notify the OCMI any time a vessel must be moved to
accomplish a repair not specifically addressed in the TSMS. The
commenter stated that to completely comply it seems that all
possibilities must be addressed in the TSMS or the OCMI will be
inundated with requests for a problem not involving seaworthiness. We
do not believe the commenter's characterization is accurate.
Companies using the TSMS have the opportunity to tailor their
system to address conditions the company anticipates may occur that
would cause the vessel not to be in compliance and the necessary
conditions under which the vessel may safely proceed to another port
for repair. Under Sec. 136.240(b), if the condition is not addressed
in the TSMS, the owner, managing operator, or master can request
permission to proceed from the cognizant OCMI in whose zone the non-
compliance occurs or is discovered. A Permit to Proceed would only be
needed when a repair is needed and the vessel is no longer in
compliance with its COI. Minor repairs that do not affect the safety of
the vessel (including seaworthiness) or its machinery would most likely
not be considered issues that would invalidate the COI, and therefore
would not necessitate a Permit to Proceed. We have made no changes from
the proposed rule based on this comment.
Proposed Sec. 136.245 addresses permits to engage in an excursion.
We received a comment pointing out that a permit to carry an excursion
party is required when the towing vessel carries more persons than
allowed by the COI, but under proposed Sec. 136.205, a COI indicates
that minimum number of persons, not the maximum.
The Coast Guard notes that Sec. 136.205 does not reflect all the
information contained on the COI. The COI is a document issued under 46
U.S.C. 3309 that is in a form prescribed by the Commandant. Currently,
it lists the minimum number of crew, those in addition to crew, and the
total persons allowed on board. We have amended our description of the
COI in Sec. 136.205 to include ``total persons allowed onboard.''
Separately, and upon reviewing proposed Sec. 136.205 and a similar
description in 46 CFR 2.01-5, we amended Sec. 136.205 to improve its
description of a COI's listing of safety equipment and appliances
required to be onboard. Also, in further reviewing Sec. 136.245 we saw
the need to amend it to include the case where a vessel chooses the
Coast Guard option or the TSMS does not address excursion parties.
Several commenters expressed the opinion that having guests such as
vessel owners, service technicians, auditors, trainers, or crew changes
for other vessels should not require a special permit. Other commenters
opposed the proposed requirement to give 48 hours' notice to the OCMI
because the need for an excursion party, such as customers or vendors
on a towing vessel to see a particular operation, will often arise
spontaneously. One commenter was unclear where to obtain a permit. We
received a comment requesting the addition of a provision to require
the COI to identify the number of crewmembers and persons in addition
to crewmembers allowed onboard, taking into account overnight
accommodations, lifesaving equipment, etc.
The Coast Guard has added definitions for ``excursion party'' and
``persons in addition to the crew'' in Sec. 136.110. Vendors/customers
carried onboard would not constitute an ``excursion party''; these
individuals would be carried as ``persons in addition to crew'' as
permitted by the COI. We also amended Sec. 136.210 so that it prompts
owners and managing operators applying for an initial COI to include
documentation on the number of persons in addition to the crew they
would like the OCMI to include in the COI.
We received one comment on the proposed requirement in Sec.
136.250 for load lines for vessels operating outside the boundary line.
The commenter questioned how the requirement applied to the Great
Lakes, in which there are no boundary lines.
The Coast Guard notes that boundary lines are identified in 46 CFR
part 7 and that load line requirements for the Great Lakes are provided
in 46 CFR part 45. We edited Sec. 136.250 to make it clearer that it
applies to all towing vessels on the Great Lakes, and also reorganized
Sec. 136.250 into a table for greater clarity.
G. Vessel Compliance (Part 137)
We received numerous comments on part 137, and we made several
changes to the overall structure and content of this part. In subpart A
we removed the definitions section, as we have removed similar
definition sections in other parts, because it simply noted that
subchapter M definitions in Sec. 136.110 apply to the part. We also
deleted proposed Sec. 137.115 because the substance of this provision
is contained in Sec. 136.210.
We received two comments on proposed Sec. 137.120, which describes
responsibilities for compliance. One commenter supported the provision
that the owner and managing operator are responsible for ensuring
compliance and suggested that when deficiencies and non-conformities
are identified during vessel inspections and TSMS audits and fines
imposed against a company, those action letters should be addressed to
the person described in Sec. 137.120, thereby ensuring the person at
the top is fully aware of the vessel's conditional status.
The Coast Guard concurs that Sec. 137.120 holds the owner and
managing operator responsible for compliance with subchapter M and
other applicable laws and regulations. It also specifies that non-
conformities and deficiencies must be corrected in a timely manner; we
have deleted the stated purpose for this corrective action requirement
because it was unnecessary regulatory text. We will consider the
commenter's suggestion for where to send notification of non-compliance
but see no need to change the regulations.
[[Page 40025]]
Under Sec. 137.130(c), we leave discretion with the owner and
operator to specify in the TSMS procedures for reporting and correcting
non-conformities and deficiencies. We have reorganized Sec. 137.130 to
make it easier to read and understand the requirements of the two
programs for compliance under the TSMS option.
Another commenter requested that standard forms be provided to
assist small companies with compliance, and that the Coast Guard should
provide guidelines to OCMIs for simple inspections of towing vessels
operated by companies too small to have staff dedicated to regulatory
compliance, and that the Coast Guard should provide standard forms
similar to U.S. Army Corps of Engineers usage reports which can be
submitted to the local sector OCMI.
Regarding the second commenter, the Coast Guard does not plan to
prepare a specific form, but we have prepared a Small Entities Guide
(available in the docket) for this final rule and we do plan to provide
guidance to OCMIs on implementing this rule. We will develop where
necessary and appropriate inspection and compliance checklists, job
aids, and guides for our OCMIs and make them available to the public.
We made no changes from the proposed rule based on these comments.
We removed Sec. 137.125 because it simply states that if a TSMS is
applicable to the vessel it must have provisions for compliance with
part 137. Section 137.125 is unnecessary because part 138 addresses
what the TSMS must cover regarding all subchapter M requirements.
The new structure of this part, specifically in subparts B and C,
presents together the discussion of inspections and surveys conducted
under the both Coast Guard and TSMS options. As mentioned in the
previous section of the preamble, we moved the discussion of
inspections under the Coast Guard option from proposed Sec. Sec.
136.150 and 136.165 into subpart B of this part. We also added a Coast
Guard option section in subpart C of this part. In subpart C, we
rearranged the order to place the discussion of drydock intervals first
and then describe the Coast Guard and TSMS options. In response to
comments we changed the term ``periodic survey'' to ``external survey
program'' and the term ``audit program'' to ``internal survey program''
throughout the rule, including in the headings for Sec. Sec. 137.205
and 137.210. We also defined these terms in Sec. 136.110 and added a
reference to them in Sec. 137.130.
An individual disagreed with the Coast Guard's proposed 5-year
inspection for vessels under TSMS. The commenter suggested that like
vessels under SOLAS, an annual verification examination should be
conducted.
In the NPRM, we did state that at the vessel level, towing vessels
operating under the TSMS option would receive audits and surveys by a
TPO, in addition to the Coast Guard conducting compliance examinations
at least once every 5 years, along with additional random compliance
checks based on risk (76 FR 49978, Aug. 11, 2011). While some vessels
operating under a TSMS may be inspected by the Coast Guard once a year,
we do not feel that annual Coast Guard inspections are necessary given
the audit and survey requirements for vessels with a TSMS, along with
our oversight of that system.
We received three comments objecting to the term ``seaworthiness''
proposed in Sec. 136.150(a)(4), which we have reorganized into Sec.
137.200. They noted that the appropriate term, especially for Western
River towing vessels that don't go to sea, is ``fit for the service for
which it was intended'' or ``suitable for its intended route.'' A
commenter noted that proposed Sec. 136.150(a)(2) (now Sec.
137.200(b)) would require a more detailed inspection if an inspector
finds deficiencies or determines a major change has occurred, and
recommended we set up boundaries on the open-ended term
``deficiencies,'' such as ``deficiencies of sufficient number or
severity,'' and that we delete the ``major change'' provision.
The Coast Guard partially agrees with these recommendations. We
consider ``seaworthiness'' to be an appropriate term for considering
the condition of the vessel and note that the term is used in the
Riverman's Lexicon (Lehman), a noted publication specific to the
Western Rivers. However, we have added a reference to fitness for route
and/or service to further clarify the intent in the paragraphs where we
use the term ``seaworthiness'': Sec. Sec. 137.200(d), 137.300(b), and
137.335(a)(1).
We define the term ``deficiency'' in Sec. 136.110 to mean ``a
failure to meet minimum requirements of the vessel inspection laws or
regulations,'' and we do consider it appropriate to call for a more
detailed inspection if deficiencies or a major change to the vessel are
found. A major change would include a major conversion but would also
capture other changes such as changes that may affect the operational
safety of the vessel or fitness for route or service.
A commenter asked us what constitutes a ``visit'' as opposed to an
``inspection'' or an ``audit.''
The Coast Guard may engage in visits to TPOs, as discussed in Sec.
139.160, to ensure compliance with this rule. The Coast Guard notes
that in the preamble of the NPRM we stated that, as part of our
oversight of those organizations, we would conduct random oversight
visits to the offices of TPOs that conduct TSMS audits and surveys. The
Coast Guard also clarifies the procedures for such visits. The Coast
Guard will provide notice to the employer 48 hours in advance of any
site visit, unless the visit is in response to a complaint or other
evidence of regulatory non-compliance (see Sec. 139.160). In response
to an earlier comment above, we have discussed the distinction between
inspections and audits. We have made no changes from the proposed rule
based on this comment.
One commenter expressed the opinion that annual and periodic Coast
Guard inspections under proposed Sec. 136.150 would overly tax the
system and not effectively utilize Coast Guard inspection talent.
On page 32 of our Preliminary Regulatory Analysis and Initial
Regulatory Flexibility Analysis (USCG-2006-24412-0002) we assumed that
1,340 towing vessels from small companies with fleets of five or fewer
vessels would select the Coast Guard annual-inspection option. Based on
the many comments submitted about the benefits of a TSMS, we still
anticipate that many owners and operators of towing vessels,
particularly those from companies with large fleets, will select the
TSMS option. The Coast Guard will closely monitor the demand for
inspections and will make resource adjustments as necessary.
With respect to the periodic survey provision in proposed Sec.
137.205, we received one comment favoring an audit by a third party
every 3 years rather than every year.
The Coast Guard disagrees with this recommendation. We believe that
3-year intervals would allow unsafe conditions and other problems to go
undetected for too long. The annual compliance activities are
consistent with other classes of inspected vessels including those that
implement other safety management systems. To clarify when the annual
survey under Sec. 137.205 must be conducted, we amended Sec. 136.110
by adding a definition of ``anniversary date'' tied to the expiration
date of the COI or TSMS certificate and we amended Sec. 137.205(a)(3)
by referring to the COI's anniversary date. We also amended other
sections that referenced
[[Page 40026]]
anniversary issuance date to read ``anniversary date.''
We received one comment asking whether participation in an ISM
program and issuance of a vessel's Safety Management certificate would
meet the requirements in proposed Sec. 137.210, which is now titled
Internal survey program. Section 138.225 clearly states that ISM Code
compliance meets the safety management requirements in this subchapter.
To clarify our reference in Sec. 138.225 to such vessels being deemed
in compliance with ``these'' requirements, we amended Sec. 138.225(a)
in this final rule to replace ``these requirements'' with ``TSMS-
related requirements in this subchapter.'' This clarifying edit is
consistent with our statement in the NPRM preamble that the Coast Guard
is proposing to accept compliance with the ISM Code, an internationally
mandated safety management system for vessels subject to the SOLAS, as
satisfying TSMS-related requirements. We implemented the ISM Code
through regulations in 33 CFR part 96 and view the processes and
procedures in place for compliance with the ISM Code as sufficient to
ensure that towing vessels comply with TSMS-related requirements in
subchapter M.
This commenter also stated that proposed paragraph (e) of Sec.
137.210 appeared to indicate the audit can be conducted by the
operating company since the OCMI may require the attendance of an
approved third party. He asks if our intent is to allow the operator to
conduct these audits in lieu of periodic (annual) audits by a third
party.
Yes, it was our intent, which is reflected in this final rule, to
allow operators to conduct some surveys and audits. We believe the
commenter meant to reference paragraph (e) of Sec. 137.215. Section
137.215 deals with conducting surveys and its paragraph (e) states that
the OCMI may require the attendance of an approved third party ``to
assist with verifying compliance with this part.'' We deleted Sec.
137.210(c) to remove the requirement that a towing vessel must
successfully complete an initial audit by a TPO before it may be placed
into an internal survey program. Section 137.210 contains the
provisions that allow for owners and managing operators to conduct
annual surveys under the internal survey program. For the purposes of
auditing under the TSMS option, there is also an internal audit program
described in part 138 that allows the owner or managing operator to
conduct annual internal management audits. We note that we have amended
Sec. 137.210 by adding paragraph (a)(8) requiring that the TSMS
contain procedures for assigning personnel to conduct surveys.
We received several additional comments on the provisions in
proposed Sec. 137.210. A few commenters suggested that ``audit
program'' should be changed to ``program of continuous assessment'' and
that the requirement in proposed paragraph (b) for timing of the
surveys should provide that surveys may be conducted within 3 months of
the anniversary date of the previous survey.
Section 137.210(b) specifies that the interval between successive
surveys of any item must not exceed 1 year. The words ``unless
otherwise prescribed'' at the end of that paragraph modify the
reference to not being required to survey items as one event. The
internal survey program allows the owner or managing operator to assess
the required items through a series of surveys, resulting in maximum
flexibility in conducting vessel operations while fulfilling regulatory
requirements. We want to preserve the flexibility afforded to the owner
or managing operator that was intended by the continuous survey aspect
of the internal survey program, and view the 1-year-from-successive-
survey requirement as the best means of assuring that required surveys
under this flexible system are conducted. Therefore, we did not adopt
the commenter's suggestion to amend Sec. 137.210 to require that
surveys be conducted within 3 months of the anniversary date of the
previous survey.
One commenter recommended that proposed Sec. 137.210(a)(3) on
identification of items that need repairs should allow for the issuance
of Form CG-835 deficiency tickets.
The Coast Guard agrees that the list of items for inspection and
repair should include any existing deficiencies listed by the Coast
Guard on Form CG-835, Notice of Merchant Marine Inspection
Requirements. We have amended Sec. 137.210(a)(3) accordingly, and also
added these related items: noted survey deficiencies, non-conformities,
and other corrective action reports.
Noting actions listed in proposed Sec. 137.210(d) (now Sec.
137.212), which explains the OCMI's authority to require audits,
surveys, and removal from the TSMS option, one commenter called for the
Coast Guard to establish and use an industry advisory committee for
each OCMI to advise him or her based on impartial industry knowledge.
Another commenter recommended peer review to verify the quality of work
performed by auditors.
The Coast Guard disagrees with the suggestion that we establish and
use an advisory committee for each OCMI. The Coast Guard has
established requirements for auditors to ensure the competency of
auditors in TPOs at 46 CFR 139.125 and 139.130. The Coast Guard retains
oversight and administrative control of TPOs and through them, their
auditors. See 46 CFR 139.135, 139.145, 139.150, and 139.160. We do not
see the need for an additional level of review of their work. We
developed these rules in coordination and consultation with TSAC, a
Federal Advisory Committee whose members are appointed by the Secretary
of Homeland Security to advise, consult with, and make recommendations
to the Secretary on matters relating to shallow-draft inland and
coastal waterway navigation and towing safety. Further, OCMIs work with
Harbor Operations Committees and conduct regular meetings with port
stakeholders and other industry representatives at the Sector level to
discuss maritime issues, including those related to towing vessels. We
made no changes from the proposed rule based on this comment, but we
did clarify the reference to a ``change in ownership'' in proposed
Sec. 139.125(c)(4) (now Sec. 139.125(d)(4)) that would cause an
approval for a TPO to expire by inserting the words ``as defined in
Sec. 136.110'' after the term.
One commenter expressed concern about a lack of qualification
requirements for the individual doing the surveys under the Sec.
137.210 internal survey program, beyond those written into the TSMS. He
recommended that the rule require the individual conducting surveys
under Sec. 137.210 to have comparable qualifications to the third-
party surveyor.
The Coast Guard has amended Sec. 137.210 by adding paragraph
(a)(8) requiring that the TSMS contain procedures for assigning
personnel to conduct surveys. As suggested by the commenter, under
Sec. 138.220(c)(1) survey requirements must be specified in the TSMS.
We have amended Sec. 138.220(c)(1) to make it clear that the TSMS must
list the minimum qualifications of a surveyor if the surveyor is not
from a TPO. We also removed Sec. 138.220(c)(3) and (e) because their
proposed requirements are covered in elsewhere in Sec. 138.220.
We received two comments on proposed Sec. 137.215, which describes
the general conduct of a survey. One commenter noted that proposed
paragraph (b)(3) would require observation of drills and training, but
periodic surveys are typically performed while the towing vessel is in
drydock or on a railway, and crews are generally not on board.
[[Page 40027]]
The Coast Guard disagrees with the commenter's premise that
periodic surveys under this subchapter will take place in a dry dock.
At least portions of surveys under Sec. 137.215 will require that the
vessel is dockside or underway to complete adequate operational
assessment of equipment contained in the scope of Sec. 137.220.
However, the Coast Guard agrees with the commenter that a surveyor
would not traditionally be expected to observe the performance of a
drill by the crew. We have amended Sec. 137.215 to reflect that the
surveyor would focus on the vessel's structural, electrical, and
mechanical systems, and equipment, including those used in drills--for
example, davits, cranes, pumps, and lifesaving equipment. These
functions could be performed while in drydock or without the crew
present. It is the auditor who will focus on the operational
performance of the crew to assess the competency in the performance of
the assigned roles. For such an audit, the crew must be present and the
vessel must be ready to demonstrate the performance upon request. The
Coast Guard has amended Sec. Sec. 138.405(d) and 138.410(c), conduct
of internal and external audits, assigning auditors the responsibility
to witness drills.
Another commenter requested a change to proposed paragraph Sec.
137.215(c) which he felt created an unnecessary loophole. He
recommended deleting it or revising it to read: ``While all the items
listed in Sec. 137.200 must be surveyed for all vessels regardless of
their condition, vessels and equipment found to be in poor condition
may be required to undergo more stringent examinations in order to
satisfy the attending surveyor.''
The Coast Guard agrees that Sec. 137.215(c) should be amended to
address this concern. We added language to Sec. 137.215(c) to ensure
that survey standards in Sec. 137.215 are met and to require an
expanded examination by the surveyor when he or she finds multiple
deficiencies indicative of systematic failures. Regarding the items to
be surveyed, Sec. 137.215(b) clearly states that the survey must
address all items in Sec. 137.220.
We received several comments on the scope of surveys in proposed
Sec. 137.220. Some of the commenters focused on three requested
changes: Clarification that gas-freeing prior to entry into confined
spaces, such as fuel tanks, is not required; allowing verification of
drills to be done using a review of documentation; and limiting the
inspection of watertight doors to those that were required to be
installed.
As discussed in Sec. 137.330(b), fuel tanks need not be cleaned
out and internally examined if the general condition of the tanks is
determined to be satisfactory by external examinations. While the Coast
Guard does not agree that crew competency can be verified by just
reviewing records of required training and drills, we have removed the
requirement for witnessing drills from the survey portion of the rule
and have moved it to the audit requirements in Sec. Sec. 138.405 and
138.410. Any watertight fittings that crews rely on for watertight
integrity and vessel safety should be operational and subject to
survey.
One commenter noted that Sec. 137.220 should be amended to clarify
that a topside exam can be conducted in segments and need not be done
as a discrete event.
Section 137.220 describes the scope of the survey which would apply
under either the Sec. 137.205 or Sec. 137.210 program. For those
choosing the Sec. 137.210 internal survey program to demonstrate
vessel compliance, the Coast Guard makes it clear in Sec. 137.210(b)
that the owner or managing operator is not required to survey the items
as described in Sec. 137.220 as one event, but may survey items on a
schedule over time, provided that the interval between successive
surveys of any item does not exceed 1 year, unless otherwise
prescribed. The Coast Guard believes that Sec. 137.210(b) provides
clear guidance that an owner or managing operator of a towing vessel
may select to have surveys done during multiple events. In contrast,
the Sec. 137.205 external survey program calls for one event, an
annual survey, and not successive surveys to survey the items described
in Sec. 137.220. The Coast Guard has not made any changes from the
proposed rule in response to this comment.
Another commenter recommended that we eliminate the term ``rescue
boat'' from the rule, which we used in proposed Sec. 137.220(g)(6)
when identifying the scope of items to be examined and also in crew
safety regulations in part 140 of the NPRM. He notes this change would
avoid confusion between the terms ``skiff,'' ``survival craft,'' and
``rescue boat.''
The Coast Guard agrees that the use of the term ``rescue boat'' in
this rule could cause confusion. We did not propose that subchapter M
require towing vessels to carry rescue boats, so to avoid confusion, we
have removed the references to rescue boats in Sec. Sec. 137.220 and
140.405. We did, however, leave instruction and drill requirements in
Sec. 140.420(d)(4) for launching and using a rescue boat if a towing
vessel has one installed, and have defined rescue boat as described
earlier in this preamble.
One commenter objected to a Sec. 137.220(g) requirement for towing
vessels to conduct a man-overboard drill, simulated under emergency
conditions. The commenter noted that towing vessels on the Great Lakes
should not have to comply with standards not applied to ``self-
propelled lakers'', that is, other self-propelled vessels, on the Great
Lakes.
The Coast Guard disagrees and did not make a change from the
proposed rule based on this comment. We seek to promote safe vessel
operations for all towing vessels and we have casualty data that
indicates that falls overboard is one of the main contributing factors
to crew member fatalities in this industry. As detailed in Sec.
136.105, the Coast Guard has provided a number of exceptions for towing
vessels based on the known risks involved in their specific operation.
The Coast Guard has declined to provide blanket exemptions for entire
operating areas such as lakes, bays and sounds, rivers, or as the
commenter suggests, the Great Lakes. The Coast Guard has evaluated the
hazards of towing vessel operations in each of these particular areas
and determined that the application of these regulations to certain
towing vessel operations in each of these areas would improve safety to
life, property and the environment.
In addition, noting the language currently in 33 CFR 164.01(b) and
the ``33 CFR part 164, if applicable'' language in proposed Sec.
137.220(j)(5), a commenter raised concerns about determining when and
whether a given towing vessel is subject to 33 CFR part 164 navigation
safety regulations.
We did not propose to amend 33 CFR part 164, and neither Sec.
164.01 nor other sections in that part use ``inspected'' or
``uninspected'' as criteria for applicability, so this rule does not
alter the applicability of 33 CFR part 164 for towing vessels. To see
what requirements in 33 CFR part 164 may apply to a given towing
vessel, one needs to review all of Sec. 164.01, not just paragraph (b)
which is focused on towing vessels. For example, Sec. 164.01(d) points
to automatic identification system requirements without reference to
type of vessel. We made no changes from the proposed rule based on this
comment.
We received two comments on proposed Sec. 137.300, a section on
documenting compliance with drydock and internal structural surveys
requirements. One of these commenters referenced Sec. 136.130(d) in
combination
[[Page 40028]]
with Sec. 137.300 when requesting clarification about the scope and
frequency of such surveys. Both Sec. 136.130(d) and redesignated Sec.
137.300(a) make it clear that the frequency does not change based on
which option is chosen to obtain a COI. Further, we amended Sec.
137.300(a) to clearly indicate that the drydock and internal structural
intervals start after the issuance of the initial COI. Paragraphs
(a)(1) and (2) of Sec. 137.300 clearly state the intervals for drydock
and internal structural surveys. Finally, we established separate
sections for vessels using the TSMS option (Sec. 137.305) and those
using the Coast Guard inspection option (Sec. 137.302) to document
compliance with drydock and internal structural survey requirements.
Regarding the scope of drydock and internal structural surveys,
whether a vessel provides objective evidence using the external survey
option under Sec. 137.310 or the internal survey option under Sec.
137.315 requirements (see these options referenced in redesignated
Sec. 137.305(a) and (b)), the scope of the survey is clearly laid out
in Sec. 137.330. Also, Sec. 137.325 contains a comprehensive
inventory of items to be reviewed during the examination. The Coast
Guard believes that the numerous items identified in Sec. 137.325, in
addition to the supporting Sec. 137.330, provide sufficient
information to address the commenter's concerns. As noted above,
redesignated Sec. 137.300 makes clear that regardless of the option
chosen to obtain a Certificate of Inspection, each towing vessel must
undergo a drydock and internal structural examination at the prescribed
intervals after the issuance of the initial COI. Accordingly, we have
amended the Sec. 137.325 heading so that it no longer references just
surveys for the TSMS option. Throughout amended subpart C of part 137
we have changed the term ``survey'' to ``examination'' when referring
to the drydock and internal structural examinations.
A person commenting on proposed Sec. 137.300(c), which called for
objective evidence of compliance with certain load line requirements in
subchapter E, noted that load lines are not applicable to inland towing
vessels. We agree that load lines are not applicable for situations
where the inland towing vessel never operates on the Great Lakes or
outside the Boundary Lines. But under Sec. 136.250, the load line
requirement in subchapter E would apply to certain towing vessels 79
feet or more in length that normally operate on inland waters but that
sometimes operate on the Great Lakes or outside the Boundary Lines. In
this final rule, we moved requirements for documenting compliance with
load line and other requirements in this subpart to Sec. 137.305 for
vessels choosing the TSMS option and to Sec. 137.302 for vessels
choosing the Coast Guard inspection option. We recognize that 46 CFR
42.03-5(b)(1)(v) in subchapter E excepts vessels that operate
exclusively on inland waters and that do not engage in coastwise or
Great Lakes voyages from load line requirements. However, Sec.
137.305(c) and amended Sec. 137.320 make clear that the load line
provision is only relevant for towing vessels subject to subchapter E
load line requirements. Similarly, the provisions in new Sec. 137.322
for vessels currently classed by a recognized classification society
whose applicable rules have been accepted by the Coast Guard, are only
relevant to vessels so classed.
Redesignated Sec. 137.305 clarifies that objective evidence is
needed to demonstrate that a vessel utilizing the TSMS option complies
with the drydock and internal structural examination requirements of
this subpart. Paragraph (c) points to Sec. Sec. 137.320 and 137.322.
We amended Sec. 137.320 to make clear that an examination performed to
maintain a valid load line certificate issued in accordance with
subchapter E would count as an examination required under Sec.
137.300. Also, new Sec. 137.322 allows for the same consideration in
the case of a drydock and internal structural examination performed to
maintain class by a recognized classification society whose applicable
rules the Coast Guard has accepted. In the case of those vessels
required to conduct two drydock and internal structural examinations in
accordance with Sec. 137.300(a)(1), the allowance under either Sec.
137.320 or Sec. 137.322 only counts for one of the required
examinations.
We received several diverse comments on proposed Sec. 137.305,
which specifies intervals for drydock and internal structural surveys.
One commenter observed that towing vessels operate in an environment
that requires them to be in contact with barges and vessels, and that
this contact puts unusual stresses to the hull. Based on this
observation the commenter suggested that the survey intervals called
for in proposed Sec. 137.305(a)(2), redesignated Sec. 137.300(a)(2),
for vessels not exposed to salt water often should be the same as those
with more saltwater exposure--at least twice every 5 years and not more
than 36 months between drydockings--instead of just once every 5 years.
The Coast Guard disagrees. The drydock and internal structural
examination requirements in this final rule are consistent with the
requirements for other vessels subject to inspection, and we see no
reason to believe this frequency of drydocking would need to be
increased for towing vessels. The Coast Guard will monitor the
inspected fleet to see if increased frequency is called for in the
future. As discussed earlier, proposed Sec. 137.305 has been
redesignated as Sec. 137.300 in this final rule.
Some commenters thought the provision of proposed Sec. 137.305
should be amended to ensure vessels operating on the Great Lakes may
receive a 1-year extension on the required interval for drydocking and
interval structural examinations as provided under load line provisions
in 46 CFR subpart 42.09 and current Coast Guard policy.
The Coast Guard disagrees that modification to our applicable text,
now found in Sec. 137.300, is needed. The extension of a Great Lakes
Load Line certificate by the Ninth District Commander is addressed in
46 CFR 42.07-45(d)(2). Existing Coast Guard policy, found in the Marine
Safety Manual, Volume II, provides additional guidance to the Coast
Guard and industry regarding extensions of drydock and internal
structural examinations for Great Lakes vessels. The Ninth District
Commander is also the approving authority for drydock extensions for
these vessels, including towing vessels operating on the Great Lakes.
While the same entity can issue both of these extensions, the load line
certificate and the vessel's Certificate of Inspection must both be
annotated with the new due date for the vessel's drydock and internal
structural examination. We made no changes from the proposed rule based
on this comment.
Some commenters noted that a definition for ``saltwater'' is needed
if the times of operation in ``saltwater'' is a factor in determining
intervals for inspections.
The Coast Guard did not add a definition for the term ``saltwater''
in the rule. The Marine Safety Manual, Volume II, places the
responsibility of determining salt water and fresh water dry-docking
and internal structural inspection intervals on the OCMI. If fresh
water intervals are determined appropriate for a specific vessel, the
OCMI will annotate the fresh water service intervals on the vessel's
COI and evaluate that determination periodically. OCMIs maintain lists
of boundary lines where fresh water ends, and salt water begins, within
their particular zones.
[[Page 40029]]
A commenter expressed concern about the cost of the requirements.
He wrote that proposed Sec. 137.305 would impose enormous cost on
small businesses, and that his company's vessels that operate in the
Southeast in a saltwater environment would have to be drydocked twice
every 5 years at an estimated cost of about $40,000 for each drydocking
evolution for one vessel, or $80,000 per vessel every 5 years. Another
commenter suggested that Sec. 137.305, requiring drydocking of
saltwater vessels twice every 5 years, would cost his company at least
$100,000 to $150,000 per vessel.
The drydock and internal structural examination requirements in
this final rule are consistent with the requirements for other vessels
subject to inspection and necessary to meet the statutory requirements
for vessel inspections. We have made no changes from the proposed rule
based on this comment.
With regard to the cost of drydocking, after publication of the
NPRM, the Coast Guard sponsored a study of standard marine engineering
services for use in regulatory analyses, titled ``Study of Marine
Engineering and Naval Architecture Costs for Use in Regulatory
Analyses'' by ABS Consulting, available on the docket. According to the
Engineering Cost Study, cost of drydocking can vary based on a variety
of factors, including vessel size, vessel weight, equipment, type of
work, operating environment and location of the drydock.\2\ The
Engineering Cost Study summarizes the minimum, average and maximum
costs of drydocking for various vessel types in Table 6-9, page 32. The
Engineering Cost Study does not report a separate cost category for
towing vessels. The Coast Guard uses the costs for smaller Freight
Ships and Industry Vessels as a proxy for towing vessels based on
similar size and operating characteristics. Based on the Engineering
Cost Study, the minimum cost for a drydocking of a towing or similar
vessel is $2,000, the maximum is $20,000 and the average is $9,250. We
consider the $9,250 as the best available estimate for the average cost
of drydocking. We acknowledge that the $40,000 estimate provided by the
commenter is feasible given the variability of factors, such as size
and location. To account for the variability, we assume that the
$40,000 cost is at the 90th percentile of the distribution of costs,
that is, 10 percent of vessels will incur this cost for drydocking. As
a result, we modify the average cost to reflect the upper 10th
percentile cost of $40,000, for a weighted average cost of $13,250. As
per the regulatory requirements, vessels that are not currently covered
by a safety management system are assumed to incur this cost once every
5 years for freshwater vessels and twice every 5 years for saltwater
vessels.\3\ For a more detailed discussion of the costs, see section
3.3 of the Regulatory Analysis which is available in the docket.
---------------------------------------------------------------------------
\2\ Source: ABS Consulting for the U.S. Coast Guard, Study of
Marine Engineering and Naval Architecture Costs for Use in
Regulatory Analyses, March 29, 2013, Contract GS-23F-0207L2714803,
page 30.
\3\ Vessels currently covered by an SMS already are required to
undergo drydocking at similar intervals.
---------------------------------------------------------------------------
We received a few comments on proposed Sec. 137.315. Some
commenters were unclear whether the requirement of notification prior
to commencing work at the drydock refers to any drydock work or only
those drydock visits that are required by the TSMS.
In response, we amended Sec. 137.315(d) to clarify when to notify
the Coast Guard under paragraph (d) and TPOs under paragraph (b) of
activities related to credit drydocking or internal structural
examinations.
A few commenters asked that Sec. 137.315 be modified to clarify
that the items described in Sec. 137.330 need not be examined as one
event, but may be examined on a schedule over time.
Section 137.315(c) states that ``The interval between examinations
of each item may not exceed the applicable interval described in Sec.
137.300.'' The Coast Guard believes the words ``examinations of each
item'' provides clear guidance that an owner or managing operator of a
towing vessel may select to survey different items described in Sec.
137.330 during multiple events, and the remainder of Sec. 137.315(c)
makes clear that the interval for surveys of a given item must not
exceed the applicable interval described in Sec. 137.300.
Several commenters argued that proposed paragraph (a) of Sec.
137.325, requiring a surveyor to determine that the hull and related
structure and components are free of defects or deterioration, would be
too difficult to meet. One commenter suggested language we used in
proposed Sec. 137.335(c)(3) regarding underwater inspections--``free
from appreciable defects and deterioration''--stating that it does not
make sense to require a higher standard for a vessel on drydock than
one being inspected in the water.
The Coast Guard agrees with the commenters with respect to the term
``free of defects [and] deterioration.'' We have amended Sec.
137.325(a), to remove the term ``free of'' and have further rearranged
the paragraph so that the standard for evaluating the listed items
detected in the hull and related structure and components is whether
they ``adversely affect the vessel's seaworthiness or fitness or
suitability for its route or service'' instead of ``reducing
effectiveness.'' Also, in Sec. 137.325(a), we changed ``determine
that'' to ``determine whether'' to better reflect the purpose of the
survey: To determine if standards are met. In response to the second
comment, the Coast Guard amended Sec. 137.335 by removing the word
``appreciable'' to provide a more consistent standard with that of
Sec. 137.325(a), and by reorganizing the section to better clarify its
intent.
Two commenters expressed general opposition to the proposed
requirements and scope for regular mandatory drydock examinations. One
commenter stated that harbor service boats are already being retired on
a regular basis when their structural usefulness is at an end, and
therefore mandatory structural inspections are not warranted. The
commenter also noted the cost of additional boats to fill the service
void when these boats are in transit to a certified inspection drydock
and when undergoing a drydock inspection. Another commenter was
specifically concerned that proposed Sec. 137.330 was vague regarding
pulling the tail shafts for inspection.
Because of the nature of towing, the hulls of towing vessels are
exposed to the unique hazards that result in degradation and damage to
the towing vessel in the normal course of operation. For this reason,
regular drydocking of a towing vessel to inspect its underwater areas
is a necessary component of assessing and verifying fitness for
service. We note, however, that as proposed in the NPRM, Sec. 137.335
in this final rule identifies situations where it may be acceptable to
conduct an underwater survey in lieu of a drydocking.
The Coast Guard notes that scope of drydock examination required by
Sec. 137.330 is the same for both seagoing and inland service. The
Coast Guard believes Sec. 137.330 clearly lays out the scope of the
required drydock examination for all towing vessels subject to
subchapter M. Our proposed definition of ``drydock'' in Sec. 136.110
actually defines a drydock examination (as opposed to the physical
dock) and matches the definitions of that term in subchapters K and T,
so we amended the term being defined to ``drydock examination.''
Regarding examination of tail shafts, the Coast Guard proposed
[[Page 40030]]
Sec. 137.330(a)(2) to permit the surveyor or inspector to conduct the
required examinations using different means than pulling the tail
shaft, so long as the method used allows the surveyor or inspector to
properly evaluate the tail shaft for bends, cracks, and damage. These
methods may include technologies such as non-destructive testing and x-
ray. The Coast Guard has not made any changes from the proposed rule
based on these drydocking and tail shaft comments.
Regarding the cost of additional boats to fill the service void
when these boats are in transit to a certified inspection drydock and
when undergoing a drydock inspection, the Coast Guard has added an
estimate of lost revenues (rather than the cost of replacement) to
account for the potential impacts of vessels being out of service due
to drydock inspections. Further information is available in Section 2.5
of the Regulatory Analysis.
We received a few comments on Sec. 137.335, which sets out
provisions for an underwater survey in lieu of drydocking. One
commenter expressed support for the provision. One commenter suggested
that for purposes of determining whether an underwater survey is
appropriate, the age of the hull should be used rather than the age of
the towing vessel.
The Coast Guard does not agree that we should use the age of a
given vessel's hull as opposed to the vessel's age when considering
eligibility for enrollment in an underwater inspection in lieu of
drydocking (UWILD) program. For an existing vessel with no prior credit
drydock overseen by the Coast Guard, we have no criteria to make an
``age of hull'' determination. Once inspected, a completely new hull
will likely be considered as a major modification and reset the
vessel's age for purposes of UWILD enrollment.
While we did not make a change from the proposed Sec. 137.335
based on these comments, we did amend Sec. 137.335 to clarify the
process for the UWILD program by stating that it is the Coast Guard
that determines if the stated criteria for eligibility has been met.
One commenter opposed several vessel compliance provisions in part
137. He argued that requirements for training and recordkeeping will be
an excessive burden on small companies, a distraction to pilots, and
cause undue hardship for vessel owners; that vessel managing operators
should not have to get permission to put visitors, company
representatives, or additional personnel on the vessel; and that
restrictions in routes permitted on the COI would be a deterrent to his
ability to make a living and provide employment for his personnel.
Other commenters noted that the paperwork requirements would distract
pilots while they are steering their towing vessels.
The Coast Guard views the TSMS, and its requirements for records to
document compliance with regard to training, as the foundational
document itemizing the standards, processes and management systems
necessary to improve maritime safety aboard towing vessels. Towing
companies that lack the resources to develop and implement a TSMS may
choose the Coast Guard inspection option and will not have to maintain
the TSMS-required records and documents. We note, however, that
personnel record requirements in Sec. 140.400(a) and (b) apply to all
vessels subject to subchapter M; in response to this comment we have
made clarifying amendments to those paragraphs. With respect to
associated paperwork, many of the entries are short in duration and the
Coast Guard does not mandate when the paperwork is filled out.
Regarding crews and visitors, the Coast Guard will issue
certificates of inspection that establish the level of manning and
persons in addition to the crew that will be allowed to be on board the
vessels. Companies should work with OCMIs prior to issuance of the COI
to request any additional personnel above what the required manning
level would normally be. The Coast Guard does not agree with the
commenter's assertion that the OCMI does not need to be contacted to
carry additional personnel (visitors, company reps, etc.) beyond what
is stated on the COI. We note that Sec. 136.245 provides for the
issuance of an excursion permit by the OCMI as needed.
The application for inspection allows owners and managing operators
to request the routes necessary to accomplish their business. OCMIs
will evaluate that request to determine if the vessel meets the
standard for the routes being requested. Those standards are found in
parts 140 through 144. We made no changes from the proposed rule based
on these comments.
One maritime company expressed concerns regarding added operating
costs incurred that will stem from drydock inspection fees paid to
surveyors or the Coast Guard, and from audit exams and what the
maritime company considers unnecessary repairs brought upon the
industry by non-risk-based regulations.
The requirement to have a surveyor from a TPO conduct a drydock and
internal examination is predicated on the option chosen to obtain a
COI. The Coast Guard encourages the owner or managing operator of a
vessel using the TSMS option to discuss such costs with the company's
TPO, as appropriate.
One commenter predicted the cost of surveys would likely increase
for both small and large companies, citing the demand for Coast Guard-
approved surveyors from TPOs and the increased scope of surveys. He
noted many common repairs that can now be performed without requiring
independent surveys will require independent surveys under this rule.
The Coast Guard does not accept the premise that this rule imposes
a requirement that independent surveyors must be involved before common
repairs are performed. Regarding repairs, under Sec. 137.305, the OCMI
may require additional examination of a vessel whenever he or she
discovers or suspects damage or deterioration to hull plating or
structural members that may affect the seaworthiness of a vessel. We
believe the OCMI should be able to require additional examinations when
he or she discovers such conditions, and we note that such examinations
are typically reserved for those dry-docking and topside surveys
required by part 137. We note also that under Sec. Sec. 137.135(a)(12)
or 137.210(a)(3) there is a requirement to identify items that need to
be repaired or replaced before the vessel continues in service, but
this would not require a TPO survey before common repairs could be
made.
Regarding the need for surveyors from TPOs, under the Coast Guard
option, annual inspections are performed by Coast Guard personnel and
do not require participation of a surveyor from a TPO. Similarly, if a
company has a TSMS and chooses an internal survey program, the surveys
can be conducted by a qualified member of the company and would not
require a TPO. If a company with a TSMS uses the external survey
program, they would incur additional costs of using a surveyor from a
TPO.
H. Towing Safety Management System (TSMS) (Part 138)
We received many comments on our proposed part 138 TSMS
requirements. We received several comments with regard to the schedule
for the TSMS option. An individual suggested that the implementation of
a TSMS should occur immediately with the allowance of a 6-month interim
certificate. This commenter stated using an interim basis approach, as
is done with the ISM Code, will prevent reinventing the wheel and align
the system approach to existing requirements.
We have made a number of changes, as explained in this section to
provide
[[Page 40031]]
for a smooth implementation of the TSMS option while keeping in mind
the burden to owners and managing operators. In the NPRM, we proposed
that owners and managing operators who select the TSMS option would
have 2 years from the effective date of a final rule to create their
TSMS, have a TPO approve it and then issue a TSMS certificate. The
owners and managing operators would then have 4 years from the date of
that TSMS certificate to bring all vessels under their ownership or
management into the TSMS and obtain COIs for them.
In this final rule, we changed Sec. 138.115 so that owners or
managing operators of towing vessels need only to obtain a TSMS
certificate issued under Sec. 138.305 at least six months before being
able to have any of their vessels obtain a Certificate of Inspection
under the TSMS option. We made this change to better account for the
time needed for third parties to obtain approval from the Coast Guard
and for owners and managing operators to obtain approval of their TSMS
from these third parties before being required to have their vessels
obtain a COI. We also believe that six months of implementing a TSMS is
sufficient for obtaining a COI, and as required, the vessel would need
to have on board a copy of the owner or managing operator's TSMS
certificate. We amended Sec. 138.115 to more closely align the
deadline with the deadlines for vessels to obtain a COI, but this
change does not prevent a company from implementing a TSMS sooner and
we encourage owners and managing operators to obtain the TSMS
certificate and implement their TSMS as soon as possible. In making
this change, we do not believe there is a need for a 6-month temporary
certificate.
Two commenters expressed their view that utilizing internal and
follow-up audits would mean that there would be no need for a TSMS.
The Coast Guard does not agree that merely conducting audits and
surveys would negate the need for TSMS. The TSMS is the foundational
document itemizing the standards, processes, and management systems
that the auditor would review, assess, and validate. Without a TSMS, or
some other form of Safety Management System, there would be no
documentation to identify the processes and management system(s) put in
place for a vessel choosing the TSMS option. We made no changes from
the proposed rule based on these comments.
We received comments from maritime companies and a professional
association suggesting that proposed Sec. Sec. 138.205, 138.210,
138.215, and 138.220 pertaining to the purpose, functional
requirements, and elements of the TSMS be revised to be more simplistic
and to more clearly state the primary goals of a TSMS.
We believe the purpose, objectives, functional requirements, and
elements presented in these four sections in part 138, subpart B,
succinctly establish reasons for, and the requirements and goals of, a
safety management system. The Coast Guard incorporates these core
elements to provide consistency with the ISM Code and to identify the
elements that must be addressed when developing a TSMS. In response to
a previous comment, we did revise our definition of ``safety management
system,'' which identifies the nature of an SMS and who it enables to
effectively implement the safety and environmental protection
requirements of subchapter M. Additional guidance will be developed to
help the industry and public understand the goals of a TSMS and how to
develop and implement one.
Some commenters requested clarification regarding the proposed
functional requirements in Sec. 138.215(f) and TSMS elements in Sec.
138.220(e) related to the phrase ``procedures to manage contracted
(vendor safety) services.'' The commenters suggested that the
management of all hired (contracted) towing vessels to ensure they
comply with subchapter M would be a burden, and they suggested that
proof of the hired company's TSMS and vessel's COI should be sufficient
evidence to meet the intent of the rule. One of the commenters stated
that it is unclear what contracted services are covered by Sec.
138.220(e).
The Coast Guard agrees. When contracting their vessels to others
for towing services, the owner and operator remain responsible for for
verifying that their vessels are in compliance with the regulations. We
have removed the requirements proposed in Sec. Sec. 138.215(f) and
138.220(e).
We received several comments from maritime companies that conveyed
concern regarding the proposed requirement in Sec. 138.220(b)(1) for
employers to, ``ensure personnel are . . . mentally capable to perform
required tasks.'' The commenter's stated that although employers
conduct drug testing, safety training, and physical examinations, the
employers cannot be responsible for determining their mental health
status.
The Coast Guard agrees that it may be unreasonable for the company
to determine the mental health of a crewmember. It is reasonable,
however, for companies to identify if potential crew members are able
to perform required tasks. For this reason, we have edited the quoted
language in Sec. 138.220(b)(1) to require the TSMS to contain
employment procedures which ensure ``that personnel are able to perform
required tasks.''
We received a comment requesting more details regarding crew member
(master, mate, able seaman, pilot, etc.) responsibilities in the
operation, managing, and implementation of the TSMS and the vessel.
The Coast Guard does not agree that the regulations should contain
more details on crew responsibilities and believes that this should be
left to the discretion of the owner or managing operator to set in the
TSMS. Under Sec. 138.220(b), policies must be in place in the TSMS
that cover the owner or managing operator's approach to managing its
personnel, including the duties and responsibilities of the
crewmembers.
We received comments from individuals and a maritime company
recommending that the rule ensures that major non-conformities, non-
conformities, accidents, and hazardous situations are reported to the
owners, company, or managing operators; are investigated and analyzed
with the objective of improving safety and pollution prevention; and
that auditors notify the Coast Guard and the company immediately of any
serious, unsafe situation that threatens the vessel, its personnel, or
the environment. One commenter noted that TSMS requires a designated
person to whom crewmembers can report safety violations, but that
towing vessels opting for the Coast Guard inspection option would not
have this reporting system that would likely prevent accidents. Another
commenter recommended supplementing the text in Sec. 138.220(a)(1)(ii)
to ensure that the designated person monitors the safety and pollution
prevention aspects of the operation of each vessel and ensures that
adequate resources and shore-based support are applied.
With respect to reporting accidents and non-conformities, we note
that Sec. 138.215(c) requires TSMSs to include procedures for
reporting both. Section 138.220(a)(2)(ii) requires that the TSMS
include procedures to identify and correct non-conformities. The TSMS
must include how an initial report should be made and the actions taken
to follow up and ensure appropriate resolution.
For vessels choosing the Coast Guard option the corresponding
``designated person'' is the vessel's Master. In part 140 on
operations, Sec. 140.210(d)(6)
[[Page 40032]]
requires the crew to report unsafe conditions to the Master and take
the most effective action to prevent accidents.
The Coast Guard disagrees with adding specific regulatory text to
Sec. 138.220(a)(1)(ii) regarding the designated person. Section
138.220(c) requires the TSMS to have an element that addresses
verification of vessel compliance that covers the safety and pollution
prevention aspects that the commenter alluded to. Ultimately the
designated person is responsible for ensuring the TSMS is implemented
and continuously functions to address concerns identified by the
commenter.
On the issue of protecting the responsibilities and authority of
masters, we received comments suggesting that the TSMS specifically
states that the master has overriding authority to make decisions
regarding the company's safety and pollution prevention.
The Coast Guard agrees that the master of a towing vessel has
overriding responsibility and authority to ensure the safety of his or
her vessel. As stated in Sec. 138.220(a)(1)(iii), the Master's
authority, as defined by the owner or managing operator in the TSMS,
must provide for his or her ability to make final determinations on
safe operations of the towing vessel including the ability to cease
operations if an unsafe condition exists. This reflects provisions in
operational regulation Sec. 140.210 which specify that safety of the
towing vessel is the responsibility of the master and that if the
master believes it is unsafe for the vessel to proceed, he or she must
not proceed until it is safe to do so.
We received many comments from maritime companies that recommend
that the Coast Guard accept the AWO RCP as an approved TSMS. Commenters
wrote about the wide use of the RCP and attested to the success that
their company has experienced implementing that program. Several
commenters also suggested that because AWO RCP has been developed from
the ISM code, which we already noted as being accepted in the NPRM, the
AWO RCP should qualify as an approved TSMS.
The provisions of Sec. 138.225 state that an SMS that is fully
compliant with the ISM Code requirements of 33 CFR part 96 will be
deemed in compliance with TSMS requirements in part 138. It also states
that the Coast Guard may consider other existing safety management
systems as meeting part 138 requirements. The Coast Guard will examine
AWO's RCP to determine whether or not it meets the requirements of 46
CFR part 138 in order to determine if it qualifies under the provisions
of this section. We have not made a change from the proposed rule based
on these comments.
We received comments from several maritime companies that
recommended the sequence of events for the issuance of a COI for towing
vessels be provided.
The Coast Guard notes the following short sequence of events
associated with the various ways to obtain a COI:
Step 1: As specified in Sec. 136.210, Obtaining or renewing a
Certificate of Inspection (COI), the owner or operator must submit a
completed CG-3752, Application for Inspection of U.S. Vessel, to the
cognizant OCMI. As noted in Sec. 136.130(d), the applicant must
specify the option--TSMS or Coast Guard Inspections--when submitting
the Application for Inspection for a vessel.
Step 2: Under Sec. 136.212, the Coast Guard will inspect the
vessel at least once every 5 years for certification.
Step 3: As specified in Sec. 136.212(c) of this final rule, the
OCMI will issue a vessel a new Certificate of Inspection after the
vessel successfully completes the inspection for certification.
With respect to this process, and as noted previously, we amended
Sec. 138.115 so that owners or managing operators of towing vessels
selecting the TSMS option need to obtain a TSMS certificate at least
six months before being able to have any of their vessels certificated.
We believe this is more consistent with the required schedule of when
vessels must obtain a COI as shown in Sec. 136.202 when considering
the time needed for third parties to obtain Coast Guard approval and
for owners and managing operators to obtain approval of their TSMS from
the third parties.
Five maritime companies suggested that additional language be
provided in Sec. 138.305 to clarify how a third-party is to respond
when a non-conformity is discovered and what the appeals process will
be for a company whose certificate is rescinded.
The Coast Guard agrees and has added language to Sec. 138.505(a)
to specify that the results of any external audit of the owner or
managing operator's compliance with Sec. 138.315 of this part must be
submitted to the Towing Vessel National Center of Expertise within 30
days of audit completion by the TPO conducting the external audit.
Further, we amended our definition of ``non-conformity'' in Sec.
136.110 to clarify that it is referring the non-fulfillment of a safety
management system specified requirement. On reviewing proposed Sec.
138.215(j) procedures for evaluating recommendations, which has been
redesignated as Sec. 138.215(i), to be more consistent with other
quality control and safety management systems, we amended its reference
to the source of the recommendations to include more company personnel,
and made a similar edit in Sec. 138.220(a)(2)(ii) regarding reporting
non-conformities.
Regarding the appeal process, in proposed Sec. 136.180 we stated
that any person directly affected by a decision or action taken under
this subchapter by or on behalf of the Coast Guard, may appeal in
accordance with subpart 1.03 in subchapter A of this chapter. In
response to comments, the Coast Guard has added Sec. 1.03-55 to
identify the Coast Guard official or entity appeals should be directed
to, including the appeal of matters relating to action of a third
party, such as when a TPO rescinds a TSMS certificate.
A professional association noted that, as written, proposed Sec.
138.305 would require that all towing vessels in a fleet that are in
compliance with the TSMS be included on the company's TSMS certificate.
The commenter stated that this provision would render an entire fleet
invalid if a TSMS is revoked under proposed Sec. 138.305(d), and
therefore, a paragraph needs to be added to this section detailing the
appeals process for the rescinding of a TSMS, which mirrors the current
Coast Guard appeals process for rescinded COI's. One commenter
suggested that the proposed requirement in paragraph (c) to list
vessels on a TSMS certificate is cumbersome and unnecessary.
The Coast Guard understands the commenter's concern and has amended
Sec. 138.305, so that owners or managing operators need only maintain,
and produce on request, a list of vessels currently covered by each
TSMS certificate. This is a less burdensome means of requiring this
information.
Exceptional circumstances such as failure to complete a required
audit, major non-conformities discovered during an audit or survey, and
failure to fully implement their TSMS could render the TSMS certificate
invalid for a company's entire fleet. Based on the Coast Guard's
experience with other safety management systems, including ISM, these
circumstances have been rarely observed. It is more likely that an
infraction of the regulations would result in a less drastic response--
for example, in the form of non-conformities being reported for the one
or few vessels involved, or those vessels being removed from the list
of vessels found to be in compliance with the TSMS.
[[Page 40033]]
If the situation warrants, the TPO that issued the TSMS certificate
is able to rescind the certificate, which could impact the entire
fleet, or remove one or more vessels from the list of vessels on the
TSMS for non-compliance with the requirements of part 138. Such an
action that would render the certificate no longer valid would indeed
impact the entire fleet of vessels listed in that TSMS certificate.
Also, we note that the Coast Guard may suspend or revoke the TSMS
certificate at any time for non-compliance with the requirements of
part 138. As discussed above, we have added 46 CFR 1.03-55 to clearly
identify the Coast Guard official or entity appeals should be directed
to for those seeking to appeal a decision by a TPO under Sec.
138.305(e) to rescind, or a Coast Guard official under Sec. 138.305(d)
to suspend or revoke, a TSMS certificate.
In commenting on Sec. 138.305(f) requirements, an individual
suggested it is unnecessary for a copy of the TSMS certificate to
remain onboard the vessel because the certificate will be on file at
the Captain of the Port (COTP) and at the company's office.
The Coast Guard does not agree. Some towing vessels will frequent a
number of COTP zones. The TSMS certificate provides evidence that a
vessel covered by the TSMS was found to meet 46 CFR part 138
requirements, and a copy on board the vessel will be readily available
to Coast Guard officials wherever the vessel is operating.
A transportation company suggested that two certificates should be
issued instead of one: A Towing Company Safety Management System
Certificate to the office and a Towing Vessel Safety Management System
Certificate to each towing vessel. One commenter recommended and
provided text for a new section that would provide information on how
to obtain such certificates.
The Coast Guard does not agree. A TSMS is intended to be the
central document that directly links the towing vessel and the shore-
based management operation. The TSMS is not only for the vessel or only
for management. Rather, it is the documentation of processes,
responsibilities and required action defining the mutually supporting
actions between the vessel mariners and management. A TSMS certificate
should be the only document issued attesting to the acceptability of
the system. This should reduce the paperwork burden on industry and
TPOs.
We received comments suggesting the removal of the proposed
requirement for an internal auditor to be a person outside of the
organization. Commenters felt that this requirement could make it
difficult for small companies to comply. Others suggested that a person
who is involved in the development of the TSMS would be useful in
identifying areas where the system is not meeting standards. Several
comments from maritime companies felt that the requirements for
internal auditors should mirror ISM Code 12.4, which states that
``Personnel carrying out audits should be independent of the areas
being audited, unless this is impracticable due to the size and the
nature of the Company.''
The Coast Guard believes that some of these comments are based on a
misreading of Sec. 138.310. The section does not require an internal
auditor to be a person outside of the organization. However, to come
closer to the desired objectivity of a third-party organization, the
internal auditor may not be a person involved in the implementation of
the TSMS. In response to these comments on Sec. 138.310, the Coast
Guard has amended Sec. 138.310(d)(4) to include qualifying language
from ISM code 12.4: The auditor must be independent of the procedures
being audited, unless this is impracticable due to the size and the
nature of the organization. Thus, very small organizations may
potentially use someone from within their organization to perform the
audit.
Some commenters also recommended that the proposed requirement, in
Sec. 138.310(d)(2), for internal auditors to have completed ISO 9001-
2000 courses be deleted.
The Coast Guard does not agree. We believe that a robust auditing
system that includes both internal and external auditing processes
serves to enhance the effectiveness of a safety management system and
provides a venue for identification of deficiencies and a process for
corrective action. Requiring internal auditors to have completed an ISO
9001-2000 internal auditor/assessor training course, or a Coast Guard-
recognized equivalent course, is intended to ensure that the internal
auditor is familiar with basic auditing standards and procedures.
However, we want to accept those who have been trained under newer ISO
9001-2008, so we amended Sec. Sec. 138.310(d) and 139.130(b)(3) to
include that standard. In this final rule, both the ISO 9001-2000-based
training we referenced in the NPRM and the ISO 9001-2008-based training
meet our qualification requirement. The intended result of this
training is to ensure that the internal audit meets minimum standards.
One commenter requested more information regarding the accepted
course work for internal auditors. An individual offered suggestions
for the minimum education for internal auditors.
The Coast Guard disagrees. The Coast Guard has incorporated ISO
9001 standards for internal auditor competencies in Sec. 138.310 to
reflect the best practices found in industry. The Coast Guard does not
agree that standards either less than or in excess of these minimum
competencies enhance the credibility of the internal auditing process.
We made no changes from the proposed rule based on these comments.
We received comments that requested clarification of our
requirements for external audits in Sec. 138.315. One commenter
opposed the provision in Sec. 138.315(b)(2) that vessels must be
selected randomly for an external audit during the 5-year period of
validity of the TSMS certificate, which the commenter viewed as
subjecting a vessel to multiple external audits. He suggested that
satisfying Sec. 136.203 requirements for vessels with TSMS
certificates should be sufficient. Another was confused by Sec.
138.315(b)(2)'s requirement for an external audit prior to the issuance
of the TSMS certificate because he felt it was the initial audit that
leads to the TSMS certificate. One commenter questioned why we called
for random audits.
In response to these comments we have changed Sec. 138.315(b) to
clarify the requirements for external vessel audits. We removed the
requirement in proposed paragraph (b)(1) regarding the need for an
external audit on all vessels prior to an owner or managing operator
receiving the initial TSMS certificate. Upon reconsidering this
provision we determined it is not necessary and instead we considered
the need for vessel to undergo an external audit in relation to the
initial COI for the vessel. And in doing so we considered the two
different categories of vessels for which an owner or managing operator
would need to obtain an initial COI. First, there are the vessels that
have been owned or operated for more than six months which generally
will include all existing vessels that are now coming under this
subchapter. Secondly, there are newly constructed vessels as well as
existing vessels that an owner or managing operator may obtain, all of
which will need a COI to operate but which have been owned or operated
for less than 6 months. For the first category, Sec. 138.315(b)(1)
requires the vessel to undergo an external audit prior to obtaining the
initial COI. For the second category, Sec. 138.315(b)(2) requires that
the vessel undergo an external audit no
[[Page 40034]]
later than 6 months after receiving the initial COI. We note, that as
required by Sec. 138.505(b), the results of all external vessel audits
are required to be provided to the cognizant OCMI. We believe that 6
months of operation is sufficient for owners or managing operators to
fully implement their TSMS on their towing vessels and is also
consistent with other SMS provisions including the duration of interim
ISM vessel certificates.
Proposed Sec. 138.315(b)(2) has remained the same but is now Sec.
138.315(b)(3). The other change we made was to add Sec. 138.315(b)(4)
to clarify that not all information for an external audit necessarily
needs to come from the vessel examination as some may be obtained from
the owner or managing operator's office but that however, some of the
information must be obtained by visiting the vessel.
As noted, we made these changes to clarify when vessels need to
undergo an external audit as well as the relationship between the
external audit and a vessel's initial COI.
As for the comment regarding confusion caused by Sec.
138.315(b)(2), (now Sec. 138.315(b)(3)), we note that, as proposed,
paragraph (b)(1)'s requirement for an external audit of the vessel
before issuance of the initial TSMS certificate is separate from
paragraph (b)(2)'s requirement that an external audit of each vessel
must be conducted during the 5-year period of validity of the TSMS
certificate. We didn't view these requirements as confusing or
conflicting but as noted above, we have removed the requirement
proposed in Sec. 138.315(b)(1). Nor do we consider Sec. 138.315's
sequencing of external management audits and vessel audits as
confusing. As noted above, we removed proposed Sec. 138.315(b)(1) and
replaced it with provisions in (b)(1) and (b)(2) to specify when an
external vessel audit is required relative to a vessel receiving the
initial COI. Note that Sec. 138.315(a)(2) and new Sec. 138.315(b)(3)
continue to specify the external management and vessel audits required
during the validity period of the TSMS certificate. It is important
that all vessels undergo one external audit every five years along with
external management audits to verify that an owner or managing
operator's TSMS have been fully implemented and the TSMS certificate
can be renewed. In proposed Sec. 137.210(c), we did state that before
it could be placed in an audited program, a towing vessel must
successfully complete an initial audit by a third-party organization,
and then be audited as required by part 138. In this final rule we
removed any reference to an initial audit in part 137.
One commenter recommended replacing the random selection with a
requirement for at least one intermediate verification between the
second and third anniversary dates of the TSMS certificate. Another
commenter stated that Sec. 138.315's sequencing of external management
audits and vessel audits seems confusing.
The commenter's concern about proposed Sec. 138.315(b)(2)'s, now
Sec. 138.315(b)(3)'s, random-selection provision is unwarranted
because that paragraph specifically calls for only one (``an'')
external audit of vessels during the 5-year period. In addition, as
noted previously, we added Sec. 138.315(b)(4) to allow for the use of
objective evidence to verify compliance with some portions of the
audit; however, some portions require visiting each vessel during the
5-year period. We call for the vessels to be selected randomly to
provide a risk-based approach and maximum flexibility for ensuring
continual compliance with this subchapter. Therefore, we decline to
amend Sec. 138.315 to remove the random-selection provision.
We received comments from several companies noting that the
proposed requirement in Sec. 138.315(c), that audit documents to be
maintained for 5 years and submitted to Coast Guard upon request,
appears to conflict with the proposed Sec. 138.505 requirement that
the owner or managing operator submit each audit to the Coast Guard.
The Coast Guard agrees that these two sections contain different
record requirements, but we do not view them as conflicting
requirements. Paragraph (c) of Sec. 138.315 calls for the maintenance
of external audit results so that they are available when requested by
the Coast Guard inspectors or an external auditor. Coast Guard
inspectors may not have access to those audit reports submitted to the
TVNCOE and external auditors may not otherwise have access to results
from previous TPOs' management or vessel audits. The Coast Guard has
amended Sec. 138.505 to clarify who the submission is required to go
to and the submission timeframe for the external audit results.
Three commenters suggested that a provision be added to Sec.
138.315 that states the OCMI or COTP may be able to extend the external
audit time period due to the unavailability of an TPO.
The Coast Guard declines. Paragraphs (a) and (b) of Sec. 138.315
establish a range of time for companies and TPOs to schedule external
audits. A TPO that has been contracted to oversee the towing company's
TSMS program is responsible for maintaining the audit cycles required
by the regulations. The TPO has the ability to enter into contractual
agreements to conduct required audits. However, in response to these
comments, we added a paragraph (l) to Sec. 139.120 to clarify the
responsibilities of the TPO in regards to conducting required external
audits and surveys within the intervals established in this subchapter.
Some commenters recommended that text be added to Sec. 138.410 to
address the process an auditor must follow when he or she identifies a
non-conformity. These commenters recommended adding a requirement that
the TPO notify the owner or managing operator and the Coast Guard
immediately of any recognized hazardous condition that poses an
imminent hazard to personnel, the towing vessel, or the environment.
For less serious non-conformities, these commenters recommended that
the auditor only require the owner or managing operator to develop and
implement a corrective action plan.
The Coast Guard agrees with the commenters' suggested edits. First
of all, we amended Sec. 138.505 to make clear where external audit
result reports are to be submitted. Under Sec. 138.505, all detected
non-conformities would be reported to the Coast Guard because they
would be part of the results of any external audit. Section 138.505
contains requirements on what is to be submitted to the Coast Guard by
the external auditor and when it is to be submitted. In addition, we
also amended Sec. 138.410 to require the auditor to notify the Coast
Guard within 24 hours of discovering a major non-conformity which, as
defined in Sec. 136.110, would cover hazardous conditions that pose
imminent hazards. We also amended Sec. 138.410 in response to this
comment to ensure the auditor reports major non-conformities to the
owner or managing operator.
We received several comments, particularly from maritime companies,
requesting that we add language to proposed Sec. 138.500 to specify
which Coast Guard office or official the owner or managing operator
should notify prior to conducting a third-party audit and to clarify
that the Coast Guard's attendance at such audits--attendance that Sec.
138.500(b) allows the Coast Guard to require--would not or should not
cause delays in the audit.
The Coast Guard has amended Sec. 138.500(a) in response to these
comments to include a notification to the cognizant OCMI at least 72
hours prior to an external audit to mitigate potential delays in the
conduct of the audit from Coast Guard scheduling, if
[[Page 40035]]
attendance is required. In a related amendment, we deleted Sec.
139.170 in its entirety because those requirements are already stated
in parts 137 and 138.
A company suggested that Sec. 138.505 clarify that audit records
only be provided to the Coast Guard upon request. Also, a maritime
company requested to be able to submit documents required by Sec.
138.505 electronically.
The Coast Guard disagrees with the suggested change to Sec.
138.505 to only provide records upon request. Final reports from the
external management and vessel audits must be provided to the Coast
Guard within 30 days of an audit. For the Coast Guard to properly
oversee vessels using subchapter M's TSMS option, it is important that
it receives final reports soon after they are completed. As noted
above, we set the 30-day submission deadline in response to a previous
comment. We note that in addition to this submission requirement, Sec.
138.315(c) requires records of external audits to be maintained for 5
years and made available on request. These reports are valuable
historical records that must be available when needed by internal and
external auditors as well as by the Coast Guard.
As for submitting external audits records or results required by
Sec. 138.505 electronically, we noted earlier that we amended Sec.
140.915(b) to provide safeguards against false or late electronic
entries in towing vessel and TSMS records. If the submitter uses
equivalent safeguards for transmitting records, the Coast Guard will
accept electronically transmitted external audits records that Sec.
138.505 directs be submitted to the Towing Vessel National Center of
Expertise (managing operator's compliance audits) and the cognizant
OCMI (towing vessels external audits) so long as the means used allows
the Coast Guard to reliably verify the person making the submission and
the authenticity of the external audit records. For those seeking to
submit external audits records or results to the Coast Guard
electronically, the TSMS must address the means to be used to make
electronic submissions. We have amended Sec. 138.505 to reflect this
option.
We received comments from a maritime company and an individual
requesting more information regarding the address to which the results
of an external audit are to be submitted to the Coast Guard.
The Coast Guard agrees with these requests and has amended Sec.
138.505 so that it is clear to the TPO which Coast Guard office or
official external audit records must be submitted to. Also, we have
inserted the address for the Coast Guard Towing Vessel National Center
of Expertise.
We received six comments from maritime companies requesting more
information be provided regarding potential actions the Coast Guard may
take if an owner is found to be noncompliant with the TSMS or
requirements in subchapter M. Also, two commenters suggested that the
TSMS is ``unenforceable'' and that we do not have a sufficient penalty
process in place for violations.
The company and its vessels are subject to a broad range of actions
by the Coast Guard and the TPO depending on the conditions found on the
vessel. Companies and vessels operating under a TSMS that fail to meet
minimum requirements may be subject to enforcement, including Captain
of the Port orders restricting operations, suspension and withdrawal or
revocation of the COI, and suspension or revocation of the TSMS
certificate. Also, as we state in Sec. 140.1000, violations of the
provisions of this subchapter will subject the violator to the
applicable penalty provisions of Subtitle II of Title 46, and the
penalty provisions of Title 46, and Title 18, U.S.C.
A company expressed concern about whether the Coast Guard would
have resources to hire a sufficient number of competent vessel
inspectors for convenient scheduling for the company, including drydock
scheduling.
Regarding having a sufficient number of competent vessel
inspectors, as we indicated in response to comments above, the Coast
Guard is prepared for what it has estimated will be the demand for
annual inspection from owners and managing operators selecting the
Coast Guard inspection option. The Coast Guard will closely monitor the
demand for inspections and will make resource adjustments as necessary.
Two maritime companies felt that use of any Coast Guard inspection
resources should be based on risk and that those companies that have
had satisfactory safety records, and successful TSMS audits, should not
have the same level of Coast Guard oversight as companies with a
history of poor performance.
The Coast Guard agrees with the comment about its allocation of
resources and intends to use a risk-based approach based on safety,
survey, inspection and audit histories.
One commenter requested information regarding how the Coast Guard
will manage conflict of interest potentially created by future
employment opportunities in the towing vessel industry offered to those
conducting inspections. All Coast Guard personnel are bound by ethics
laws and regulations which govern their ability to seek and accept non-
federal positions following their government service.
One commenter urged the Coast Guard to obtain full jurisdiction
over regulated towing vessels, including areas that OSHA is currently
regulating.
This request is beyond the scope of this rulemaking. OSHA will
continue to enforce its requirements on shipyard employers that perform
shipyard employment subject to 29 CFR 1915 on inspected and uninspected
vessels. OSHA will also continue its current enforcement on uninspected
vessels.
A towing company suggested that a more ``streamlined'' TSMS be
offered to smaller companies so as to avoid burdensome administrative
requirements.
A safety management system in general, and the TSMS in particular,
is a flexible tool for management in that it is user-defined to address
the unique operations, equipment and hazards present in the vessel
operator's market. For the small business operator with a fleet of one
or two vessels the TSMS may not need to be an expansive document. The
requirements to identify the range of operations for a small towing
vessel serving a limited area and market is likely to be much less than
that of a larger towing vessel company consisting of dozens of vessels
and serving a large, diverse market over a large area.
The TSMS for small operators is scalable to their operation. Thus,
it can be ``streamlined'' to address a limited set of assets, process,
and personnel. As a towing vessel operation grows, so too would the
TSMS need to scale up to identify the growing inventory of operations
and accompanying safety concerns. We have not made any changes from the
proposed rule based on these comments.
One commenter suggested that the safety culture in the towing
vessel industry could be further developed by addressing the
communication barrier between managers and operation personnel.
We believe the safety culture the commenter refers to will be
greatly enhanced in companies with a TSMS in place. A TSMS is the
central document that directly links the towing vessel and the shore-
based management operation. For a TSMS to be effective, management and
operational personnel must continuously communicate. The TSMS documents
processes, responsibilities and required action that define the
[[Page 40036]]
mutually supporting actions between managers and operation personnel.
The Coast Guard believes that the integration of the TSMS will result
in enhanced safety as it promotes greater communication and also
defines corrective actions required when communications fail to produce
the intended result of improving safety.
One commenter suggested that for small companies that choose to
elect the Coast Guard inspection option, language should be added to
indicate that ``alternative compliance methodologies'' are acceptable.
As we noted above, the Streamlined Inspection Program in part 8,
subpart E, of this chapter, is an option that vessels subject to
subchapter M may seek to use to renew a COI. Also, in Sec. 136.115, we
proposed accepting certain alternative approaches to satisfying
subchapter M requirements. We did not propose, however, to allow
vessels subject to subchapter M to take advantage of part 8, subpart
D's, Alternative Compliance Program to obtain a COI. We have made no
changes from the proposed rule based on this comment.
Another commenter suggested updating the Streamlined Inspection
Program to include electronic, downloadable forms, and user-friendly
templates.
This suggestion is outside of the scope of this rulemaking. We made
no changes from the proposed rule based on this comment.
In the NPRM we discussed comments submitted in response to seven
questions we posed in a December 30, 2004, Inspection of Towing Vessels
notice. In response to that portion of the NPRM, one of these
commenters recommended that all vessels should comply with the proposed
SMS rules within 1 year. The same commenter suggested that using the
ISM Code from 2002 as a guideline in developing the SMS requirements
will allow for a number of operators using the AWO RCP to be compliant.
Neither our proposed rule nor this final rule would require towing
companies selecting the Coast Guard compliance option to establish a
safety management system. This rule provides an option for towing
companies to use the ISM systems currently published in 33 CFR part 96
or other safety management systems acceptable to the Coast Guard under
Sec. 138.225. The Coast Guard believes that we are providing
sufficient flexibility for towing companies that want to adopt the
safety management system option under subchapter M.
We also received two comments on the proposed rule that opposed the
TSMS. One stated that TSMS should not be the basis of any inspection
regime and that any governmental inspection program should be staffed
appropriately to provide for Coast Guard inspections, and asserted that
having third party or other industry inspectors opens the door to
profiteering or altered inspection requirements not originally intended
by the regulations.
The Coast Guard views subchapter M external and internal survey
programs, combined with Coast Guard oversight of vessels and
organizations choosing the TSMS option, as an effective means of
helping to ensure compliance with subchapter M requirements. In
addition, all vessels subject to subchapter M will be inspected by the
Coast Guard before obtaining a COI and at least once every 5 years. See
Sec. Sec. 136.210 and 136.212.
Another commenter stated that TSMS is not necessary as an option
because the Coast Guard can do the inspections as outlined in
subchapter T (Small Passenger Vessels) which incorporates everything
that is required in subchapter M. We disagree that subchapter T is
appropriate for the unique nature of towing vessel operations, which is
reflected in our authorization in 46 U.S.C. 3306(j) to establish an SMS
``appropriate for the characteristics, methods of operation, and nature
of service of towing vessels.'' We believe that a towing-vessel-
specific subchapter is appropriate, rather than imposing existing
inspected vessel regulations on towing vessels. Towing companies that
may lack the resources to develop and implement a TSMS, or choose not
to, must follow the Coast Guard inspection option.
I. Third-Party Organizations (TPOs) (Part 139)
We received several comments, mostly from maritime companies,
requesting that the list of approved TPOs be made available online.
The Coast Guard concurs with this recommendation and plans to
publish a list of TPOs for the towing vessel industry to refer to when
considering the selection of a TPO. The Towing Vessel National Center
of Expertise (TVNCOE) will update and maintain the list and make it
available at: www.uscg.mil/tvncoe.
Other commenters requested that Sec. 139.120 be changed to include
the name of the Coast Guard program office to which an organization
seeking to become a TPO should submit its request.
The Coast Guard agrees. We have amended Sec. 139.120 to identify
the office and address of the TVNCOE, where such requests should be
sent.
One commenter expressed concern regarding the option offered by the
wording of Sec. Sec. 139.115 and 139.120 for TPOs to create customized
audit guidelines and tools. The commenter pointed out that the variety
of audit reports could present inconsistencies during compliance
checks.
As proposed, part 138, subpart D, of this final rule requires that
audits must be of sufficient depth and breadth to ensure the owner or
managing operator meets the requirements outlined in Sec. 138.220. In
our NPRM, we noted that an elaborate TSMS designed for large operations
may be impractical for owners or managing operators with small
operations, and that a small company may seek to use a significantly
scaled down TSMS tailored to its operation. We acknowledge there will
be variations in TSMSs. Similarly, we acknowledge that Sec. Sec.
139.115 and 139.120 allows TPOs to develop customized audit guidelines
and tools. The Coast Guard intends to issue guidance that may include
sample checklists, job aids, and guides, but we have not changed
Sec. Sec. 139.115 and 139.120 based on this comment because the
requirements in part 138, subpart D, must still be met and we do not
favor more prescriptive, one-size-fits-all standards in part 139.
One commenter expressed confidence in the Coast Guard's ability to
oversee the inspection of towing vessels conducted by classification
societies. We received other comments expressing support for the use of
qualified or trained third-party auditors and surveyors. Also, several
maritime companies and a professional association supported Coast
Guard's proposal to allow smaller entities, other than recognized
classification societies, to apply for Coast Guard approval.
Under proposed Sec. 139.110 a recognized classification society
automatically would have met the requirements of a TPO for the purposes
of part 139. However, as noted above, we have amended Sec. 139.110 to
clarify the distinction between audits and surveys. A recognized
classification society meets the requirements of a TPO for the purpose
of performing audits. An authorized classification society meets the
requirements of a TPO for the purpose of performing surveys. We did
this to ensure the Coast Guard has evaluated the classification
society's ability to carry out vessel surveys. We added a definition in
Sec. 136.110 of ``authorized classification society'' for clarity.
Paragraph (c) of Sec. 139.110 has been amended to specify that
organizations qualifying as TPOs under paragraphs (a) or (b) of that
section must
[[Page 40037]]
ensure that employees providing services under part 139 hold proper
qualifications for the particular type of service being performed. We
also note that the criteria stated in our TPO application section,
Sec. 139.120, allow small entities to become TPOs. As we defined it,
the term ``third-party organization'' is used to describe an
organization approved by the Coast Guard to conduct independent
verifications to assess whether TSMSs and towing vessels comply with
applicable requirements contained in this subchapter.
All auditors and surveyors approved to conduct subchapter M
external surveys and audits would be part of a TPO. We set standards
for auditors and surveyors in Sec. 139.130, but these are used in
conjunction with Sec. 139.120 where we require TPO applicants to list
the organization's auditors and surveyors who meet the requirements of
Sec. 139.130. On further review of Sec. 139.130(a), the Coast Guard
realized it makes sense to include ``surveyor'' in this lead paragraph.
The specific qualifications for an auditor and a surveyor remain in
paragraphs (b) and (c), respectively. We have edited this section
accordingly.
One commenter expressed concern that the requirements for TPOs
would result in only classification societies qualifying to become
auditors. The commenter was concerned that class society personnel are
experienced in blue water shipping but not towing vessel operations.
The Coast Guard developed this rule to ensure that organizations,
including small entities, with the requisite knowledge, experience, and
qualifications would be eligible to become a TPO. The standards in part
139 allow organizations other than recognized classification societies
to become TPOs, and meeting these standards should be within the
capabilities of small entities seeking to provide such services to the
towing industry.
As qualified in our discussion above, Sec. 139.110 does not
subject recognized or authorized classification societies to additional
requirements for application as a TPO; however, as stated in Sec.
139.110(c), their employees providing services under this part must
have the proper qualifications in accordance with Sec. 139.130. The
Coast Guard established this requirement to ensure that employees of
recognized classification societies have the proper experience in
towing vessel operations in order for them to carry out TPO audits
under subchapter M.
To help readers better understand that relationship, in the
regulatory text of this final rule we have converted references to
``approved third-party auditor'' or ``approved third-party surveyor''
to show this relationship--e.g., ``surveyor or auditor from a third-
party organization.'' Also, although we have left some difficult-to-
change instances in place, we avoid using the word ``approved'' with
TPO because, as noted above, by definition a TPO is approved.
We received several comments, particularly from maritime companies,
supporting Coast Guard's oversight of third-party auditors and urging
the Coast Guard to implement the approval process for third parties
prior to the finalization of the rule. Commenters felt that the Coast
Guard would need to ensure that a sufficient pool of third-party
approvers is available prior to the increased demand created by
subchapter M compliance.
The Coast Guard is aware of the concern regarding the availability
of third-party organizations. Subchapter M regulations governing third-
party organizations need to become effective before the Coast Guard
will be able to evaluate requests from organizations seeking to become
a TPO under part 139. That effective date is July 20, 2016. Also, on
that date, in accordance with Sec. 139.110, recognized classification
societies and authorized classification societies may begin acting as
TPOs for the purpose of conducting subchapter M audits and surveys. As
we noted above, we used a phased approach in our Sec. 136.202
deadlines for obtaining a COI so as to distribute the work load over a
6-year period from the effective date of this final rule.
A commenter suggested that the Coast Guard publish a Navigation and
Vessel Inspection Circular (NVIC) that provides the qualification
process for TPOs.
The Coast Guard plans to issue a guide to assist small entities,
including those interested in becoming a third-party organization under
subchapter M. However, we believe that part 139 is sufficiently
specific. Section 139.120 identifies the information an organization
would need to submit to become a TPO for purposes of subchapter M. We
have amended Sec. 139.120 so it more precisely identifies where such
requests should be sent. Section 139.130 includes a list of the
qualifications of auditors and surveyors that those applying to become
a TPO need to use to identify that organization's auditors and
surveyors who meet these requirements. The Coast Guard will consider
issuing guidance if it identifies wide-spread confusion after this rule
is published.
Some commenters, including maritime companies and trade
associations, viewed the qualifications required for surveyors in Sec.
139.130 as inadequate and recommended that the qualifications include
sufficient background, training, and experience to qualify as a TPO.
One of these commenters suggested that training for both auditors and
surveyors should be provided by an independent accreditation
organization. A commenter provided text edits to the language in
proposed Sec. 139.130(b)(2) and recommended several minimum education
requirements for auditors and surveyors.
Section 139.130(c) already specifies a minimum level of education,
skills, and experience needed for surveyors from TPOs. The ISO standard
training requirement for auditors and the marine surveyor's
accreditation requirement, as stated in Sec. 139.130, incorporate a
role of independent accreditation organizations in the required
training for both surveyors and auditors from TPOs. The Coast Guard
feels that the criteria in Sec. 139.130, which lists qualifications of
auditors and surveyors, provides a sufficient minimum level of
education, skills and experience needed for third-party surveyors and
auditors, and that we cannot point to evidence that higher-level-
education requirements would be justified. Owners, managing operators,
and TPOs can establish additional requirements at their discretion.
Some commenters suggested that the Coast Guard require surveyors to
receive ISO 9000 series training.
In Sec. 139.130 we include successful completion of an ISO 9001-
2000 or 9001-2008 lead auditor/assessor course or Coast Guard
recognized equivalent qualification for auditors, but not surveyors.
The Coast Guard does not believe that we should add training in ISO
9001 standards as a required qualification for surveyors because
surveyors conduct direct inspections of vessel equipment and systems as
opposed to auditing SMS processes. In addition, the ISO does not have a
9001 equivalent for surveying at this time.
We received a comment requesting that existing qualified and
certified inspectors that participate in an auditing program be
``grandfathered'' as approved third-party inspectors.
The Coast Guard does not intend to allow grandfathering of existing
inspectors who may be participating in some form of an existing
program. The Coast Guard has no oversight of these personnel and has no
specified minimum qualifications for them to
[[Page 40038]]
conduct such work. If a person with qualifications required in Sec.
139.130 wishes to conduct subchapter M TSMS audits or survey, he or she
would need to start or become part of a TPO.
We received requests for more information regarding the monitoring
and removal process of auditors or third-party companies.
In Sec. 139.145, we describe the process for a suspension of
approval when the Coast Guard has determined that a TPO is not
complying with the provisions of part 139. Under that process the Coast
Guard will provide details to the TPO of the organization's failure to
comply and provide a time period for the organization to correct its
failure(s). In this final rule, we shorten Sec. 139.145 by replacing a
repeated list of procedures the Coast Guard must follow for a partial
suspension with a reference pointing back to the same procedures listed
in paragraph (a) for a suspension.
In Sec. 139.150, we make clear that the Coast Guard may revoke the
approval of a TPO if the organization has demonstrated a pattern or
history of failing to comply with part 139, substantially deviates from
the terms of the approval granted under part 139, or has failures that
indicate to the Coast Guard that the organization is no longer capable
of carrying out its duties as a TPO. We amended Sec. 139.150, to
provide provisions for Coast Guard notification to TPOs of actions
taken under Sec. 139.150. In terms of monitoring, we note that Sec.
139.160 lays out means for the Coast Guard to oversee TPOs.
Two commenters requested more information regarding the reference
to ``Required training courses for the auditing of a Towing Safety
Management System'' in Sec. 139.130(b)(4).
Paragraph (b)(4) of Sec. 139.130 in the proposed rule listed
``[s]uccessful completion of a required training course for the
auditing of a Towing Safety Management System'' as one of the
qualifications in paragraph (b) an auditor must meet. Because auditors
must meet all the qualifications listed in paragraph (b), we have
deleted the redundant word ``required'' from paragraph (b)(4). Also,
for added clarity and consistency we removed ``required'' from
paragraph (b)(5)(ii) for the previously stated reason.
Given the nature of the towing industry, the Coast Guard believes
that auditors should complete a TSMS-specific auditing course. At the
time of this writing, the Coast Guard is aware of at least one TSMS
Auditor course and the Coast Guard believes that additional courses
will be developed once this rule becomes effective, similar to the way
courses developed for auditors of ISM-based safety management systems.
We anticipate that market forces will meet the demand for TSMS-specific
auditing courses.
One commenter requested that the regulation be modified to only
accept auditors that are U.S. citizens.
The Coast Guard disagrees with this recommendation. This commenter
did not provide reasons why we should make the requested change and we
find no reason to base the eligibility for becoming an auditor in a TPO
on citizenship. There are towing vessels operating overseas or in U.S.
jurisdictions outside of the continental U.S. Requiring that an auditor
be a U.S. citizen might unnecessarily limit the availability of
auditors to these vessels. Also, a recognized classification society
may operate around the world and is not required to employ only U.S.
citizens.
A commenter suggested that both auditors and surveyors must be
accredited by an independent accreditation organization that is
accepted by the Coast Guard and is organized especially for the purpose
of accrediting auditors and surveyors to perform work in documenting
compliance with subchapter M requirements for towing vessels. The
commenter did not believe that the National Association of Marine
Surveyors (NAMS), the Society of Accredited Marine Surveyors (SAMS), or
another other organization should be allowed to accredit individual
surveyors for purposes of subchapter M until the Coast Guard has
approved the organization's accreditation processes. This commenter
suggested the possibility that this accreditation process could also be
done by an independent third-party auditor/surveyor accreditation
organization that is accepted by the Coast Guard.
We note that, that as with other organizations, NAMS and SAMS are
not required to apply for approval to the Coast Guard to accredit
individual surveyors. In Sec. 139.130, where we list qualifications
for auditors and surveyors, we have removed paragraph (c)(4), which
references accredited marine surveyors and NAMS and SAMS. Instead, we
added ``accredited marine surveyor'' to a list of other relevant marine
experience in paragraph (c)(2)(ii).
These edits eliminate names of specific accrediting organizations,
but still include work experience as an accredited marine surveyor as a
factor to be considered and identified in applications. The Coast Guard
believes that accreditation is a valuable factor to consider, but not
an essential one--as reflected in the proposed rule which only required
that qualifications from paragraph (c)(1) (education) and one of the
two remaining paragraphs, (c)(2)(i) or (ii), be met. At this time, the
Coast Guard does not see the need for it to accept an independent
accreditation organization for the purpose of accrediting subchapter M
auditors and surveyors.
Some commenters recommended that the Coast Guard require that all
TPOs provide and maintain a list of current and former auditors and
surveyors.
As we proposed in the NPRM, Sec. 139.135(a) of the final rule
specifically requires TPOs to ``maintain a list of current and former
auditors and surveyors.'' In Sec. 139.135(b), we remove the word ``for
approval,'' but retained the requirement that to add an auditor or
surveyor, the TPO must submit that person's experience, background and
qualifications to the Coast Guard. We note that it is the
responsibility of the TPO to ensure that auditors and surveyors
conducting work for their organization satisfy the qualifications
requirements in Sec. 139.130. The submissions required by Sec.
139.135(b) will assist the Coast Guard in its continual oversight of
TPOs.
A State government and a task force suggested that the Coast Guard
consider developing a TPO-rating criterion that is based on the
percentage of towing vessel companies (for which the TPO has issued a
TSMS certificate) that the Coast Guard independently finds to have
major non-conformities. If the number of companies in a given period
having major non-conformities exceeds that percentage, the TPO should
be automatically placed on the a ``grey list,'' and be required to
demonstrate to the Coast Guard that it is taking actions to improve its
oversight/auditing program. The commenters felt that this criterion
would help vessel owners and operators assess the qualification of its
oversight program.
The Coast Guard will consider this recommendation after it gains
experience with the implementation of these rules when developing
metrics for evaluating and overseeing TPOs.
Two commenters expressed concern that a company may switch TPOs to
find one that enforces compliance with subchapter M less rigorously.
These commenters suggested that the Coast Guard develop a criterion to
prevent towing vessel companies from ``third-party organization
hopping,'' such as a provision that if a towing vessel company changes
TPOs more than once in a 5-year period, an external Coast Guard
inspection of the company's
[[Page 40039]]
TSMS documents and vessels is automatically triggered.
The Coast Guard acknowledges that a company may seek to switch its
TPO for the reason suggested, but a company may also change its TPO for
reasons beyond its control or for reasons other than seeking to avoid
full compliance with subchapter M. Because switching TPOs is not
necessarily a reason to focus more attention on a given company, the
Coast Guard would be reluctant to adopt the more-than-once-in-5-years
metric suggested by the commenters, but it does acknowledge that
changing TPOs could be a signal that more scrutiny should be focused on
a company. We note that the monetary costs and the loss of time
associated with such changes will be factors a company would consider
before switching to a different TPO, and therefore we do not expect TPO
switching to be a common occurrence.
Referencing Sec. Sec. 139.120 and 139.155, a commenter noted that
the NPRM does not specify a process for a company to follow if it needs
to appeal a decision of its TPO to deny or revoke issuance of a TSMS
certificate. The commenter also noted that the Coast Guard must create
a specific appeals process because towing vessel companies with a TSMS
are dependent on third-party documentation to obtain a COI. The
commenter wrote that the proposed rule required third parties to
develop procedures for appeals, and allows a company to follow
existing, general appeals procedures, but that more detail is needed.
The Coast Guard has provided a specific appeal process in this
final rule. As reflected in above, in Sec. 136.180 we stated that any
person directly affected by a decision or action taken under this
subchapter by or on behalf of the Coast Guard, may appeal in accordance
with subpart 1.03 in subchapter A of this chapter. We have added Sec.
1.03-55 to identify the Coast Guard official or office appeals should
be directed to, including the appeal of matters relating to action of a
third party, such as when a third party rescinds a TSMS certificate.
A commenter expressed concern regarding a potential conflict of
interest for companies that develop TSMSs or provide TSMS-related
training sessions. The commenter said that such a company would not be
able to objectively inspect systems that they developed because finding
fault with the towing company would be a reflection on their own work.
Moreover, this commenter saw a related potential conflict of interest
resulting if the only companies that could be hired to conduct surveys
and audits were those that didn't develop the TSMS. In that situation,
the commenter noted, it may be the developer's direct competitor who is
hired as the TPO and that competitor would have a natural tendency to
be biased against programs that look different from the ones it
produces.
Section 139.120(o) requires TPO applicants to disclose any
potential conflicts of interest. Section 139.120(p) requires applicants
to submit a statement to the Coast Guard stating that their employees
who are engaged in audits and surveys will not engage in any activities
that could result in a conflict of interest, which we define in Sec.
136.110, or that could otherwise limit the independent judgment of the
auditor, surveyor, or organization. And under Sec. 139.150(a)(3),
conflicts of interest are a factor the Coast Guard may consider when
deciding whether to revoke the approval of a TPO. An organization does
not have to be a TPO to develop or help implement a TSMS, but a TPO is
the only entity that can verify compliance with a TSMS or issue a TSMS
certificate.
One company stated that an organization should be assigned to
oversee the third-party process in order to ensure consistency in the
use of resource materials and tools. Another commenter asked what
process would be in place to oversee TPO training and approvals.
As reflected in the NPRM and this final rule, the Coast Guard will
provide direct oversight of TPOs. A list of Coast Guard oversight
activities appears in Sec. 139.160. This oversight is intended to
ensure that TPOs that conduct audits and surveys for towing vessels
subject to this subchapter comply with part 139 requirements. To the
extent consistency in the use of resource materials and tools by TPOs
is required by part 139, the Coast Guard will provide the oversight
requested. To the extent it is not, we view the requested oversight as
an area best left to market forces. In reviewing proposed Sec.
139.160(g), which discussed the Coast Guard being able to require a
replacement for noncompliance or poor performance, we deleted that
paragraph because it is covered by suspension provisions in Sec.
139.145(b).
We received a comment from a towing company that felt that because
of limited Coast Guard resources, relying on third-party auditors would
be a solution to the increase in demand for inspections after
implementation of subchapter M.
We concur that the use of TPOs under the TSMS option may reduce the
number of Coast Guard inspections required to implement subchapter M.
We received comments from towing companies and professional
associations that suggested that TPO requirements in proposed Sec.
139.160(f) and (g) be moved to Sec. 138.510 because of the discussion
of owner and managing operator compliance oversight of TSMS. One
commenter suggested that Sec. 139.160(f) be moved under Sec. 138.400.
The Coast Guard disagrees with these recommendations. Section
139.160 lists discretionary oversight activities the Coast Guard
employs in its oversight of TPOs. These oversight activities should not
be moved under Sec. 138.510, which describes the Coast Guard's
authority to direct owners, managing operators, and third parties to
explain or demonstrate portions of the TSMS when there is evidence that
the TSMS is not in compliance with part 138 requirements, nor under
Sec. 138.400, which addresses audits of safety management systems. We
did remove Sec. 139.160(g), however, because it is covered by
suspension provisions in Sec. 139.145(b), and we also removed proposed
paragraph (c) because there was no need for us to refer to assigning
personnel to observe or participate in audits or surveys.
A commenter suggested that the Coast Guard open communications with
stakeholders to become better informed of options to ensure consistency
in the auditing process.
The Coast Guard established the TVNCOE in 2010 to help promote
consistency in the regulation of towing vessels and to promote
communications between the Coast Guard and industry as we moved towards
certification of towing vessels. The TVNCOE communicates routinely
through their national customer service representatives, list server,
and Web site (http://www.uscg.mil/tvncoe) with those who will be
subject to subchapter M requirements. As the Coast Guard approving
authority for TPOs, TVNCOE will have oversight responsibilities to
assure consistency with the auditing process.
One commenter said that the Coast Guard needs to ``assure the
integrity'' of the third-party approval system.
The Coast Guard expects that by using a single entity, the TVNCOE,
to review and approve TPOs, the Coast Guard will ensure consistency and
integrity in the subchapter M TPO system.
A commenter felt that in the context of part 139, it is not clear
if a third-party auditor needs to be associated with a TPO or if an
auditor can be approved as an independent operation.
The Coast Guard notes that to perform external audits under
subchapter M, the
[[Page 40040]]
auditor must be listed by a TPO as one of its auditors who meets the
requirements of Sec. 139.130. This individual need not be exclusively
employed by a single TPO. It would be possible for a single auditor--
who worked in a remote location, for example--to work for more than one
TPO. As previously mentioned, the Coast Guard has revised language in
this final rule to make it clear that under subchapter M, external
surveys and audits must be conducted by auditors and surveyors who are
part of--and subject to oversight by--a TPO.
An individual noted that part 139 does not contain procedures on
how to conduct a damage survey of a vessel.
Part 139 deals with TPOs and would not contain requirements
relating to a damage survey. Surveys are generally discussed in part
137. Section 137.300(b) discusses an OCMI's ability to require further
examination of the vessel in the event of damage. In addition, if the
vessel is damaged, Sec. 136.240 addresses how to obtain permission to
proceed for repairs. The extent of a given vessel's damage and other
circumstances may warrant specific survey requirements.
One towing company suggested the need for a peer auditing program
to assess consistency and competency among TPO auditors and surveyors.
TPOs will be required to adhere to ISO 9001 standards for operating
in accordance with a Quality Management System, and their auditors must
have completed training in ISO 9001 Quality Management Systems
Auditing. We list ``accredited marine surveyor'' in Sec. 139.130,
along with other-relevant-marine-experience, as a non-mandatory
qualification for surveyors.
We do not agree with the commenter that supplemental peer-review of
TPO auditors and surveyors is warranted or necessary. We note that the
work of surveyors will be subject to audits, and as noted above in our
discussion of Sec. 139.160, the Coast Guard will be overseeing the
work of TPOs.
An individual argued that the intent of the term ``third party'' is
to explain that the Coast Guard is a third party to towing vessels and
the term should not apply to the organizations to which the Coast Guard
is delegating authority.
The Coast Guard does not use the term ``third party'' in the way
suggested by this commenter. We use the term to refer to a TPO, which
we define as ``an organization approved by the Coast Guard to conduct
independent verifications to assess whether towing vessels or their
TSMSs comply with applicable requirements contained in this
subchapter.'' As previously noted, we have made changes to clarify our
third-party references in this rule, but we have made no changes from
the proposed rule based on this comment.
As noted above in our discussion of comments related to part 138,
we removed Sec. 139.170 because those attendance provisions are
already stated in parts 137 and 138.
J. Operations (Part 140)
We received many general comments from individuals, companies, and
associations concerning our operational requirements in part 140.
Two commenters noted that the purpose section of part 140 does not
explain how the Coast Guard will ensure that non-TSMS operating
companies comply with the regulations because these companies do not
have documented written procedures and are not subject to audits. One
commenter expressed concern that non-TSMS companies would have lower
operation costs and their services would be less safe.
In the NPRM, the Coast Guard offered the TSMS or Coast Guard annual
inspection option. For vessels that do not choose the TSMS option, we
will use Coast Guard inspections to verify compliance with the
requirements of this subchapter. We are confident that the Coast Guard
annual inspection option will help to ensure that towing vessels are
operated at an appropriate level of safety. The casualty reviews
presented in the benefits chapter of the Regulatory Analysis found many
instances in which the Coast Guard inspection and TSMS options were
rated the same in risk reduction benefits and other cases where the
TSMS options scored higher. If a company believes the Coast Guard
inspection option is more cost-effective than a TSMS, this rule
provides the flexibility for that choice. We have made no changes from
the proposed rule based on this comment.
In reviewing Sec. 140.200, and similar sections in parts 141
through 144 which state that if a TSMS is applicable to the vessel it
must have provisions for compliance with that part, we decided to
delete those sections. They are unnecessary because part 138 addresses
what the TSMS must cover regarding all subchapter M requirements.
A company noted that the list of mariners required to have a
Transportation Worker Identification Credential (TWIC) by Sec.
140.205(e)'s reference to 33 CFR 101.105 is too broad and should
instead be the same requirement as under 33 CFR 101.515. Further, an
individual noted that the rule did not have language explaining the
requirement for TWIC cards for individual employees on vessels moving
certain dangerous cargo.
In part 140, subpart B, which includes Sec. 140.205, we do require
that the vessel be operated in accordance with applicable laws and
regulations, but there is no explicitly stated requirement for
personnel to hold a TWIC. The Coast Guard understands the problem with
Sec. 140.205(e)'s reference to 33 CFR 101.105, and in the final rule
we removed that reference and replaced it with the personal
identification requirements of 33 CFR 101.515--which do not require
personnel to have a TWIC.
One commenter suggested that complete background checks for
employees should not be required for those crewmembers who are required
to obtain a TWIC.
The Coast Guard notes that in general a background check is
included as part of receiving a TWIC, and we also note that we are not
requiring background checks in these regulations.
Regarding a Master's authority on board, an individual suggested
that proposed Sec. 140.210 ensure that the TSMS contains a clear
statement emphasizing the master's authority.
The Coast Guard proposed in Sec. 140.210(b) that the master must
take adequate corrective action or cease operations when he or she
believes that an unsafe condition exists. Moreover, Sec. 140.210(c)
further states that the master has the authority to take steps deemed
necessary and prudent to assist vessels in distress or for other
emergency conditions. The Coast Guard believes that these requirements
are sufficient to provide the master of the vessel the appropriate
latitude and discretion to exercise his or her duties to ensure the
safety of the vessel. In reviewing Sec. 140.210, we have added the
officer in charge of a navigational watch as also having the
responsibility to cease operation or take adequate corrective action if
he or she believes it is unsafe for the vessel to proceed. Also, we
amended Sec. 140.210(d) to indicate that the crew must ensure that
either the master or the officer in charge of a navigational watch is
made aware of the vessel's condition. And in Sec. 140.605 we moved a
requirement into paragraph (a) that was covered by proposed paragraph
(c) and added ``or officer in charge of a navigational watch'' in the
discussion of determining if the vessel meets all stability
requirements before getting underway. We made similar revisions to the
requirements for master or officer in charge of a navigational watch in
Sec. Sec. 140.610(c) (hatches and openings) and 140.615(b) (tests and
examinations).
[[Page 40041]]
One commenter felt that if the language in Sec. 140.210(d) is
intended for crew members who are responsible for maintaining a
vessel's COI, then the Coast Guard should require that the vessel's
TSMS contain a provision requiring that crew members receive training
on how to complete the tasks assigned to them by the TSMS and how to
comply with the COI.
The Coast Guard proposed in Sec. 138.220(b)(2)(ii) that the TSMS
contain a policy relating to training personnel in ``duties associated
with the execution of the TSMS.'' The Coast Guard believes that this
requirement is sufficient to ensure that crew members are aware of
their duties under the TSMS. We have made no changes from the proposed
rule based on this comment.
A company suggested that the term ``pilot'' would be more
appropriate instead of ``mate'' in Sec. 140.210(c). Another commenter
suggested that ``mate (pilot)'' be deleted from Sec. 140.210(c)
because its current use suggested that the mate and master were equal,
rather than the master having the ultimate authority on the ship.
Alternatively, the commenter suggested that language be added to Sec.
140.210(c) stating that the mate must inform the master before
deviating from the COI if time and circumstances permit.
The Coast Guard recognizes that throughout the diverse towing
industry there are differences in terminology, including in the use of
``pilot'' or ``mate.'' For purposes of consistency with other sections,
the Coast Guard has chosen to use the terms ``master or mate (pilot)''
in this rule, or ``officer in charge of a (or the) navigational watch''
as appropriate, as they are the most common currently applied terms in
related regulations and policy, including manning regulations in 46 CFR
part 15. The Coast Guard does not agree with the comment about ``mate
(pilot)'' because we are simply referring to the responsibility of the
person in charge of the navigational watch. The Master retains overall
responsibility for the safety of the towing vessel as prescribed in
Sec. 140.210(a). We have made no changes from the proposed rule based
on this comment.
We received two comments suggesting the development of a policy to
restrict the use of cell phones and other non-essential electronic
devices by pilothouse watchstanders.
The Coast Guard has added language in Sec. 140.210(d) requiring
the crew to minimize distractions when performing duties. This
amendment is intended to prevent the non-essential use of cell phones
and other distractions that take away from a crewmember's situational
awareness. Given the commenters' focus on pilothouse watchstanders, we
have amended Sec. 140.640 to expressly require the officer in charge
of a navigational watch to maintain situational awareness and minimize
distractions.
We received two comments suggesting that either the word
``lookout'' be deleted from Sec. 140.400(c), or that the word be
changed to the phrase ``supplemental lookout.'' They argued that the
term ``lookout'' was superfluous because the master or mate serves as
his or her own lookout.
The Coast Guard is requiring in Sec. 140.400 that a record be
maintained for all watchstanders going on and off watch. Lookouts are
added by the master or mate (pilot) under the provisions of Sec.
140.630. This does not preclude the Master or Mate (Pilot) from acting
as a lookout, when appropriate. Section 140.400 requires that lookouts
and all other members of the navigation watchstanding team must have
times of service entered and recorded. Our addition of ``officer in
charge of a navigational watch'' to the list of watchstanders does not
change our need to include lookouts.
We received comments from an individual and an association who
recommended that the Coast Guard should require that any mariner,
engineer, or watchstander that works in the engine room, or near
machinery, be provided with initial safety training and additional
training on the operation and maintenance of installed machinery prior
to beginning work in these areas.
In Sec. Sec. 140.410(b)(10) and 140.515, the Coast Guard
specifically requires safety orientation training on the awareness of
and expected response to any hazards inherent to the operation of the
towing vessel which may pose a threat to life, property, or the
environment. Section 15.405 of 46 CFR requires that crewmembers be
familiar with the relevant characteristics of the vessel prior to
assuming their duties and responsibilities, including the main
propulsion and auxiliary machinery, such as steering gear systems and
controls. We have amended Sec. Sec. 140.405 and 140.410 to note that
personnel must meet the requirements in Sec. Sec. 15.405 and 15.1105
as appropriate. In Sec. 140.405, we also added threats to the
environment during an emergency as situations when the duties and duty
stations of each person onboard must be identified; this amendment is
consistent with general vessel operation objectives stated in Sec.
140.205(a).
Under Sec. Sec. 140.510 and 140.515, it is the responsibility of
the owner or managing operator to identify the unique training required
to mitigate the risk to the specific machinery and operating equipment
aboard each particular towing vessel.
Several commenters suggested that proposed Sec. 140.415 include
the following text in the ``reserved'' paragraph: ``A safety
orientation need not be provided to an individual that is not a
crewmember if that individual is accompanied while on board the towing
vessel by a crewmember who is familiar with the items specified in
Sec. 140.415(a).''
The Coast Guard does not agree. The Coast Guard believes it is
unreasonable to assume that during an emergency the escorting crewman
would have no other responsibilities or duties other than escorting the
individual at all times while aboard the vessel. The Coast Guard
believes that a safety orientation for individuals visiting the vessel
would not place an undue burden in terms of time or distraction. The
Coast Guard has made no changes from the proposed rule based on these
comments. However, note that for simplicity we have removed the
``reserved'' paragraph, made the previous paragraph (a) into
introductory text, and made the previous subparagraphs of (a) into
paragraphs (a) through (d), as appropriate.
One commenter asked for clarity regarding specific drills and
training that would be required in Sec. 140.420(a), and thought that
the requirement of drills to respond to ``other threats to life,
property, or the environment'' was too ambiguous. Another noted that
additional requirements for first-aid trainings should be included in
the regulation.
The Coast Guard in Sec. 140.420(a) provided specific emergency
drills that must be performed. This includes abandoning the vessel,
recovering persons from the water, responding to onboard fires and
flooding, or responding to other threats to life, property, or the
environment. The owner or managing operator is responsible for
identifying any other additional training and drills required in
addition to the above identified requirements based on the specific
intended service of their vessels. This may be covered by the required
risk assessment for TSMS vessels.
The Coast Guard has made no changes from the proposed rule based on
these comments.
We received a recommendation for text additions to proposed Sec.
140.420 that included the option for ``e-learning'' for emergency
drills and trainings. The commenters suggested that the Coast Guard not
require follow-
[[Page 40042]]
on discussions with a subject matter expert if the ``e-learning''
provides scoring at the completion of training and the individual
receives a score higher than the minimum required by the TSMS.
The Coast Guard in Sec. 140.420(e) specifically provides for
alternative forms of instruction for the training aspect of Sec.
140.420; however, the participation in emergency drills must take place
on board the vessel so far as practicable. This section permits
training required by this rule to be conducted by viewing
electronically or digitally formatted training materials followed by a
live discussion led by someone familiar with the subject matter. The
Coast Guard believes that follow-on discussions with members of the
crew and interactive discussions provide insights into the specific
functions of emergency procedures aboard a particular ship and allow
crew members to individually and collectively discuss specific actions
and expectations of each other during drills or actual emergencies.
Further, to ensure that the alternative form of instruction is
sufficient, we amended Sec. 140.420(e) by adding requirements that a
competent individual provide a demonstration using equipment that is
the subject of the training.
We received several comments on Sec. 140.420(d). An individual
noted that ``rescue boat'' was not defined in Sec. 136.110. The
commenter questioned whether the Coast Guard was using the terms
``skiff'' and ``rescue boat'' synonymously in Sec. 140.420(d) and
requested that the Coast Guard define ``rescue boat'' if ``rescue
boat'' and ``skiff'' were intended to be different vessels. Another
commenter felt that requiring a safety orientation for crewmembers to
be conducted annually as proposed in Sec. 140.420(d)(1) was
unnecessary and burdensome.
The Coast Guard recognizes ``skiffs'' and ``rescue boats'' as
different types of vessels and did not use them interchangeably in
Sec. 140.420(d). The Coast Guard agrees that ``rescue boat'' should be
defined and has amended Sec. 136.110 to provide a definition.
As for the second comment, the Coast Guard agrees and has removed
proposed Sec. 140.420(d)(1), which contains the requirement for an
annual safety orientation. The requirements for when a safety
orientation should be conducted can be found in Sec. 140.410(b). The
Coast Guard has amended that paragraph to clarify that a safety
orientation is required for a crewmember prior to that crewmember
getting underway for the first time on a particular towing vessel.
Also, in Sec. 140.410(c) we corrected a reference to ``new vessel,''
by switching it to ``other vessel'' regarding requirements for safety
orientation provided to crewmembers who received a safety orientation
on another vessel. Furthermore in Sec. 140.410(d) we amended paragraph
(d)(3) to require the signature in addition to name of those providing
training.
In reviewing Sec. 140.420(d), we added paragraph (d)(5) which
states that credentialed mariners holding an officer endorsement do not
require the instruction listed in paragraph (d) with the exception of
launching a skiff, if one is listed as an item of emergency equipment
to abandon ship or recover persons overboard. We added a similar
provision in Sec. 140.645(c) for credentialed mariners holding Able
Seaman or officer endorsements regarding navigation safety training
requirements in Sec. 140.645. These changes allow credentialed
mariners to use their previous training to meet specified subchapter M
training requirements.
One commenter suggested that the term ``work vests and anti-
exposure work suits'' be used instead of ``work vest'' in Sec. 140.430
because anti-exposure work suits are also approved under 46 CFR
160.053.
The Coast Guard does not agree with this suggestion. Vessel
personnel are afforded three choices of approved equipment that they
may use. In Sec. 140.430 the Coast Guard addresses the wearing of work
vests and states that life jackets, immersion suits, and work vests
must all meet applicable regulations. The term ``anti-exposure work
suit'' does not appear within 46 CFR subpart 160.053. The Coast Guard
has made no changes from the proposed rule based on these comments.
We received several comments requesting that Sec. 140.430 permit
type III Personal Flotation Devices (PFD) as an alternate to work
vests. One commenter requested that work vests worn at night not
require a light.
Section 140.430 provides the standard requirements for the wearing
of work vests; however, companies can require the use of approved
flotation devices that are of a higher type rating. The Coast Guard
does not agree with the comment requesting the removal of the lighting
requirement for work vests worn at night as this is an important safety
feature for night time operations. We note that we did amend a
reference in Sec. 140.430 to a paragraph in Sec. 141.340 based on
amendments we made in Sec. 141.340; we changed the paragraph reference
from ``(c)'' to ``(g)(1).''
We received several comments opposing the requirement in Sec.
140.435(b) and (c) for small crews and low-risk environments to
maintain automatic external defibrillators (AEDs) on board towing
vessels. Commenters, including maritime companies, felt the proposed
requirement should be removed because subchapter T, which applies to
vessels in higher risk environments, does not require AEDs. Others felt
that the cost of the equipment and training would be a burden on small
companies. A maritime company requested that harbor boats be exempted
from the requirement because of the emergency response personnel and
land-based assistance available. Also, we received several comments
that supported the requirement and need for AEDs on towing vessels. An
individual suggested clarifying that the intent of the requirement is
for vessels that are ``double crewed'' and not those containing
``overnight accommodations.'' Two commenters suggested that the
training for AED use should be left to the manufacturer's
recommendations.
Due to the comparatively high cost of the carriage (estimated by
the Coast Guard at $2,500 per unit for each vessel), maintenance, and
training of AEDs on board towing vessels, the Coast Guard has decided
to remove the AED requirements proposed in Sec. 140.435(b) and (c).
However, companies can elect to carry, maintain, and train crews on
equipment above and beyond the scope of subchapter M requirements.
Owners and managing operators can address AED carriage using a risk-
based approach through the requirement to implement procedures to
identify and mitigate health and safety hazards in Sec. 140.510.
We received some comments on safety concerns that were not included
in the NPRM. Two commenters noted that the NPRM does not include the
safe remediation of asbestos and suggested either referencing OSHA
regulations or other related code in the rulemaking or drafting our own
regulations and adding them to the rulemaking. A commenter also
expressed concerns regarding carbon monoxide exposure from exhaust
leaks in the towing vessels and suggested that the Coast Guard include
guidance on protection against carbon monoxide exposure.
Another commenter suggested that the Coast Guard implement a ``No
Smoking'' policy for mariners. The same commenter and an individual
requested that Coast Guard institute hearing protection programs as
well. Similarly, a commenter suggested that the Coast Guard implement
additional occupational safety and health
[[Page 40043]]
regulations to protect mariners from accidental injury or death.
Another commenter said that the regulations should incorporate
effective means of ``severing or releasing'' a chain or wire rope tow
connection in the case of emergencies, noting that a fire axe cannot
effectively cut such towline. Lastly, two commenters provided several
suggestions for additional workplace safety regulations such as
preventive maintenance programs, the incorporation of the OSHA personal
injury reporting system instead of CG-form 2632 for personal injury
reporting, and a hearing protection program for mariners comparable to
OSHA standards for shoreside workers.
With regard to mariner safety, the Coast Guard is committed to the
safe operation of vessels and the protection of mariners. Section
140.510 establishes the requirements for owners or managing operators
to implement procedures to identify and mitigate health and safety
hazards aboard towing vessels subject to inspection, which can include
exposure to asbestos, smoking, noise, carbon monoxide, and the ability
to sever or release wire or chain towlines. Regarding the comment on
the use of the CG-2692, this rule implements a casualty reporting
regime consistent with the requirements for other classes of inspected
vessels. Further, this final rule requires that the owners and
operators of these vessels develop and implement their own health and
safety processes and procedures--see subpart E of part 140. The OSHA
standards for shoreside workers could be used as a template for this
purpose. The Coast Guard has made no change from the proposed rule
based on these comments.
Finally, the Coast Guard disagrees with the comments regarding the
incorporation of OSHA standards. As we noted in the NPRM, OSHA's
jurisdiction on the workspace safety aspects for seamen on towing
vessels subject to subchapter M will cease. However, we have endeavored
to incorporate some of the OSHA requirements into the Health and Safety
Plan requirements in the final rule. A commenter's recommendation that
Congress transfer certain authority from OSHA to the Coast Guard is
beyond the scope of this rulemaking.
We received numerous comments that objected to proposed Sec.
140.520, which would require the owner or managing operator to maintain
and provide access to medical records. Several commenters suggested
that this section be deleted because medical recordkeeping is not
required in subchapter T. Other commenters also felt that Sec. 140.520
conflicted with the Health Insurance Portability and Accountability Act
of 1996 (HIPAA), Public Law 104-191, and should be deleted in its
entirety, because under HIPAA employers do not retain medical records
on employees containing diagnoses that those employees have not already
seen. One commenter suggested that Sec. 140.520(b) be deleted because
it conflicted with the patient's right to know and violated HIPAA.
Another commenter suggested that the section be revised to emphasize
medical records confidentiality requirements that currently exist in
Federal law. One commenter felt that the section should clarify what
information an employer can give out under HIPAA. One commenter
questioned which medical records need to be retained under Sec.
140.520(a). Finally, another commenter suggested we amend Sec.
140.520(a)(1) so as to require that only medical records related to
pre-employment physicals, injuries occurring in the course or scope of
employment, or medical procedures required by the employer be
maintained.
The Coast Guard agrees in principle with the comments and deleted
proposed Sec. 140.520 from the final rule. The intent of the
requirement was to ensure that owners or managing operators retain
records of injuries occurring in the course or scope of employment as a
result of a health and safety incident on board the vessel. However, we
believe the health and safety plan required under Sec. 140.500 already
includes recordkeeping procedures addressing this issue. Also, we have
amended Sec. 140.505(a) to make clear that the owner or managing
operator must maintain records of health and safety incidents that
occur on board the vessel, including any medical records associated
with the incidents, and that upon request, he or she must provide
crewmembers with incident reports and the crewmember's own associated
medical records.
One commenter suggested that the Coast Guard establish food
sanitation regulations in the final rule and felt that sanitation
regulations, including food sanitation, should be enforced with
recognized standards using an inspection checklist. The Canada Shipping
Act was cited as an example.
The Coast Guard does not agree that additional regulations are
required in the final rule to address the issues of food sanitation
aboard towing vessels. As we proposed, this rule requires that the
owner or managing operator of the towing vessel to establish policies
regarding sanitation and safe food handling. These requirements may be
found in Sec. 140.510(a)(13). Additionally, the Coast Guard has the
authority during normal inspection activities to issue corrective
action orders to a towing vessel to improve any unsafe condition,
including unsanitary food conditions, and under Sec. 137.220, the
owner or managing operator of a towing vessel that has selected the
TSMS option must examine or have examined systems, equipment, and
procedures to ensure that the vessel and its equipment are suitable for
the service for which the vessel is certificated, including being in
compliance with part 140 of this subchapter. The Coast Guard has made
no change from the proposed rule based on this comment.
A professional association noted that the potable water supply for
vessels should be maintained at the same quality as for the Coast
Guard's military and civilian employees. The commenter suggested that
the Coast Guard issue regulations in this rulemaking that are
reasonable and attainable by towing vessels. Two commenters suggested
that if the water supply aboard a vessel does not satisfy tests for
quality and purity the vessel owners must provide bottled water for the
crew members.
The Coast Guard agrees that the condition of water supply aboard
towing vessels should be of a sufficient quality that the members of
the crew are not endangered. Under 46 U.S.C. 3305(a)(1)(D), the
inspection process ensures that vessels subject to inspection have an
adequate supply of potable water for drinking and washing. In the NPRM,
the Coast Guard proposed a requirement in Sec. 140.510(a)(13) for the
owner or managing operator to implement procedures to identify and
mitigate health and safety hazards regarding sanitation and safe food
handling. Having an inadequate supply of safe water for sanitation
purposes and for food handling is to be addressed by the owner or
managing operator. To ensure that potable water is expressly addressed
in Sec. 140.510, and that there is an adequate supply of potable water
for drinking, we have added a potable water supply requirement as Sec.
140.510(a)(14).
One commenter felt that the proposed requirements in Sec.
140.515(b) for training for individuals, other than crew members,
should include more specifics on the information or training required,
such as fire training and abandon-ship training. Another commenter
suggested that the refresher training in Sec. 140.515(d) be repeated
every 5 years, rather than annually, because annually was excessive.
The Coast Guard does not agree that additional information on the
information and training required for
[[Page 40044]]
persons aboard towing vessels other than crew members is required in
this rule to address the commenter's concerns. In Sec. 140.415, the
Coast Guard requires that individuals who are not crewmembers on board
towing vessels must receive additional safety orientation prior to
getting underway or as soon as practical thereafter to include issues
of use of life-saving equipment, emergency procedures, emergency
communications with crewmembers in case of an emergency, and prevention
of falls overboard. Under Sec. 140.515(b), the Coast Guard requires
owners or managing operators to identify, specific to their towing
vessel's operations, what other information or training is needed to
limit the exposure of individuals to hazards onboard the vessel.
The Coast Guard believes that annual refresher training is
necessary but, as reflected in Sec. 140.515(d), the refresher training
does not need to be as in-depth as the initial training. These annual
training requirements parallel or mirror comparable OSHA requirements
which currently apply to uninspected towing vessels. Companies have the
ability to tailor this training to be less comprehensive based on the
risk. We made no changes from the proposed rule based on these
comments.
We received comments from individuals and companies who felt that
the proposed requirement in Sec. 140.610 to close all exterior
openings on the main deck is not feasible when vessels require
ventilation during hot weather, and not necessary in low water where
there is no current.
Others contended that stability is not an issue on inland
waterways, and that there should be no stability requirements for
Western Rivers towing vessels.
The Coast Guard believes that watertight integrity and stability is
a concern on any vessel, regardless of service or operating area.
Towing vessels must be maintained and operated so the watertight
integrity and stability of the vessel is not compromised. There is a
sufficient body of historical evidence regarding towing vessel
casualties in which the cause of the casualty was the lack of
watertight integrity of the towing vessel. Specifically, open hatches
have permitted the uncontrolled ingress of water into the towing
vessel, resulting in the vessel sinking.
Within their final report on ``Recommendations for the Enhancement
of Towing Vessel Stability'' dated September 9, 2013, TSAC provided a
safety recommendation to the Coast Guard, that towing vessel operators
should ``close and dog watertight hatches during towing operations'' to
minimize the risk of down-flooding and progressive flooding of the
towing vessel.
We have provided appropriate exceptions to the requirements in
Sec. 140.610(c)(1)-(3) to give sufficient flexibility to the vessel's
master for crew comfort and convenience. The Coast Guard has made no
changes from the proposed rule based on these comments. However, in
reviewing Sec. 140.610 on hatches and other openings, we added an
express requirement, previously implied in that section, that decks and
bulkheads designed to be watertight or weathertight must be maintained
in that condition.
Some commenters suggested that proposed Sec. 140.610(b) be revised
as follows, ``The master must ensure that all hatches, doors, and other
openings that were installed to be watertight and weathertight are
functioning properly.''
With one amendment, the Coast Guard agrees with the suggested
revision. The intent of proposed Sec. 140.610(b) was that any fittings
that crews rely on for watertight integrity and vessel safety should be
operational and subject to survey. Our revision of Sec. 140.610(b) is
intended to make two things clearer. First, this paragraph covers
hatches, doors, and other openings designed to be watertight or
weathertight, whether or not they are currently watertight or
weathertight. Second, the reference to ``other openings'' in this
section is also intended to be limited to those designed to be
watertight or weathertight.
One commenter recommended that proposed Sec. 140.615(a) apply to
all towing vessels. Another company suggested that this section only
apply to vessels that are not subject to 33 CFR 164.80 regulations.
Because it would be redundant to apply Sec. 140.615 to towing
vessels subject to 33 CFR 164.480, the Coast Guard agrees with the
second commenter and has not made any changes to the applicability of
Sec. 140.615 except that we replaced the term ``inspection'' with
``examination'' to avoid using different terms to describe the same
action.
An individual suggested that repairs, such as repairs to navigation
lights or whistles, need not be recorded as required in proposed Sec.
140.620(d).
The Coast Guard disagrees with the commenter's suggestion that the
repairs to navigational safety equipment need not be recorded. The
Coast Guard believes that a record of repairs made to navigational
safety equipment is a vital component of good management and
recordkeeping. Documentation of repairs made to such equipment is vital
to identifying systemic issues affecting the navigational safety
equipment.
Additionally, if the vessel is operating in accordance with the
safety management system, documentation of repairs made would serve to
provide an account of materials needed and requested as well as
corrective actions taken in order to address the observed deficiencies.
The Coast Guard has made no changes from the proposed rule based on
this comment.
We received comments from a State government and a task force
asserting that the Coast Guard should add language to Sec. 140.620
requiring that vessels carrying oil or hazardous material in bulk
immediately notify the COTP or OCMI when navigational safety equipment
fails and cannot be immediately repaired.
The Coast Guard does not agree with the commenters' suggestion that
additional requirements for reporting are necessary in this rulemaking.
In accordance with 33 CFR 164.53(a), a towing vessel may continue to
the next port of call should navigation safety equipment fail, subject
to the direction of the District Commander or the Captain of the Port
as provided by 33 CFR part 160. A towing vessel is required by 33 CFR
164.53(b) to report to the Coast Guard the loss of critical navigation
safety equipment to include radar, radio navigation receivers, Gyro
compass, echo-depth sounding devices, or primary steering gear. The
Coast Guard believes that these existing requirements are sufficient to
ensure safety for towing vessel operations, and we have made no changes
from the proposed rule based on these comments. We inserted examples of
navigation safety equipment in Sec. 140.620(c), but left the repair-
promptly requirements in that section clearly applicable to all
navigation safety equipment.
Similarly, after further review of Sec. 140.625, the Coast Guard
decided not to repeat the list (of topics for special attention)
already contained in 33 CFR 164.78; instead we refer to that CFR
section in a note, and point to the TSMS, where such a list is more
appropriately maintained.
We received several comments, from maritime companies and
individuals who felt that proposed Sec. 140.630 should be deleted from
the NPRM. Several companies felt that because lookouts are included in
Rule 5 of the Inland and International Navigation Rules (33 CFR 83.05),
the section is redundant for subchapter M. Two commenters suggested
that because lookouts for inspected crew boats are not required in
[[Page 40045]]
subchapter T, they should not be required in subchapter M. An
individual asserted that the words ``dedicated'' or ``designated''
should be included before the word ``lookout'' to make it clear that a
lookout position would be in addition to a watch-standing officer. A
State government and task force member supported a second person for
bridge watch for all towing vessel tank barges carrying oil or
hazardous material in bulk.
The Coast Guard does not agree that the requirements of proposed
Sec. 140.630 should be altered or removed from the rule. The Coast
Guard agrees that Rule 5 of the Navigation Rules clearly identifies the
need to maintain a lookout at all times while underway. The Coast Guard
believes that the additional language provided in Sec. 140.630 ensures
that owners and managing operators of towing vessels have greater
clarity on expectations and thresholds of performance for the placement
of additional lookouts to maintain a state of vigilance whenever
significant change in the operational environment occurs. This section
makes clear that responsibility for navigational safety rests with the
master and mate (pilot) of the towing vessel. Subchapter M establishes
requirements for a class of vessels that have different operational
risks than those covered by subchapter T. As for the requirement for a
second person for bridge watch for all towing vessel tank barges
carrying oil or hazardous material in bulk, the Coast Guard believes
that Sec. 140.630 gives the Master the proper authority to establish
an appropriate number of lookouts based on the conditions and other
factors. To clarify the interaction of Rule 5 and 46 CFR 140.630, the
Coast Guard has made changes from the proposed rule based on these
comments.
We received a comment suggesting that because navigation assessment
is covered in other regulations, it should be eliminated from Sec.
140.635. The commenter felt that because navigation watches are
included in Navigation Rules 6, 7(a) and 8(a), it would be redundant to
include them in subchapter M. Companies also stated that a navigation
assessment should not be required in subchapter M because it is not
required in subchapter T.
The Coast Guard does not agree with the commenter's suggestion to
remove Sec. 140.635. The requirements of Sec. 140.635 provide
additional guidance and requirements for the vessel's master or mate
(pilot) to ensure that the proper planning is conducted and that
sufficient resources, personnel and equipment are available to mitigate
the identified risks. In addition, subchapter M establishes
requirements for a class of vessels that have different operational
risks than those covered by subchapter T. The size of a towing vessel's
tow may be large and continually changing, and more challenging to
navigate than a small passenger vessel which has a consistent size.
Also, varying heights of the tow--the tow's air draft--must be
considered to determine if a tow is low enough to clear bridges along
the towing vessels intended route. In contrast, the height of small
passenger vessels normally remains constant. The Coast Guard has made
no changes from the proposed rule based on this comment.
Two commenters felt that a navigation assessment should be included
in a company's TSMS and not included in the final rule. We received
some comments that were in support of this provision. Three commenters
suggested that navigation watch assessment language should be revised
in accordance with the 2006 \4\ or 2008 \5\ TSAC recommendations on
navigation watch assessments. An individual suggested that only vessels
that transit in large areas should be required to have a navigation
watch assessment. Two commenters felt that it was too burdensome to
conduct and document a navigation assessment for each voyage the vessel
makes in a watch.
---------------------------------------------------------------------------
\4\ Report of the Towing Safety Advisory Committee Working Group
on Towing Vessel Inspection, Task #04-03, Inspection of Towing
Vessels, Sept. 7, 2006, docket ID no. USCG-2006-24412-0004.
\5\ Memorandum from the Towing Safety Advisory Committee
Economic Analysis Working Group, Dec. 16, 2008, docket ID. No. USCG-
2006-24412-0007.
---------------------------------------------------------------------------
The Coast Guard disagrees with the commenters' suggestion that the
requirement for a navigation assessment should not be included as part
of this rule but rather, be required in the company's TSMS. Not all
companies or vessels are required to have a TSMS. Therefore, we have
included these requirements here in part 140.
The Coast Guard disagrees that the navigation assessment
requirements will be overly burdensome. As noted by another commenter,
the activities in the navigation assessment are required by Navigation
Rules 6, 7(a) and 8(a), and the best practice of prudent seamanship. In
the cases where the navigation assessment is not being fully
implemented as current practice, we estimate that an additional 0.2
hours per operating day of effort would be needed to meet the
requirements in the final rule. We believe that subchapter M
requirements for conducting navigation assessments prior to getting
underway or while underway will ensure that officers in charge of the
navigation watch have the most up-to-date information in order to
assess operational risks as well as to anticipate and manage workload
demands during the voyage.
The Coast Guard believes that the requirements for the navigation
assessment have taken into account the safety recommendations and other
guidance received from TSAC. The TSAC recommendations were based on the
premise that the details of the navigational assessment requirements
would be contained in the TSMS. However, not all vessels will be under
the TSMS scheme. Therefore we are separately including the navigation
assesmment requirements here. The core elements of the recommendations,
to identify risk and to take into account the unique characteristics of
the tow, are included in this rule.
Finally, the Coast Guard does not agree with the commenter's
suggestion that only vessels that transit in ``large areas'' should be
required to meet this requirement for navigational assessment. The term
``large areas'' does not provide sufficient information to determine
the boundaries envisioned by the commenter. Furthermore, navigation
assessments have value not only for transits of large areas or of
prolonged duration but also for transits in smaller areas or of short
duration; shorter transits may also contain risks such as bridges, high
winds, or swift currents. This requirement reflects good seamanship and
best practices, and does not pose an undue burden to the mariner. The
Coast Guard has made no changes from the proposed rule based on this
comment.
A State government and task force suggested that the Coast Guard
require vessels towing tank barges that carry oil or hazardous material
in bulk to develop a coastal and inland checklist to determine if
weather conditions make it safe to proceed, and require personnel to
complete the checklist before departure and retain it for Coast Guard
inspection. These commenters also suggested we add language to proposed
Sec. 140.625 to require a qualified licensed officer to be in charge
of the navigation of the vessel, as stated in 33 CFR 164.11.
The Coast Guard does not agree that additional language is required
to address the commenters' concerns. Required tests, examinations, and
assessments for personnel operating towing vessels are provided in
Sec. Sec. 140.615 and 140.635. Section 140.635(a)(3) specifically
requires that the person in charge of the navigation watch assess the
``weather conditions and changes anticipated along the
[[Page 40046]]
intended route'' prior to getting underway. The Coast Guard believes
that Sec. 140.635(a)(3) and other required considerations of the
navigation assessment are sufficient to reduce operational risks and
enhance the safety of the towing vessel and its tows.
The Coast Guard notes that Sec. 140.625 clearly states that at all
times, the movement of a towing vessel must be under the command of a
credentialed mariner. The commenter correctly notes that existing
regulations require a credentialed master or mate (pilot) to be in
control of the vessel at all times while underway. The inclusion of
additional language would not enhance the safety of towing vessel
operations. The Coast Guard has made no changes from the proposed rule
based on these comments.
We received several comments from maritime companies that suggested
that because other rules address the pilothouse requirements in
proposed Sec. 140.640, it should be eliminated. Maritime companies and
a trade association felt that the section should be deleted because
sufficient coverage of this issue exists in Sec. Sec. 140.635 and
140.645. Three commenters stated that because Sec. 140.640 is not
required in subchapter T, it should not be required in subchapter M.
However, three commenters supported this provision. Two commenters felt
that Sec. 140.640 should incorporate the requirements in 33 CFR 164.80
instead of the listed requirements.
The Coast Guard does not agree with the commenters' suggestion that
the requirements of Sec. 140.640 should be removed from this rule, or
that navigation assessment requirements in Sec. 140.635, and Sec.
140.645 navigation safety training requirements, satisfy the objective
of requirements in Sec. 140.640 which are specific to pilothouse
resource management. Towing vessels have significantly different
performance capabilities from vessels regulated under subchapter T. As
such, these vessels require greater levels of coordinated action and
information transmission between members of the navigational watch
team. The TSAC reports and AWO Bridge Allision study as well as
casualty data all identify human factors as a causal factor in a large
percentage of casualties. The Coast Guard believes that pilothouse
resource management requirements will help reduce navigational risks.
While we amended Sec. 140.640 for clarity, and as noted above in this
discussion of part 140 comments to address distractions in Sec.
140.210(d), the Coast Guard has made no changes from the proposed rule
based on these comments.
We intend this rule to provide--as much as practicable--the
requirements for towing vessels in a single subchapter. Not all towing
vessels are subject to 33 CFR part 164. For those that are, Sec. Sec.
140.625 and 140.635 note the need for some vessels to comply with
requirements in 33 CFR 164.78 or 164.80.
We do view it as appropriate to tailor requirements in Sec.
140.640 for those vessels subject to subchapter M rather than rely on
existing requirements in 33 CFR 164.80. Also, we noted a tension
between our statement in Sec. 140.600 that subpart F, Vessel
Operational Safety, applies to all towing vessels unless otherwise
specified, and our selective repeating of this statement in certain
sections. To eliminate that tension, we deleted those unnecessary and
somewhat confusing references to applicability in Sec. Sec. 140.625,
140.635, and 140.640. Also, Sec. 140.600 noted that some vessels
subject to subpart F remain subject to the navigation safety
regulations in 33 CFR part 164. Sections 140.625, 140.635, and 140.640,
as well as Sec. 140.725, contained statements about 33 CFR part 164
applicability that we removed or moved to a note for the section
because this was more informational than regulatory in nature. As
discussed later in this preamble, however, we did delete Sec. Sec.
140.810 and 140.815 and amended Sec. 140.800 to retain and clarify the
statement about applicability.
We received several comments from maritime companies who stated
that because subchapter T does not require navigation training for
deckhands, this training should not be required in Sec. 140.645. A
professional association felt that obtaining a license is enough to
qualify for navigation.
The Coast Guard agrees in part with these comments. The Coast Guard
recognizes that the training requirements in 46 CFR parts 11 and 12,
for certain rating endorsements and all deck officer endorsements
include the knowledge requirements listed in Sec. 140.645. We included
a new paragraph (c) of this section to facilitate a link with the
training requirements in 46 CFR parts 11 and 12.
The Coast Guard, however, is also cognizant that not all mariners
performing lookout functions are credentialed mariners therefore, we
did not change the rest of Sec. 140.645. Lookout duties may be
assigned to crew members aboard towing vessels who do not have a
credential as master or mate. Additionally, a crew member may be
assigned temporary duties to assist the navigational watch team in the
pilothouse during underway operations. It is important that those crew
members serving in such capacity have a basic understanding and
elementary education in the skills necessary to perform any safety
duties assigned to them aboard towing vessel.
One commenter suggested that ``fuel'' also be included in the list
of materials in Sec. 140.655(c) that should not be intentionally
drained into bilges.
The Coast Guard agrees that the drainage of fuel into the bilge
poses a danger to the safety of towing vessel operations and the
environment. Section 140.655(c) prohibits a person from intentionally
draining oil or other hazardous material into the bilge of a towing
vessel from any source. The Coast Guard intended the reference to ``oil
or hazardous material'' in Sec. 140.655(c) to encompass ``fuel,'' but
to make this clear we have added a sentence adopting 33 U.S.C. 1321's
definition of ``oil'' which includes ``oil of any kind or in any form,
including, but not limited to, petroleum, fuel oil, sludge, oil refuse,
and oil mixed with wastes other than dredged spoil.'' With the adoption
of this definition for purposes of Sec. 140.655, we deleted ``and
fuel'' from Sec. 140.655(b) when referencing spills during transfers.
To avoid any conflicting requirements, we amended Sec. 140.655(b)(2)
regarding oil spill containment capacity to limit it to situations when
the requirements in 33 CFR 155.320 do not apply.
We received several comments about Sec. 140.655(c) from companies
suggesting that because the prevention of oil and garbage pollution is
already a requirement under other rules, such as 33 CFR 155.770, the
Oil Pollution Act of 1990, and the International Convention for the
Prevention of Pollution from Ships, this section should be deleted.
The Coast Guard disagrees. By expressly stating the requirement in
Sec. 140.655(c), we make clear that all vessels subject to subchapter
M must comply with this requirement and the requirements stated in 33
CFR 155.770. As previously mentioned, to the extent practicable, the
Coast Guard is seeking to present in one subchapter nearly all the
regulations with which a towing vessel subject to this rule must
comply. This regulation prohibiting the intentional draining of oil or
hazardous material into the bilge is one in particular that we want to
ensure those subject to subchapter M are aware of. The Coast Guard has
made no changes from the proposed rule based on these comments.
A commenter stated that tests and inspections under provisions of
National Fire Protection Association
[[Page 40047]]
(NFPA) 306, Control of Gas Hazards on Vessels, during repairs including
welding, burning, or other hot work were easy to avoid on towing
vessels because these vessels were not subject to Coast Guard
inspection. Noting that the absence of prescriptive regulations
restricts legitimate Coast Guard safety investigations to uncover the
cause of accidents, the commenter recommended that the latest edition
of NFPA 306, Control of Gas Hazards on Vessels, be incorporated by
reference in this rule. Consistent with this recommendation, other
commenters urged the Coast Guard to include a requirement for hot work
operations and safety that is consistent with requirements for cargo
vessels (46 CFR 91.50-1). This commenter also requested that the Coast
Guard draft regulations for this rulemaking that govern the proper use
of any autopilot installed on a towing vessel similar to those that
apply to other classes of inspected vessels.
The Coast Guard agrees that towing vessels should have requirements
for hot work operations and safety, similar to cargo vessels, and that
the standard recommended is appropriate and known within the maritime
industry. In response to these comments, we added Sec. 140.665 which
incorporates by reference portions of NFPA 306 in order to address
Marine Chemist inspections required prior to making alterations,
repairs, or other such operations involving riveting, welding, burning
or like fire-producing actions.
We also added Sec. 140.670 to address the use of auto pilot on
towing vessels adopting regulations, as suggested. This regulation is
similar to auto pilot regulations that apply to other classes of
inspected vessels. We view these additions as needed to ensure the safe
operation of towing vessels and as consistent with our proposal for a
comprehensive subchapter M.
We received several comments regarding proposed Sec. 140.725.
Three maritime companies and a professional association felt that the
requirement for a fathometer on vessels along the Gulf Intracoastal
Waterway is not needed because the channel is ``static and marked,''
and because the depth of the water only changes by a couple feet. An
individual stated that magnetic compasses should be allowed on the Gulf
Intracoastal Waterway. Another commenter thought that ``electronic
position fixing device'' was a vague term, and suggested either that it
should be defined in Sec. 136.110 or that the definition in 33 CFR
164.41 should be incorporated in Sec. 140.725(b)(3). This commenter
also recommended that any devices installed 1 year after the effective
date of the rule be required to be approved under series 165.130.
The Coast Guard does not agree with the commenters' suggestion that
a fathometer is an unnecessary piece of equipment aboard towing vessels
operating in the Gulf Intracoastal Waterway. The Coast Guard agrees
that towing vessels operating almost solely in marked channels
regularly maintained and commonly traversed have a high degree of
reliability with regard to water depth. However, these towing vessels
sometimes deviate from marked channels. A fathometer is a very useful
tool in order to ensure that a towing vessel does not run aground and
is not damaged.
The Coast Guard notes the commenter's suggestion that a magnetic
compass should be allowed on the Gulf Intracoastal Waterway. There is
nothing in this rule that prohibits the use of the magnetic compass on
board a towing vessel when operating on the Gulf Intracoastal Waterway.
In reviewing this comment, we amended Sec. 140.725 by inserting
``illuminated'' before ``magnetic compass'' to match the illuminated
requirement in that section for that alternative swing-meter, and to
ensure the existing requirement that both must be readable is met.
While there is no specific definition of ``electronic position
fixing device'' found in 33 CFR 164.41, the term is generally now
understood to mean a satellite navigation receiver, since that was
allowed as a stand-alone means of satisfying the requirement in 1983
(47 FR 58243, December 30, 1982) and the requirement was subsequently
amended in 2011 once LORAN-based options were eliminated (76 FR 31831,
June 2, 2011).
The Coast Guard does not agree that 33 CFR 164.41 needs to be
incorporated in the requirements of proposed Sec. 140.725(b)(3), but
we have added a definition of ``electronic position fixing device'' in
Sec. 136.110 that defines the term to mean a navigation receiver that
meets the requirements of 33 CFR 164.41. Also, we view the
recommendation for approval under series 165.130 as being overly
prescriptive to include in this final rule without first seeking
comments on that specific proposal.
Note that we reorganized Sec. 140.725 for greater clarity. We
decided that paragraph (a) was unnecessary so we removed it, and we
made proposed paragraph (b) into introductory text, and paragraphs
(b)(1) through (4) became paragraphs (a) through (d).
One commenter suggested that the guidance in CG-543 Policy Letter
10-05 regarding carrying electronic navigation publications on U.S.
vessels should be adopted in subchapter M.
The Coast Guard declines to specifically add this language into the
final rule; however, on February 3, 2016, CG-NAV published NVIC 01-16,
which esblishes guidance on the use of electronic charting systems and
the carriage of electronic navigation pubs. NVIC 01-16 applies to
towing vessels and their requirement for the carriage of navigation
publications listed in Sec. 140.705. In examining our reference to
``information and equipment'' in Sec. 140.705(b), we replaced these
words with ``charts, maps, and nautical publications,'' to better
reflect the section heading and the existing references in the section.
Another commenter suggested that a note should be included in Sec.
140.705(b)(1) that in the event that only electronic charts are used,
the system must be approved by the Coast Guard.
The Coast Guard does not agree. Section 140.705 already requires
that if electronic charts are used, that they must be acceptable to the
Coast Guard. This allows the Coast Guard to consider the system on
which the charts will be displayed when determining if the charts will
make safe navigation possible. The broader issue of electronic chart
systems would be addressed in a separate rulemaking. The Coast Guard
has made no changes from the proposed rule based on this comment.
One commenter suggested that the final rule should require that
officers on watch listen to the Coast Guard Broadcast Notices to
Mariners (BNM) and National Weather Service regularly to avoid hazards.
The commenter also suggested that ``talk-back'' capabilities be
available for crew members that are out of sight of the watch officer.
The Coast Guard does not agree with the commenter's suggestion to
require navigational officers on watch to maintain the suggested radio
watch aboard the towing vessel. Existing 33 CFR part 26 regulations
address radio watch standing requirements. Moreover, whenever a vessel
is operating in a Vessel Traffic Service Area, 33 CFR part 161 provides
additional requirements for a towing vessel to maintain a radio watch.
Also, the Coast Guard does not agree with the commenter's
suggestion that a ``talk-back'' requirement be made applicable for crew
members that are out of sight of the watch officer. The requirements
contained in Sec. 140.640 on pilothouse resource management address
information sharing procedures. Further, if the condition of the vessel
or the construction of the vessel prohibits
[[Page 40048]]
direct communication between the members of the navigation watch team,
then it is the responsibility of the vessel owner or managing operator
to provide the necessary equipment to ensure that communication is
conducted in a manner that provides for safer operation of the vessel.
The Coast Guard has made no change from the proposed rule based on
these comments.
With respect to Sec. 140.715, one commenter suggested that at
least two Very High Frequency (VHF) radios capable of Digital Selective
Calling be maintained on board and also that towing vessels operating
outside of the VHF range have long-band medium frequency or high
frequency radio equipment or a satellite system. Further, the commenter
recommended that all towing vessels should be capable of receiving
Maritime Safety Information Broadcasts. The commenter warned against
provisions allowing cellular radios as an alternative means of required
communication function. The commenter also suggested that changes to
equipment be required immediately following a first inspection or no
later than 5 years from the effective date of the regulations.
The Coast Guard does not agree with the commenter's suggestion.
Section 140.715 reflects a performance standard from current
regulations. As required by 33 CFR 164.72, as long as a continuous
listening watch is maintained, the vessel is in compliance. It is the
responsibility of the master to meet this performance standard. These
requirements are identical to those contained 33 CFR 164.72 and 33 CFR
part 26. The Coast Guard has made no change from the proposed rule
based on this comment.
We received several comments from companies and individuals
regarding towing safety in subpart H of part 140. One commenter
suggested deleting the responsibilities listed in paragraphs (a)
through (c) in proposed Sec. 140.801 and replacing them with language
from 33 CFR 164.74.
The Coast Guard does not agree with the commenter's suggestion
because 33 CFR 164.74 only addresses towing astern. The Coast Guard has
made no changes from the proposed rule based on this comment. However,
we have added ``or officer in charge of a navigational watch'' to the
list of parties who may be responsible for meeting the requirements of
this section, for greater consistency with similar requirements
elsewhere. See discussion of Sec. 140.210 above for more.
With regard to towing vessel horsepower two commenters expressed
concern that the determination of horsepower or bollard pull of the
vessel in Sec. Sec. 140.801 and 140.805 needed to safely maneuver the
tow would be subjectively determined by the owner or managing operator
of the vessel. One commenter felt that companies were not determining
horsepower or bollard pull accurately, and suggested that the Coast
Guard require that companies provide a document from the engine
manufacturer and certified naval architect that rates the vessel's
horsepower using data provided by the maker, the vessel's gear
reductions ratio, and the diameter and pitch of the vessel's propeller.
The Coast Guard does not concur. We included a definition of
``horsepower'' in the definitions section of part 136, and we see no
compelling reason to require additional testing that would not be
appropriate for all towing vessels. The definition of horsepower
requires that the determination of a vessel's horsepower is made by the
Coast Guard or a third-party organization during the issuance of the
COI, and is made using objective information issued by the
manufacturer. The Coast Guard feels that the concerns regarding the
determination of adequate horsepower are addressed in other sections of
part 140 and are appropriately left to the master's assessment to the
specific aspects of the tow, towing vessel's capability, and the
prevailing conditions.
The Coast Guard has made no changes from the proposed rule based on
these comments.
One commenter suggested that a reference to guidelines from the AWO
RCP be included in Sec. 140.801 because the current language of the
section left too much discretion to the owners and managing operators
of towing vessels. One company suggested edits to Sec. 140.801 that
would have rendered it inapplicable to excepted vessels, harbor assist
vessels, vessels operating in a limited geographic area, or vessels
operating on short hauls.
The Coast Guard does not agree with the commenter's suggestion
concerning the inclusion of a reference to the AWO RCP. Section 140.801
requires that the owner, managing operator, or master of a towing
vessel ensures compliance with the performance standards in Sec.
140.801. Those with this responsibility may rely on a TSMS, guidance
documents, or other sources in deciding how best to meet these
requirements.
Also, the Coast Guard does not agree with the commenter's
suggestion of altering the applicability of Sec. 140.801. The towing
gear in Sec. 140.801 is just as important for those vessels the
commenter listed as for other vessels subject to subchapter M. The
Coast Guard has made no changes from the proposed rule based on these
comments.
We received several comments from companies and a trade association
that suggested the deletion of proposed Sec. Sec. 140.815 and 140.820
concerning the inspection of towing gear and related recordkeeping. The
comments suggested replacing these sections with requirements from 33
CFR 164.74 and towline and terminal gear requirements from 33 CFR
164.76. Commenters felt that this change will help reduce confusion
between the towing safety regulations and these subparts. Another
commenter suggested that we add text to proposed Sec. 140.820 to
augment the recordkeeping requirements.
The Coast Guard agrees with the first commenter's recommendations.
We have deleted Sec. 140.810 because Sec. 140.615 will require that
towing gear be examined before getting underway for all towing vessels
not subject to 33 CFR 164.80 already, and we deleted Sec. 140.815
because it was merely informational. We also amended Sec. 140.820 to
apply the recordkeeping to the inspections in 33 CFR 164.76 instead of
Sec. 140.815 as previously proposed.
The Coast Guard also agrees with the second comment, and we have
adopted an amended version of the commenter's proposed change to Sec.
140.820(b). We edited Sec. 140.820 to remove ``bridle'' from the
recordkeeping requirements for examination, because bridles are
normally either attached to or are part of the barge and it would be
too onerous for industry to complete this recordkeeping requirement on
towing gear not under the continuous control of the towing vessel.
One commenter suggested that the description of TSMS recordkeeping
should include the acceptance of electronic recordkeeping as an
alternative. Also, a commenter discussing the official log book
mentioned the possibility of making false or late entries. A third
commenter supported the TSMS and requested that a towing vessel record
as defined in Sec. 136.110 be the exclusive form of recordkeeping for
all records cited in Sec. Sec. 137.135, 137.210, and 138.215.
As stated in 46 CFR 140.910(c), TVRs may be maintained
electronically or on paper. For towing vessels with a TSMS, however,
Sec. 140.910(b) states that another record--other than the TVR, as
provided by the TSMS, must be maintained. We agree that this TSMS
record may also be in electronic or paper form. But to discourage false
electronic entries, we have amended Sec. 140.915(b) to add specific
entry requirements for electronic records to
[[Page 40049]]
include the date and time of entry and name of the person making the
entry. If an error is discovered in an entry, any entries to correct
the error must include the date and time of entry and name of the
person making the correction and must preserve a record of the original
entry being corrected.
With regard to making false or late entries, we note that under 18
U.S.C. 1001, whoever knowingly and willfully makes a materially false,
fictitious, or fraudulent statement or representation with respect to
reports, records, or verifications required by subchapter M
regulations, may be subject to criminal penalties.
Regarding the third comment, the Coast Guard recognizes that a
towing vessel owner or managing operator is required to compile records
and reports in multiple formats and in separate logs and ledgers. Each
of these records have relevance to the TSMS aboard a vessel and are a
resource for the auditor and the surveyor to review in order to
determine proof of adherence to the requirements of the Safety
Management System. The Coast Guard does not wish to impose a regulatory
requirement that would result in unnecessary recordkeeping requirements
upon industry. Requiring all of these records to be kept in one central
record system for the purposes of this rulemaking would be impractical.
The owner or managing operator of the towing vessel has the latitude to
tailor their Safety Management System to define the method and location
of those records central to the safe operation, repair and maintenance
of the towing vessel. We have not made changes from the proposed rule
based on these comments.
Two commenters felt that the proposed recordkeeping requirements in
Sec. Sec. 140.905 and 140.910 are not consistent with the 46 U.S.C.
11304.
The Coast Guard acknowledges that while the 2010 Act was enacted in
October 2010, its requirement for an official logbook in 46 U.S.C.
11304 was not addressed in our proposed rule. We are not, however,
amending Sec. 140.905 or Sec. 140.910 in this final rule. We will
consider addressing 46 U.S.C. 11304 requirements in a separate
rulemaking that would apply to all vessels subject to inspection, and
not just those subject to subchapter M. Further, because 46 U.S.C.
11304 makes reference to hours of service, we would again need to
consider a separate rulemaking as we would want to seek comments on a
specific proposal before implementing those requirements for towing
vessels. We have made no changes from proposed Sec. 140.905 or Sec.
140.910 based on these comments.
One commenter expressed concern regarding potential inconsistencies
between the unofficial and official Coast Guard logbook forms. The
commenter suggested that vessels operating on the Great Lakes should be
exempt from the requirement to maintain an official logbook under Sec.
140.905.
The Coast Guard disagrees with changing Sec. 140.905 to exempt
vessels operating on the Great Lakes. The requirement to maintain an
official log comes from 46 U.S.C. 11301, and Sec. 140.905(a) reflects
the language of the statute, including the exception for vessels on a
voyage from a port in the United States to a port in Canada. We did
make minor changes to this subpart: In Sec. 140.910(d), we corrected a
logbook reference that should have pointed to Sec. 140.905, and in
Sec. 140.915 we added a note observing that for towing vessels subject
to 46 U.S.C. 11301, there are additional logbook requirements in
statute, and that Sec. 140.915 does not alter requirements outside
subchapter M to make entries in specific log books.
One commenter suggested that language from SOLAS V, regulation 28,
Records of navigational activities, be considered in place of the first
sentence of TVR requirements in proposed Sec. 140.910(c). The revision
would have replaced proposed language about a chronological record of
events with language about activities and incidents of importance to
safety of navigation of the vessel, sufficient to restore a complete
record of the voyage.
The Coast Guard disagrees. The requirements of SOLAS V are designed
to meet the needs of an international seagoing community and provide
for much greater depth and comprehensive guidance than that of Sec.
140.910(c). Additionally, the requirements of Sec. 140.910(c) have
been tailored for use by the domestic towing fleet and provide a
reduced burden upon vessel owners and operators. In proposed Sec.
140.915, however, we have added a reference to tests and examinations
that are required by Sec. 140.615. We believe the commenter's concern
is addressed by reading Sec. 140.910(c) in combination with the
specific reporting requirements of Sec. 140.915, as amended.
We received two comments from towing companies who felt that
compliance with subpart I of part 140 would be time consuming and a
burden on companies and the Coast Guard.
The Coast Guard acknowledges the documentation requirements of this
portion of the rule do require some time and familiarity on the part of
the crew. However, we believe the documentation will result in a higher
level of operational safety and effectiveness, which improves
operational performance. The time invested in complying with the
recordkeeping requirements of this portion of the rule is intended to
provide sufficient benefits to offset the time invested. The Coast
Guard has made no changes from the proposed rule based on these
comments.
Two companies requested that the definition of ``towing vessel
record or TVR'' as stated in Sec. 136.110 be a substitute for the
official logbook, CG-706B or CG-706C, required in Sec. 140.905.
The Coast Guard disagrees. Our definition of ``towing vessel record
or TVR'' allows that record to take a variety of forms, ``a book,
notebook, or electronic record.'' In Sec. 140.905 of this rule we
identify vessels that are required under 46 U.S.C. 11301 to use the
official logbook, and in Sec. 140.905(b) we specify the form of the
official logbook. We did not propose to alter the form of the official
logbook in the NPRM, nor do we wish to do so in this final rule. The
official logbook is standardized for all vessels required by statute to
have it. The Coast Guard has made no changes from the proposed rule
based on these comments.
We received several comments from maritime companies, an
individual, and a professional association suggesting that the language
in Sec. 140.915 be clarified to state that the items must be recorded
in accordance with the TSMS associated with the vessel and not recorded
in the TSMS itself. The Coast Guard agrees, and amended Sec. 140.915
to reflect this suggested change.
One commenter asserted that the language in proposed Sec.
140.1005, Suspension and revocation, is too broad and potentially could
lead to ``outright abuse,'' in the commenter's words, of mariners for
mistakes made without criminal intent. A towing company suggested the
deletion of Sec. 140.1005 because it is addressed in 46 U.S.C. 7703.
The Coast Guard disagrees. We believe it is appropriate and helpful
to identify penalties that those holding a license, certificate of
register, or merchant mariner credential may be subject to. Our
language in Sec. 140.1005 is similar, for example, to language in 46
CFR 185.910 in subchapter T. In reviewing Sec. 140.1005(b) in response
to this comment, we added a source reference of 46 U.S.C. 7704 in the
introductory text of Sec. 140.1005, and paragraph (d) to include a
security risk element listed in 46 U.S.C. 7703.
One commenter argued that the marine industry must understand that
the Coast Guard will take equal action against both mariners and
companies for
[[Page 40050]]
violations of regulations in subchapter M.
The Coast Guard has a broad range of options to enforce regulations
against mariners, companies, or both. The OCMI will conduct an
investigation and make determinations as to appropriate course of
action, which may include civil penalties or criminal actions. The
Coast Guard has made no changes from the proposed rule based on this
comment.
Lastly, a towing company pointed out that the regulations are
currently written to assume a male captain and suggested that revisions
should be made throughout the regulations to replace gender-specific
text with him or her, or his or her.
The Coast Guard agrees. We have amended the text in the final rule
to ensure we consistently use gender-neutral language throughout the
rule.
K. Lifesaving (Part 141)
We received several comments from maritime companies, individuals,
and an association regarding lifesaving requirements in part 141.
Several comments revealed misinterpretations of the proposed rule, so
we have made editorial revisions throughout this part, including some
rearranging, restructuring, and renumbering of the text, to improve
clarity and readability.
Three maritime companies recommended deleting or revising part 141
because of lack of demonstrable risk justifying additional costs to
regulated entities.
The Coast Guard analyzed the casualty data balanced against the
costs associated with implementing this rule. The details of this
analysis can be found below in the Regulatory Analysis section of this
final rule. As is discussed in more detail there, we found that the
benefit of risk reduction was commensurate to the cost or, in some
cases, we revised the rule to avoid costs that exceeded the benefit.
For the lifesaving requirements in part 141, the Coast Guard estimates
the annualized cost to be $3.2 million, with annualized benefits of
$4.4 million, resulting in a net benefit of $1.2 million per year. The
positive net benefits estimate indicates that the potential risk
reduction justifies the additional cost of the part.
The carriage, operation, and maintenance of certain approved
lifesaving equipment is a fundamental aspect of being an inspected
vessel. The Coast Guard analyzed the costs associated with implementing
lifesaving provisions of this rule and concluded that the largest costs
associated with the proposed rule arise from the carriage of survival
craft, particularly for inland towing vessels. Noting that the
operating conditions may mitigate the need for survival craft, the
Coast Guard has modified the proposed requirements for survival craft
as described below to reduce the impact on the towing vessel industry.
The Coast Guard believes that provisions of this final rule represent
the minimum requirement for safe operation of an inspected towing
vessel and notes that nothing in this rule would preclude a towing
vessel operator from optionally carrying survival craft as excess
equipment.
In a comment on part 141, a commenter suggested that all our
references to limited geographical areas should be expanded to include
vessels operating in harbor services.
In part 141 we proposed that, unless required by the OCMI under
Sec. 141.305(c)(5), a towing vessel in a limited geographic area need
not carry a survival craft. In this final rule, that provision is
reflected in the first area-of-operation column in Table 141.305 of
Sec. 141.305 and in footnote 1 of that table. Our definition of
``limited geographic areas'' in Sec. 136.110 gives the COTP the
discretion to determine limited geographic areas in her or his COTP
zone. We don't see a need to change that definition based on this
comment, which seems more focused on ensuring that vessels engaged in
harbor services share the same exceptions as those operating in a
limited geographic area. A vessel that engages in harbor services may
do so in multiple locations and may not always be operating in a
limited geographic area, and is not necessarily exempted from carrying
survival craft. A vessel that engages in harbor services within a
limited geographic area as determined by the COTP, however, need not
carry survival craft unless required to do so by the OCMI.
In response to general comments about having time to comply with
equipment-related requirements in subchapter M, we amended Sec.
141.105 to give existing towing vessels until the earlier of either 2
years from the effective date of this rule or the date the vessel
obtains a subchapter M COI to comply with part 141 requirements. We
added Sec. 141.105(a)(2) to clarify that the delayed implementation
provisions for existing vessels do not apply to new towing vessels. We
also revised Sec. 141.105(c) to include a reference to SOLAS Chapter
III as this is where specific lifesaving requirements are contained in
SOLAS.
Because the reference to functional requirements in proposed Sec.
141.110 only applies to survival craft, we relocated that text to Sec.
141.305. An individual suggested we edit proposed Sec. 141.110 (now
Sec. 141.305) by adding ``company'' to those we identified (``owner or
managing operator'') who may choose to meet the functional requirements
in this part instead of the part's prescriptive standards.
We do not agree. We do not see a need to do so because our Sec.
136.110 definition of ``managing operator'' includes organizations and
if a company owns the vessel, it would be covered by our definition of
``owner.''
The same commenter also suggested that the designated approved
third party provide written recommendations to the cognizant OCMI
regarding the OCMI's acceptance of functional requirements, instead of
the third party directly accepting them.
We do not agree. A TPO may consult with the OCMI, but under
proposed Sec. 141.110(c) (now Sec. 141.305(c)(2)) the TPO is free to
accept a managing operator or owner's chosen means to meet the survival
craft requirements of Sec. 141.305, so long as the means are
documented in the TSMS applicable to the vessel. We believe these
documentation procedures are sufficient and do not see a need for the
TPO to provide written recommendations to the cognizant OCMI regarding
acceptance of arrangements that satisfy the functional requirements.
We did not receive comments on Sec. 141.115, Definitions, but
noted that no new definitions were proposed for this part, and removed
this section. Additionally, as discussed elsewhere in this preamble, in
response to requests for clarification on the appropriate approvals for
lifesaving equipment, we imported the definition of ``approval series''
from 46 CFR 199.30 to the definition section for subchapter M and used
that term in part 141 to identify the applicable approval series for
each piece of equipment
We did not receive comments on the incorporation by reference
section, Sec. 141.120, but we did move the contents of that section
into Sec. 136.112 and made Sec. 136.112 the centralized incorporation
by reference section for all of subchapter M. In addition, to better
organize the various technical standards used throughout subchapter M,
we also consolidate central incorporation by reference sections for
other parts into Sec. 136.112.
An individual recommended that in Sec. 141.205(a) we add
``guidelines, instructions, and define level of authority'' to what the
TSMS must include in addition to policies and procedures. The same
commenter also recommended that in paragraph (b) of that section we
require the TSMS to
[[Page 40051]]
``include procedures ensuring that non-conformities, accidents and
hazardous situations are reported to the company, owner, or managing
operator, investigated and analyzed with the objective of improving
safety and pollution prevention,'' instead of simply ensuring objective
evidence of compliance with the TSMS.
The Coast Guard disagrees. We have deleted Sec. 141.205 entirely
because we felt that it was redundant with part 138 in general. As for
the commenter's concern, Sec. 138.220, Towing Safety Management System
(TSMS) Elements, requires that the TSMS include documentation of the
management organization in detail, personnel management policies, and
compliance with other requirements of this subchapter.
We did not receive comments on the general provisions section for
part 141, proposed Sec. 141.220 (now Sec. 141.200), but the Coast
Guard standardized our approval phraseology both here and throughout
this subchapter and also clarified the specific approval required for
each equipment type. These edits are consistent with requests discussed
below regarding Sec. 141.305 to clarify the appropriate approvals for
lifesaving equipment. At the time of their inspection, every towing
vessel must be properly outfitted in accordance with the route for
which they are certificated. However, we further clarified in new Sec.
141.200(c) that requirements in part 141 are based solely on the areas
where a vessel operates.
We did not receive comments on Sec. 141.225, but we found that the
provisions of Sec. 136.115 were more applicable to this part and cited
this section in new Sec. 141.225(a) to reflect Sec. 136.115's
provision that all towing vessels, not just those with a TSMS, may seek
equivalencies. Similarly, we redesignated Sec. 136.115(c) as Sec.
141.225(c) to better align the provisions concerning equivalencies of
novel lifesaving appliances or arrangements within part 141. In
addition, we restructured 141.225 by replacing proposed paragraph (a)
with new paragraphs (a) and (b) to clarify the intent allowing towing
vessels to use alternate arrangements or equipment to meet this part.
We also amended the heading of Sec. 141.225 to better reflect this
section's paragraph (d), which specifies that the cognizant OCMI may
require a towing vessel to carry specialized or additional lifesaving
equipment.
An individual recommended text edits to Sec. 141.230 that would
require the master to ensure that lifesaving equipment is correctly
installed in addition to being properly maintained and ready for use at
all times.
The Coast Guard does not agree. To the extent improperly installed
lifesaving equipment would not be ready for use, the wording of Sec.
141.230 addresses the commenter's concern. We made no changes in
response to this comment.
Regarding Sec. 141.235 and the inspection, testing, and
maintenance of lifesaving equipment, we received a comment from an
association suggesting that the content of 46 CFR 199.190, which we
reference in Sec. 141.235, be added as a stand-alone section in
subchapter M with modifications to apply to towing vessel lifesaving
equipment and to clearly specify when any necessary factory maintenance
is required.
The Coast Guard does not agree. The full text of Sec. 199.190
contains maintenance requirements for various types of lifesaving
equipment, including weekly, monthly, and annual inspections and tests
for lifeboats, rescue boats, and launching appliances. The majority of
towing vessels will not carry this equipment. Therefore, the inclusion
of the complete text of Sec. 199.190 in subchapter M would add little
value. However, Sec. 141.235 points the operator to Sec. 199.190
where he or she can search for the relevant testing and maintenance
requirements for vessels that carry this equipment. In Sec. 141.235,
we replaced the word ``examination'' with ``inspection'' to be
consistent with other related Coast Guard regulations. Also, seeking
consistency with a similar provision in Sec. 142.240, we set the
records retention period to at least 1 year after the expiration of the
Certificate of Inspection.
We received several comments regarding Table 141.305--Survival
Craft. One commenter requested that all towing vessels be equipped with
an out-of-water survival craft, like an inflatable buoyant apparatus.
An individual felt that life floats and buoyant apparatus references
should be deleted from the table, with the exception of references in
footnotes. A trade association and individual noted two terms that
should be changed; ``life floats'' because it was ordered removed by
Congress by January 1, 2015, and the term ``buoyant apparatus,'' which
was suggested to be replaced with ``approved buoyant apparatus'' in
order to comply with proposed Sec. 141.305(c)(6). Another commenter
suggested that we edit proposed Sec. 141.305(b)(6) and (c)(6) by
replacing ``By 2015,'' with ``After December 31, 2014,'' when
specifying when survival craft may no longer be carried on board unless
the craft ensures that no part of the individual is immersed in water.
On February 8, 2016, section 301 of the Coast Guard Authorization
Act of 2015 (2015 Act), Public Law 114-120, 130 Stat. 27, revised 46
U.S.C. 3104. The deadline in our proposed Sec. 141.305(b)(6) and
(c)(6), and Sec. 141.330(g), for a new standard for survival craft to
meet to be eligible for approval--``must ensure that no part of an
individual is immersed in water''--was based on provisions previously
specified in 46 U.S.C. 3104. The 2015 Act limited those standards for
survival craft to passenger vessels. We have therefore removed
references to the deadline and those standards in Sec. 141.305(b) and
(c), and Sec. 141.330, and made edits to align the language with the
remaining functional requirements for survival craft.
We developed the cost estimates for part 141 under the requirements
of 46 U.S.C. 3104 before it was amended by the 2015 Act. Specifically,
we posited that owners and operators of the affected vessel population
would only use inflatable buoyant apparatuses to comply with the out-
of-water mandate. To the extent that affected owners and operators take
advantage of the relaxation of equipment requirements provided by the
2015 Act, this will result in an over-estimate of the cost of survival
craft in this rule's regulatory analysis.
As recommended, we deleted the terms ``buoyant apparatus'' and
``life float'' from the Cold Water Operation portion of Table 141.305
because neither of these items satisfied the minimum requirements for a
vessel operating in cold water. In the Warm Water Operation portion of
the table we removed the rows for life float and inflatable buoyant
apparatus because they are not specifically called out to meet the
minimum carriage requirements although they can be used as a substitute
for a lower safety precedence survival craft as described in Sec.
141.305(d). To avoid possible confusion with ``inflatable buoyant
apparatus,'' we changed ``buoyant apparatus'' to ``rigid buoyant
apparatus'' throughout the final rule. Also, to accurately reflect the
safety precedence hierarchy of survival craft, we moved Inflatable
Liferaft with SOLAS A pack to the bottom of each list.
Also, we have revised the requirements for carriage of survival
craft to exclude vessels operating in protected waters, which we have
defined in Sec. 136.110, unless survival craft are deemed necessary by
the OCMI, and we have revised Sec. 141.305(d) to allow for non-
approved survival craft
[[Page 40052]]
to be carried as excess equipment where no survival craft are required
by this part, provided that the equipment is in good condition and
maintained according to manufacturer's instructions.
In order to further clarify the options for complying with the
functional requirements for survival craft, we have added a new
paragraph to Sec. 141.305, which includes text relocated from proposed
Sec. 141.110. Under the new Sec. 141.305(c), the two options for
complying with the functional requirements for survival craft are
meeting the prescriptive requirements in Sec. 141.305(d) or employing
alternative means, acceptable to the OCMI or TPO, and documented in the
TSMS, if applicable.
A towing company suggested that the table include ``Rivers and
Canals'' as an area of operation.
The Coast Guard does not see a need for this suggested change.
Table 141.305 currently lists ``Rivers'' as an area of operation and
the definition of ``rivers'' in Sec. 136.110 includes canals.
Another commenter suggested removing all rows from the table where
equipment is not required. The same commenter suggested that operations
that are exempt from specific equipment requirements be indicated by
the word ``none'' in the appropriate field in the table. The Coast
Guard agrees, and has revised Table 141.305 accordingly.
We received several comments regarding the footnotes in Table
141.305. Several commenters, including towing companies and
associations, suggested deleting proposed footnote 1 that referenced
survival craft determinations by the cognizant OCMI or as a requirement
deemed necessary in the applicable TSMS. Alternatively, an individual
suggested that a towing vessel operating in ``limited geographic
areas'' be permitted to operate without survival craft.
According to footnote 1 of Table 141.305 in the final rule,
survival craft are not required on towing vessels operating in limited
geographical areas, ``unless survival craft requirements are determined
to be necessary by the cognizant OCMI or TSMS applicable to the towing
vessel.'' Though the Coast Guard does not support requiring survival
craft on towing vessels operating in limited geographic areas, unless
the OCMI or TSMS deems them necessary under Sec. 141.225, operators of
these vessels are welcome to carry properly maintained survival craft
as excess equipment. A towing company recommended that towing vessels
operating within 1 mile of the shore should not be required to have
survival craft, unless determined necessary or if it is required in the
TSMS for that particular towing vessel. A maritime company suggested
deleting the text, ``unless determined to be necessary by the cognizant
OCMI or a TSMS applicable to the towing vessel,'' from proposed
footnote 6, but didn't provide any reasoning for this suggestion.
The Coast Guard does not agree with the proposed amendment to
footnote 6. We believe this provision in proposed footnote 6 is
appropriate because the OCMI (or author of the TSMS) should be able to
evaluate any extenuating circumstances associated with the towing
vessel's operation that would require a survival craft when in general
they are not needed when the towing vessel is operating within 1 mile
of shore. As noted below, however, based on another comment we did move
the text of this footnote to Sec. 141.305(d)(3)(iii).
Several commenters suggested that footnotes 5 and 6 in the table be
moved into the regulatory text, and one commenter recommended deleting
the reference to OCMI approval when moving the text of footnote 6.
We agree that the content of proposed footnotes 5 and 6, as well as
footnote 4, should be moved into paragraph form in the regulatory text
to aid the reader. Therefore, we have inserted the provisions of these
footnotes into paragraphs (d)(3)(i)-(iii) of Sec. 141.305. We
disagree, however, with deleting the reference to an OCMI
determination. When moving the content of proposed footnote 6, we did
insert the source of the OCMI's authority to make such a determination.
One company suggested that because of fast currents in some
waterways, life floats should be permitted to be retained as
supplemental approved survival craft for limited applications as
approved by the Coast Guard. Because of downriver flow, the time that
the crew is in the water, and the time for life raft deployment, the
commenter states it would be difficult for crew to swim against the
Lower Mississippi River's current to catch the life raft that released
and inflated a period of time after the crew member went into the water
as would happen with an automatic deployment. This commenter notes that
crew members in the water would have a much better chance of reaching a
life float as they and it are swept downriver with the current at the
same relative speed.
The Coast Guard acknowledges the commenter's concerns, and in Sec.
141.305(d)(2)(iv) we have permitted a life float approved under
approval series 160.027 to be substituted for a rigid buoyant
apparatus. Also, proposed Sec. 141.220 would have required lifesaving
equipment to be of an approved type, unless otherwise specified. We
amended that section, now Sec. 141.200, to specify that lifesaving
equipment for personal use need not be approved by the Commandant if it
is not required by part 141. We also amended Sec. 141.305(d) to allow
the carriage of non-approved survival craft as excess equipment,
provided that the equipment is maintained in good working condition
according to the manufacturer's instructions.
We edited Sec. Sec. 141.310 and 141.315 to make it clear that they
are applicable to vessels that do not have an applicable TSMS.
As noted in our discussion of comments on Sec. 141.305, the Coast
Guard does not agree with the assumption that the vessel and its tow
operating more than 1 mile from shore could make it to shore in the
event of an accident. Section 141.330 does not impose a separate
requirement that ``other survival craft'' be carried: Instead it simply
sets out the requirements for a skiff if the skiff is intended to be
used as a substitute for approved survival craft required by Table
141.305. Table 141.305 prescribes the operating areas where an approved
inflatable liferaft is required. As noted above, the Coast Guard has
included additional text in Sec. 141.305 prescribing the hierarchy of
approved survival craft, and giving owners and operators the right to
substitute a survival craft of higher precedence. For example, Sec.
141.305(d)(3)(ii) allows an inflatable liferaft approved under approval
series 160.051 or 160.151 to be substituted for an inflatable buoyant
apparatus or rigid buoyant apparatus. Similarly, an inflatable buoyant
apparatus approved under approval series 160.010 or life float under
approval series 160.027 may be substituted for a rigid buoyant
apparatus (Sec. 141.305(d)(3)(iii) and (iv), respectively). If the
operator would prefer to use a non-approved raft as a survival craft,
the functional requirements listed in Sec. 141.305(b) would apply to
the raft.
We received several comments concerning the use of skiffs. One
individual noted that the proposed rule contained no requirement that a
skiff comply with any requirements for safe loading or buoyancy. The
commenter recommended that we amend Sec. 141.330(a) to require
compliance with 33 CFR part 183.
The Coast Guard acknowledges that, for practical purposes,
recreational boats complying with 33 CFR part 183 will commonly be used
as skiffs, but we
[[Page 40053]]
share the commenters' concern regarding the potential for confusion
regarding the requirements for skiffs that are used as survival craft.
The Coast Guard has revised Sec. 141.330 to--
Clarify that skiffs may only be used as survival craft by
towing vessels that do not operate more than 3 miles from shore,
Include the source of the requirements for safe loading
and capacity information (33 CFR 183.23), and
Correct a source reference for marking requirements in
paragraph (f) to match the same source we listed in Sec. 141.315 for
survival craft.
The same commenter noted that equipment referred to in proposed
Sec. 141.330(g) would be approved under 46 CFR part 159, not part 141,
suggested that we edit proposed Sec. 141.330(g) to prohibit the
carriage of skiffs after December 31, 2014, unless the craft ensures
that no part of the individual is immersed in water.
The Coast Guard agrees that reference to the approval of survival
craft is inappropriate in part 141, and has removed proposed paragraph
(g). Additionally, we have revised the title of Sec. 141.330 from
``Other survival craft'' to ``Skiffs as survival craft.''
A commenter also suggested that we not impose size requirements on
a skiff because the entire tow or the towing vessel could usually make
it to shore for evacuation purposes in any type of catastrophic event,
or alternatively we should include an inflatable raft as an ``other
survival craft.''
As already discussed in the context of Sec. 141.305, towing
vessels operating in limited geographical areas or on rivers within 1
mile of shore are only required to carry survival craft if the
cognizant OCMI determines that they are necessary. However, in other
operating areas where we cannot assume that the vessel can make it to
shore, a skiff used as a substitute for a survival craft must be
capable of carrying all personnel onboard. As reflected in both Sec.
141.330 and footnote 2 of table 141.305, vessels that operate more than
3 miles from shore may not use a skiff as a substitute for a survival
craft except for those operating in warm water on the Great Lakes or
Lakes, Bays and Sounds.
One commenter listed several factors that should be considered when
approving existing and new ``skiffs.''
However, the Coast Guard does not intend to ``approve'' skiffs.
Provided that the skiff meets the requirements of Sec. 141.330, it may
be used as a substitute for approved survival craft, as reflected in
Table 141.305.
The same commenter cautioned against using the terms ``skiff'' and
``rescue boat'' interchangeably for fear of confusion between the
functions of these boats.
As discussed earlier in this preamble, the Coast Guard acknowledges
the commenter's concerns and has added a definition for rescue boat in
Sec. 136.110. To further reduce confusion, we have removed the
proposed references to rescue boat in Sec. Sec. 137.220 and 140.405,
but retained them in Sec. 140.420 to leave training or drill
requirements in place for towing vessels that use a rescue boat.
Regarding the sections for lifejackets, immersion suits, and
lifebuoys (Sec. Sec. 141.340, 141.350, and 141.360, respectively), an
individual noted that these sections do not contain provisions for
vessels electing the Coast Guard inspection option.
We disagree. Sections 141.340, 141.350, and 141.360 do contain the
requirements for all towing vessels, whether they elect the Coast Guard
inspection option or the TSMS option.
We received several comments concerning lifejackets. Four
commenters requested clarification of the requirements for lifejackets
at watch stations. Three maritime companies and an association
suggested that one lifejacket per watchstander be required and made
accessible. Commenters felt that the requirement to store lifejackets
at ``watch stations'' is difficult to define for deckhands because they
are mobile; one commenter stated that the term ``watch station'' needs
to be defined.
The Coast Guard does not believe that we need to define ``watch
station,'' but we make clear that lifejackets must be immediately
available to those standing watch as well as to other crew. The bridge
and the engine control room are examples of watch stations. As
specified in Sec. 141.340(b), for towing vessels with berthing aboard,
lifejackets would need to be immediately available for watchstanders
there as well as at other manned watch stations.
Two commenters asserted that the COI should list the total number
of persons allowed on a vessel and state the same number of lifejackets
and space in a survival craft be available.
An inspected vessel's COI will state the total number of persons
allowed on the vessel as well as applicable lifesaving equipment that
is required onboard the vessel. These numbers are based on
determinations made by the OCMI issuing the COI.
One commenter suggested that crew on manned barges in the Great
Lakes, over 3,000 GRT, should not be required to have work vests
because the personnel mostly remain on the barge, which is more stable
than a tug. One commenter suggested that the requirement to provide
both life jackets and work vests is redundant.
The Coast Guard agrees that the proposed Table 141.335 may have
been misinterpreted to mean that work vests were required to be carried
as personal lifesaving equipment. Under Sec. 140.430, work vests are
not required, but are one of three options for use by personnel
dispatched from the vessel or working in an area without rails or
guards. We clarified Sec. 140.430 and removed Table 141.335, as
discussed above, and we have clarified Sec. 140.430 to indicate the
appropriate use of work vests.
Another towing company recommended that proposed Sec. 141.335
should clarify that immersion suits are not required on towing vessels
that travel along inland or Western Rivers. The commenter noted that
proposed Table 141.335 indicated that immersion suits are not required
on vessels travelling on limited geographic areas or rivers, but it
does require immersion suits on vessels travelling on lakes, bays, and
sounds and that there are many lakes that fit subchapter M's definition
of lakes, bays, and sounds along the inland and Western Rivers that are
simply part of a vessel's route, or an area to drop off barges.
The Coast Guard disagrees with this recommendation. In our
immersion suit requirements in Sec. 141.350, the allowance for towing
vessels operating on rivers or in limited geographical areas to not
carry immersion suits assumes that rescue or emergency assistance would
be close at hand, thus limiting the duration that a person would be
immersed in cold water. We cannot make this same assumption on lakes,
bays, and sounds. We have not made changes from the proposed rule based
on this comment.
The Coast Guard removed proposed Sec. 141.335 and Table 141.335
because they contained the same information as Sec. 141.340 and Sec.
141.350.
We revised proposed Sec. 141.340(d), now Sec. 141.340(c), to
clarify that the option to use alternative means to comply with the
lifejacket requirements also applies to non-TSMS vessels, and to cross
reference back to Sec. 141.225.
Several commenters, including maritime companies, suggested that a
paragraph be added to note that lifejackets that are stored on open
racks, where the jackets are clearly seen, do not need labels.
The Coast Guard agrees that clarification was necessary, so we have
revised and consolidated proposed Sec. 141.340(e) and (f) into new
Sec. 141.340(h) to make clear that the
[[Page 40054]]
stowage location marking requirements only apply to lifejackets stowed
in a berthing space, stateroom, or lifejacket container, including
those stored in racks in these types of interior spaces. The Coast
Guard has made additional editorial revisions to this section to remove
redundancies and to locate all lifejacket requirements in this section,
rather than cross-referencing 46 CFR subchapter W, and we have made
amendments to Sec. Sec. 199.01 and 199.10 of subchapter W, to clarify
that subchapter W does not apply to towing vessels. We also numbered
the rows of Table 199.10(a), to aid any possible future edits.
A towing company suggested amending proposed Sec. 141.340(d) to be
consistent with TSAC recommendations for stowing lifejackets. This
particular TSAC recommendation refers to the TSMS option which allows
alternative means to meet the requirements of this section, and also
outlines language requiring the approved TSMS to specify the number and
location of lifejackets to facilitate immediate accessibility at
normally occupied spaces.
The Coast Guard has reviewed the TSAC recommendations and its
proposed edits to draft regulatory text related to lifesaving
requirements in their entirety and confirm that our revisions to
proposed Sec. 141.340(d) (now Sec. 141.340(c)) are consistent with
those recommendations.
We received comments from maritime companies and an association
that recommended that the requirement for posting of placards with
information regarding use of lifejackets be deleted, and that
information in another format be provided on the vessel instead.
While the Coast Guard believes that proper donning and use of the
PFD plays a large part in survival, we note that this information is
covered by the safety orientation required by Sec. 140.410(b).
Accordingly, Sec. 141.345 has been removed from this rulemaking.
One commenter recommended that, at a minimum, each towing vessel
should be required to furnish a throwable flotation lifesaving device
on the end of each barge or tow available and ready for use at all
times to rapidly retrieve a person who falls overboard. The commenter
noted that without a ``lifebuoy'' or equivalent, if a person falls
overboard from a single barge tow, the nearest throwable lifesaving
device may be on the towboat itself and may be 100 to more than 1,000
feet and minutes away.
The Coast Guard recognizes the commenter's concern, but the comment
is outside the scope of this rulemaking. We note that on September 10,
2014, the Coast Guard published a final rule entitled, ``Lifesaving
Devices--Uninspected Commercial Barges and Sailing Vessels'' (79 FR
53621). In the course of that rulemaking, we discussed and evaluated
the feasibility of requiring lifebuoys on barges, and found the costs
to outweigh the benefits. However, vessel owners or managing operators
may opt to carry additional approved lifebuoys for this purpose.
A mariner's association and an individual believed that efforts
towards the protection of personnel from cold weather should include
the requirement of anti-exposure work suits for water temperatures
below 59 degrees Fahrenheit, as cited in the NVIC 7-91. One commenter
suggested that NVIC 7-91 be rewritten to include ``cold water'' areas
found on navigable rivers in addition to its present coastwise
coverage.
Consistent with recommendations in NVIC 7-91, we proposed in Sec.
141.350 to require immersion suits for towing vessels that operate
north of latitude 32[deg] N. or south of latitude 32[deg] S. if the
vessel does not operate exclusively on rivers or in a limited
geographic area. At these latitudes water temperatures drop below 59
degrees Fahrenheit during a typical year. While the Coast Guard agrees
that anti-exposure work suits of the type approved by the Coast Guard
under approval series 160.053 or 160.153 provide valuable thermal
protection to workers on deck, they are not intended to get wet.
Immersion suits are specially tested and approved for thermal
protection during prolonged immersion in cold water. As in Sec.
141.340(c) above, we revised the text in paragraph (a)(3) to clarify
that the option to use alternative means to comply with the immersion
suit requirements also applies to non-TSMS vessels and to cross
reference back to Sec. 141.225.
We received several comments, from maritime companies and others,
requesting proposed Sec. 141.360(a)(1) be deleted because subchapter M
does not apply to vessels less than 26-feet long.
The Coast Guard does not agree. Section 136.105 makes subchapter M
applicable to towing vessels of less than 26 feet if the towing vessel
is pushing, pulling, or hauling a barge that is carrying oil or
hazardous material in bulk, and the requirement in Sec.
141.360(a)(1)--to carry a minimum of one lifebuoy of not less than 510
millimeters (20 inches) in diameter--applies to those towing vessels.
We received several comments from maritime companies and
associations suggesting that the required number of lifebuoys on towing
vessels be consistent with industry practice. On towing vessels of less
than 79 feet, they suggested reducing the required number of lifebuoys
to two from the proposed number of three. On towing vessels of more
than 79 feet, they suggested requiring four, in lieu of what we had
proposed, which was four, plus one on each side of the primary
operating station and one at each alternative operating station if the
vessel is so equipped.
The Coast Guard agrees that two lifebuoys are appropriate for a
towing vessel between 26 and 79 feet in length, and has reduced the
required number accordingly in amended Sec. 141.360(a)(2), consistent
with lifesaving regulations for inspected vessels of similar size.
Similarly, the Coast Guard agrees that the proposed text appears to
require more lifebuoys than is practical on a towing vessel of more
than 79 feet in length, and has amended Sec. 141.360(a)(3) to clarify
the requirement by stating the minimum number of lifebuoys and their
placement independently. Also, we removed reference to primary and
alternative operating stations. Vessels with more than one operating
station will now be required to carry lifebuoys on each side of any
operating station, as practicable. We are aware that some of the
operating stations may have limited space available or may not have a
way to access the sides. In these cases, owners and operators need to
work with the local OCMI to determine an acceptable equivalent for the
operating station concerned.
As above in Sec. Sec. 141.340(c) and 141.350(a)(3), we revised the
text in Sec. 141.360(a)(4) to clarify that the option to use
alternative means to comply with the lifebuoy requirements also applies
to non-TSMS vessels and to cross reference back to Sec. 141.225.
Other commenters, including an association and an individual,
recommended that Sec. 141.360 require a specific commercially
available throwable PFD, instead of the traditional ``lifebuoy''
because lifebuoys can only be thrown a relatively short distance.
The Coast Guard has revised Sec. 141.360 to allow for throwable
devices approved under approval series 160.050 or 160.150 to satisfy
the prescriptive requirements of this section, provided that the vessel
is not subject to SOLAS. An approved lifebuoy, or another throwable PFD
approved under approval series 160.050 or 160.150 as equivalent to a
lifebuoy, would satisfy this requirement. Consistent with specifying
performance objectives when possible, rather than specifying the
behavior or manner of compliance that
[[Page 40055]]
regulated entities must adopt, we did not adopt the commenter's
suggestion that we require a specific commercially available throwable
PFD.
Regarding proposed Sec. 141.360(b), a company suggested that the
reference to release of lifebuoys in Sec. 199.70(a)(1)(v) would not be
necessary for most towing vessels, particularly those operating on
inland waters. Some commenters also felt that the wording for Sec.
141.360(b)(2) should be rewritten but did not provide suggestions.
The Coast Guard agrees that the requirements of Sec.
199.70(a)(1)(v) is not the most appropriate for towing vessels, and
further notes that the cross reference to Sec. 199.70 in Sec.
141.360(b) creates unnecessary confusion as to which requirements
apply. The Coast Guard has revised Sec. 141.360 to remove the
reference to Sec. 199.70(a) and to include only those requirements
that are intended to apply to lifebuoys on towing vessels.
Three commenters felt that Sec. 141.360(b)(2) should be amended to
clarify that floating electric water lights are not required for towing
vessels operating solely on Western Rivers.
The Coast Guard does not agree. The fitting of lights to lifebuoys
increases the likelihood that the person in the water will be located
and retrieved, irrespective of the operating area. However, under
revised Sec. 141.360(c)(2) and (3), the floating electric water light
is not required for towing vessels limited to daytime operations.
An individual indicated that the proposed rule did not clearly
state the floating electronic water light should not be attached to the
lifeline.
As noted in Sec. 141.360(c)(4), the floating electric water light
is to be secured around the body of the lifebuoy, which is consistent
with language applicable to other inspected vessels. The Coast Guard
feels that this language in Sec. 141.360(c)(4) is clear.
One commenter felt that using millimeters in proposed Sec.
141.360(b)(3) was unnecessary and could result in an inspector
rejecting a lifeline if he or she determined it is only 908 mm in
length instead of the required 910 mm. The commenter suggested that we
use meters instead of millimeters.
The Coast Guard does not agree. The millimeter equivalents to the 3
and 6 foot standards in the corresponding paragraph of this final rule,
Sec. 141.360(c)(3), are consistent with similar regulations for other
inspected vessels. See, for example, 46 CFR 117.70 and 180.70. The more
precise metric equivalent leaves less of a gap between it and the
English units. The Coast Guard does not see a compelling reason to use
a different standard for similar requirements on other types of
inspected vessels.
One commenter suggested that the number of alternative lifebuoys be
left to the OCMI to decide.
As noted above, we have reduced the number of lifebuoys below what
we proposed in the NPRM. We do not believe an appropriate level of
safety is met by further reducing that number. Under Sec. 141.225,
however, the OCMI may require additional lifebuoys as deemed necessary
based on the operating area.
Lastly, an individual asserted that in order to quickly identify
lifebuoys as safety equipment, all lifebuoys should be colored orange.
The Coast Guard believes that lifebuoys are readily recognized as
lifesaving equipment, regardless of color. However, in Sec.
141.360(b)(5) we require that lifebuoys must be orange on vessels on an
oceans or coastwise route, where visibility could be obscured by white
caps.
One commenter pointed out that proposed Sec. 141.365 includes
procedures in the TSMS for the prompt recovery of a person from the
water, and for the training of crewmembers responsible for recovery in
effectively implementing such procedures, applies only to towing
vessels under a TSMS and not to vessels that elect Coast Guard
inspection. This commenter recommends that the rule also address this
issue for towing vessel choosing the Coast Guard inspection option.
The Coast Guard does not agree with requiring these written
procedures for those vessels choosing the Coast Guard option. Vessels
choosing the Coast Guard option will be required to get underway to
conduct drills for a Coast Guard inspector and the retrieval of a man-
overboard may be required as part of these drills. Therefore, the
procedures and training will be examined through practice rather than
through audit of the SMS. However, we did find that proposed Sec.
141.365 was redundant with Sec. 138.215 and removed it from the final
rule.
We received two submissions from commenters requesting we add a
requirement for specific commercially available person-overboard
recovering equipment. One commenter said that recovery equipment to
receive unconscious personnel from water should be required.
The Coast Guard is not in the position to require carriage of a
specific commercial product. Based on these comments, however, we have
added text to Sec. 141.200 to allow a towing vessel to carry
additional lifesaving equipment in addition to that required under
subchapter M and that this excess equipment need not be Coast Guard
approved. We do not see a need to require the person-overboard
recovering equipment, in addition to the lifesaving equipment required
in this rule.
One commenter recommended a public hearing to discuss the
lifesaving equipment approval process within the Marine Safety
Directorate, and to agree on what changes can encourage innovative
lifesaving devices for commercial vessels.
This recommendation is outside of the scope of this rulemaking, as
this rule applies only to the carriage of approved lifesaving
appliances on towing vessels, and does not address the process by which
that equipment is approved. We have made no changes from the proposed
rule based on this comment.
We received several comments suggesting edits to the Miscellaneous
Lifesaving Requirements table, Table 141.370. We received two comments
from maritime companies, suggesting amendments to the table clarifying
which vessels require six flares and which require 12. One association
suggested that in order to be consistent with other table styles,
instead of the three columns for Emergency Position Indicating Radio
Beacon (EPIRB) stating ``Yes'', the columns should just indicate ``1''.
The Coast Guard agrees that our proposed Table 141.370 is
confusing. We have made appropriate revisions to the table and the
regulatory text of the first section it references, Sec. 141.375.
One commenter recommended that the table in this section include
``Rivers and Canals'' as an area of operation.
As we said in response to the same comment regarding Table 141.305,
the definition of ``rivers'' in Sec. 136.110, which applies to the
term used throughout subchapter M, includes canals. We have made no
changes from the proposed rule based on this comment.
Several commenters suggested that ``excepted towing vessels''
operating solely on Rivers or Western Rivers be exempt from carrying
distress signals. We received several comments, mainly from individuals
and maritime companies, who felt that the visual distress signals
should not apply to Western Rivers or inland river systems. Another
commenter felt that flares and smoke signals required in proposed Sec.
141.375(b) were not needed for vessels operating on rivers one mile
wide. A maritime company disagreed with the requirement for single
flares on harbor and fleeting tugs.
[[Page 40056]]
The Coast Guard does not agree. The carriage, proper stowage,
training, and use of visual distress signals influence survivability of
the crew in the event of an emergency that would require evacuation. As
we noted above, time to rescue is influenced by the ability to detect
persons in distress. If there is insufficient evidence that crewmembers
are in trouble, it is less likely they will receive the assistance they
need.
One commenter felt that phrases such as, ``approved under 46 CFR
subpart 160.021 or other standard specified by the Coast Guard'' is
vague and should instead reference approval series found in 46 CFR
199.30.
The Coast Guard agrees and has revised the regulatory text in part
141 to specify the approval series applicable to all lifesaving
equipment required to be approved. The Coast Guard believes that
specifying the appropriate approval series assists the vessel owners
and managing operators in determining whether specific equipment is
approved for a particular application.
We received several comments, particularly from maritime companies,
suggesting the deletion of Sec. 141.380(c), which requires
identification markings on each EPIRB.
The Coast Guard does not agree. When we find an unattended EPIRB,
it is important that we know what vessel it came from, so that we can
mount a more focused and effective rescue response.
One company requested an exception from the EPIRB requirement for
vessels operating within coastal bays or sounds that may occasionally
operate at greater than 3 miles from shore.
In Sec. 141.380, we did propose to require EPIRBs on vessels
operating upon the Great Lakes beyond 3 nautical miles from shore but
not on vessels operating on lakes, bays, and sounds. The Coast Guard
acknowledges the conflict between Sec. 141.380 and Table 141.370, and
has made the appropriate revisions to the table to exclude vessels on
lakes, bays, and sounds from the EPIRB requirement.
One commenter stated that the requirement for EPIRBs does not
mention requirements for hydrostatic release.
We note that Sec. 141.380(b) requires that the EPIRB be mounted
such that it will float free if the vessel sinks. Hydrostatic release
is one of several methods for meeting this requirement. We made no
changes from the proposed rule based on this comment.
One commenter suggested that Sec. 141.380(a) be consistent with
NTSB Recommendations M-10-1 and suggested that each EPIRB installed
after the effective date of these rules should be a type which includes
a satellite position in its distress alert.
The Coast Guard recognizes the merit of enhanced locating devices,
but the benefit of adding enhanced GPS locating functionality to an
EPIRB does not outweigh the costs associated with making it mandatory
for all towing vessels, particularly before it is mandatory for other
types of inspected vessels. Though the Coast Guard may consider this
matter holistically in the future, we have not made changes to the
proposed rule based on this comment. However, this does not preclude a
vessel operator from optionally carrying such equipment.
We received comments from three maritime companies that felt that
because a tug is able to retrieve a barge without boarding, and because
boarding a drifting barge is dangerous, the line throwing requirement
in Sec. 141.385 is not needed.
The Coast Guard notes that the line-throwing appliance was only
proposed to be carried on towing vessels operating on ocean routes, and
is not necessarily intended for boarding a drifting barge. The line-
throwing appliance can be used to pass a line to another vessel if the
towing vessel is incapacitated and needs to be towed.
One association suggested broadening the line throwing apparatus
requirement to include towing vessels in coastwise service that operate
beyond the boundary line.
The Coast Guard agrees that vessels in coastwise service will be
subject to similar conditions, and have expanded this requirement to
include them, consistent with other inspected vessels (see 46 CFR
199.170 and 199.610). We have amended Sec. 141.385 accordingly.
L. Fire Protection (Part 142)
The fire protection standards proposed in Part 142 retained most of
the fire protection regulations that currently apply to towing vessels
and are contained in 46 CFR parts 25 and 27. The public comments
received in response to proposed part 142 provided a number of
suggestions aimed at improving the clarity of the requirements based on
several years of operating experience with the current regulations. We
have incorporated many of these suggestions in an effort to make part
142 more user-friendly, and made additional editorial revisions to
improve clarity and readability. We also received some comments
critical of specific provisions in the NPRM. Most notable are
objections to the requirements for flammable liquid storage cabinets on
inland towing vessels, the use of portable fire pumps, the requirements
for a professional engineer (P.E.) to certify fire detection systems,
and any requirements relating to onboard fire-fighting. Each of these
comments is discussed in greater detail in the following item-by-item
responses.
In general, the nature of the public comments made it clear to us
that the organization of part 142 was confusing and could be greatly
improved by placing in subpart B all of the general requirements that
are applicable to all towing vessels--such as equipment approvals, fire
hazards to be minimized, storage of flammable liquids, portable fire
extinguishers, firefighter's outfits, fire axes, and maintenance and
training--and placing in subpart C the specific requirements for fire-
extinguishing and fire detection systems applicable only to certain
vessels. Accordingly, we reorganized part 142 by deleting redundant
requirements for fixed fire-extinguishing systems in proposed Sec.
142.235, and moving the requirements for portable fire extinguishers
from proposed Sec. 142.305 to Sec. 142.230(d), the requirements for
firefighter's outfits from proposed Sec. 142.350 to a new Sec.
142.226, and the requirements for fire axes from proposed Sec. 142.350
to a new Sec. 142.227, but we did not change any requirements, except
in response to public comments as discussed in the following
paragraphs. Section 142.235 in this final rule now contains
requirements for vessels contracted for prior to November 19, 1952.
With respect to proposed Sec. 142.105 on applicability, one
commenter requested that we add text to indicate that vessels exempted
from 46 CFR part 27--which currently applies to most towing vessels
that will become subject to subchapter M requirements--need not comply
with part 142. We partially agree with this commenter. In Sec.
142.300, we have established that excepted vessels need not comply with
the provisions of subpart C regarding fixed fire-extinguishing
equipment; our definition of ``excepted vessels'' in Sec. 136.110
includes many of the vessels excluded from part 27 applicability by
Sec. 27.100(b).
But, we do not agree that these vessels should be exempt from the
general fire safety provisions in subparts A and B. These requirements
implement minimum standards for portable fire extinguishers and control
of combustible materials, which we believe are essential on board all
vessels. Accordingly, we did not adopt the broad exemption recommended
by the commenter.
[[Page 40057]]
We revised Sec. 141.205(a) to include a reference to SOLAS Chapter
II-2 as this is where specific fire protection requirements are
contained.
With respect to Sec. 142.215, one commenter suggested that the
installation of excess fire-fighting and fire detection equipment on a
vessel must be designed, constructed, installed and maintained in
accordance with recognized industry standards acceptable to the Coast
Guard. We agree with this comment and have added a paragraph (c) to
this section to address equipment that is installed but not required by
this subpart. Because there may be existing vessels affected by this,
we have included provisions that allow the local OCMI to accept
existing equipment of any design as long as it is determined to be in
serviceable condition. Additionally, we have clarified the wording
regarding approved equipment in order to standardize this language
throughout the subchapter.
Several commenters expressed concern that the proposed requirements
in Sec. 142.220 appeared to prohibit the presence of any combustible
and flammable liquids in the bilges at any time. They noted that the
accumulation of some amounts of combustible and flammable liquids in
the bilges is unavoidable during normal operations, and requested
changes to this section. We agree that small amounts of such liquids
are likely to be present; however, we also want to clearly express our
concerns over the accumulation of considerable quantities of liquids
that could be a fire hazard. We therefore modified the text of Sec.
142.220(a) to indicate that the bilges should be kept as clear as
practical.
Another commenter felt that the proposed requirements in proposed
Sec. 142.220(c) (now Sec. 144.415) for the insulation of exhaust
pipes and galley cooking equipment exhaust ducts should apply only to
new vessels because it would be difficult to retrofit existing vessels,
and the risk does not warrant added protection. We do not agree with
this commenter, and have not changed the requirement. There have been
recent exhaust system fires (discussed in our Safety Alert 05-08, dated
September 17, 2008) in which the cause was attributed to the
installation of new diesel engines that run at hotter temperatures than
previous models. We believe that the potential fire risk is the same on
both new and existing vessels. However, to alleviate concerns about
installing insulation on the exhaust systems of existing vessels, we
have added to Sec. 144.415 two alternate methods of demonstrating
compliance. The revised requirement would accept exhaust systems
designed to either Standard P-1 of the American Boat and Yacht Council
(ABYC) or Standard 302 of the National Fire Protection Association
(NFPA) as equivalent forms of protection. These additional means of
protection will provide operators of existing vessels a wider range of
choices to comply with the rule. As noted above, proposed Sec.
142.220(c) was moved to Sec. 144.415 as this requirement is more
closely related to part 144.
We received several comments objecting to requirements in Sec.
142.225 for approved flammable liquids storage cabinets on boats
operating on the Western rivers. These commenters appear to have
misinterpreted the proposed rule. We proposed that combustible and
flammable liquids be stored in a controlled area, either a specific
room or a dedicated storage cabinet. An approved storage cabinet is an
option and not a required piece of equipment. Related to this, one
commenter recommended that we also accept flammable liquid storage
cabinets that are Factory Mutual approved. We agree with the commenter
that Factory Mutual cabinets provide an equivalent level of safety as
those approved to UL 1275, a voluntary consensus standard used in the
NPRM and this final rule, and have added a new Sec. 142.225(c)(2) to
accept their use. Another commenter felt that securing the cabinets to
the vessel should not be required on the Western Rivers, but offered no
justification for the comment. We acknowledge that vessels operating on
the river system are subject to less significant wind and wave motions
than are experienced by ocean-going vessels, but do not agree with the
commenter that flammable liquid storage cabinets should be unsecured.
Any sudden acceleration or movement of the vessel could dislodge the
cabinet, causing a flammable liquid spill potentially leading to a
fire. We have not made any changes as a result of this comment.
Finally, we received one comment suggesting that Sec. 142.225
should contain information on the storage of hazardous material in
ships' stores. We believe these materials are adequately covered by
regulations in 46 CFR part 147, which apply to towing and other vessels
subject to inspection under 46 U.S.C. 3301, and need not be repeated
here.
In Sec. 142.226 (proposed Sec. 142.345), and throughout this
part, we changed all references from fireman to firefighter. We also
removed the reference to the Mine Safety and Health Administration
because this agency no longer approves self-contained breathing
apparatus for normal use. A variety of comments were submitted
regarding the proposed requirements for the carriage of firefighter's
outfits covered by proposed Sec. 142.345 (now Sec. 142.226 as noted
above). One commenter recommended that the proposed standards should be
enhanced by listing the specific equipment required for each
firefighter's outfit. Others recommended that the requirements for the
carriage of firefighter's outfits should be deleted in their entirety,
since in their opinion it is too dangerous for crewmembers to enter a
burning engine room, and would be better advised to abandon ship in the
event of a serious fire.
We have not removed the requirements for firefighter's outfits. We
proposed firefighter's outfits for a limited class of vessels. Only
vessels of 79 feet or more, operating on ocean or coastwise routes,
that do not have a fixed fire suppression system in the engine room are
required to carry firefighter's outfits. These vessels are primarily
existing vessels that were contracted for prior to August 27, 2003. The
Coast Guard believes that these vessels, which operate on the open
ocean should have enhanced fire-fighting equipment because timely
outside assistance is unlikely, and in the event of an engine room fire
the crew must be able to provide onboard response. Vessel operators
that believe that fire-fighting poses an unacceptable risk to the crew
have the option of installing a fixed fire-extinguishing system in the
engine room.
One commenter requested changes to Sec. 142.230 that would allow
two size B-III semi-portable fire extinguishers on smaller vessels to
substitute for the required B-V extinguisher, which in their opinion,
is difficult to handle due to its size. We do not agree with this
comment. As noted in the 2004 Fire-Suppression Systems and Voyage
Planning for Towing Vessels final rule (69 FR 34064, June 18, 2004),
the severity of an engine-room fire is not related to the length of the
vessel, but to the fire hazard present in the engine room. The use of
marine diesel fuel oil poses a sufficient hazard to warrant the higher
fire-suppression capability of a size B-V extinguisher. However, we are
concerned that some operators may be installing semi-portable
extinguishers that are fitted with wheels. These types of extinguishers
are intended for use in shore-side applications and, if used on board
vessels, they need to be secured to prevent possible injury to the
crew. We have consequently added a supplemental provision to Sec.
142.230(e) that requires that any extinguishers fitted with wheels must
be welded or otherwise secured to the vessel.
[[Page 40058]]
Another commenter noted that because the NPRM splits discussion of
the fire extinguisher requirements between Sec. 142.230 and proposed
Sec. 142.305, it was difficult to determine what is actually required;
the commenter requested a single chart with all of the fire
extinguisher requirements in one location. We agree with this commenter
and have relocated all of the portable hand-held fire extinguisher
requirements to Sec. 142.230(d) and deleted proposed Sec. 142.305.
The proposed text in Sec. 142.230(d) relating to extinguisher labeling
and nameplates has also been deleted, since this is an approval
requirement covered by 46 CFR 162.028-3(f) and 162.028-4, and is not
appropriate for inclusion here. Requirements for semi-portable B-V fire
extinguishers remain in Sec. 142.315.
As previously noted in the general discussion of Part 142, we have
deleted the content of proposed Sec. 142.235 because it contained a
superfluous requirement that fixed fire-extinguishing systems must be
approved by the Commandant, which is already required by Sec.
142.215(a). We also deleted the requirement that carbon dioxide systems
must be designed in accordance with 46 CFR part 76, subpart 76.15,
because this is covered in the definition of ``fixed fire-extinguishing
system'' in Sec. 136.110.
One commenter suggested that all new installations of fixed fire-
extinguishing systems should be required to undergo plan approval by
the Coast Guard prior to installation. We do not agree with this
comment and have not changed the proposed rule to require plan approval
by the Coast Guard. We believe requirements in Sec. 144.135 are
sufficient. That section requires verification of compliance with
construction and design standards before a new installation that is not
a replacement in kind may be installed. We changed the inspection and
testing criteria in Table 142.240 to harmonize this regulation with the
Carbon Dioxide Fire Suppression Systems on Commercial Vessels final
rule (77 FR 33860, June 7, 2012), a separate rule related to fire
suppression systems on commercial vessels that was published after we
published our NPRM. We made reference to that ongoing rulemaking and
its potential impact on this rule in our NPRM. See 76 FR 49985, Aug.
11, 2011. The Carbon Dioxide Fire Suppression rule revised the vessel
regulations to require lock-out valves and odorizing units on all new
carbon dioxide extinguishing systems installed or materially altered
after July 9, 2013. That rulemaking also changed each of the vessel
subchapters to allow the use of clean agent fire-extinguishing systems
as an alternative to carbon dioxide systems. Because of this, it was
necessary to change the inspection and testing requirements for fire-
extinguishing systems in Table 142.240 to include criteria for the
inspection and testing of the new clean agents. We have also slightly
modified the definition of ``fixed fire-extinguishing system'' in Sec.
136.110 to comport with the revised definition in new 46 CFR 27.101.
Additionally, we changed ``maintain'' to ``test and inspect'' in
the water mist ``test'' field in Table 142.240, to more accurately
reflect the intent of this requirement.
Several comments related to the proposed regulatory text in Sec.
142.240 revealed that this section was confusing and did not clearly
convey our intended requirements. During our further review of proposed
Sec. 142.240 we noted that the NPRM used inconsistent wording and
tended to use the terms ``examination,'' ``test,'' and ``maintenance''
interchangeably, which contributed to the confusion. We have,
therefore, revised the text and format of this section to improve its
clarity and consistency. All testing and inspection requirements are
stated in paragraph (a), all maintenance requirements are in paragraph
(b), and requirements for recordkeeping are in paragraph (c). We have
also replaced the word ``examination'' with ``inspection'' to be
consistent with other Coast Guard regulations.
We received numerous comments requesting that the proposed text of
this section be modified to require fire suppression and fire detection
systems be inspected or tested annually or in accordance with the TSMS
applicable to the vessel. We agree with this view and have changed
Sec. 142.240(a) to require inspection or testing at least every 12
months--as we proposed in Sec. 142.240(c)--or more frequently, if
required by the vessel's TSMS.
Several comments also proposed that the TSMS should be the
exclusive form of recordkeeping for test and inspection results. We do
not agree with this comment. For flexibility, we have proposed that the
records may be kept in accordance with an applicable TSMS, the TVR, or
the vessel's logbook, whichever applies. We have also added new
provisions in Sec. 142.240(c)(2) to accept service tags attached to
portable and semi-portable extinguishers by a qualified servicing
organization as an acceptable record that demonstrates the required
tests and inspections have been completed.
One commenter requested that we replace the phrase ``dampers'' in
proposed Sec. 142.240(c), now Sec. 142.240(a), with ``fire dampers.''
It was not our intent to require the testing of fusible-link fire
dampers. The proposed requirement was directed at pressure-operated
dampers installed in engine room ventilation ducts. These dampers are
automatically operated by the engine room fire-extinguishing system,
and must close prior to system discharge to prevent the leakage and
dilution of the fire-extinguishing agent. To clarify what dampers we
intended to be tested, we have changed ``dampers'' to ``fixed fire-
extinguishing system pressure-operated dampers.'' We have also added
this phrase to Sec. 142.240(a)(5) to clarify that these dampers must
be tested as part of the fire-extinguishing system inspection
procedures.
One commenter requested a modification to the carbon dioxide
cylinder tests required by Table 142.240 that would remove the
requirement to weigh the cylinders, and in its place permit the use of
liquid level indicators. We do not agree with this requested
modification. The Coast Guard has historically required that carbon
dioxide cylinders must be weighed to determine the amount of
extinguishing agent (see, e.g., 46 CFR 91.25-20(a)(2) and related
table), because weighing is the only reliable method to check the
quantity of carbon dioxide in the cylinders that the Coast Guard
recognizes. Liquid level measuring systems use various types of sensing
elements that show the location of the liquid/gas interface within the
cylinder. With that knowledge, a technician is able to calculate the
quantity of agent. We have no objection to the use of liquid level
indicators for checking the quantity of halocarbon clean agents,
because a liquid/gas interface can be easily determined. This is not
the case with carbon dioxide, however, which has a critical temperature
of 87.8 degrees Fahrenheit. Below the critical temperature, carbon
dioxide in a closed container may be part liquid and part gas. Above
the critical temperature it is entirely gas, making the use of such
measuring devices impractical.
One commenter requested that we change Sec. 142.245 to require all
records of training and drills to be kept in the TVR. We do not agree
and have made no changes from the proposed rule based on this comment.
For flexibility, we have permitted several acceptable recordkeeping
methods, in accordance with part 140 of this subchapter.
One commenter questioned the intended extent of the fire detection
and alarm system testing during drills required by proposed Sec.
142.245(c)(3). As proposed, the commenter noted, each
[[Page 40059]]
drill could be understood to require a complete test of the system.
This is not our intent. We anticipate that during drills, only the test
switch or a single detector needs to be activated to familiarize the
crew with the system's operation, and have changed the text of Sec.
142.245(c)(3) to require that only one device needs to be tested.
One commenter requested that the proposed requirements in this
section for training crews to respond to fires should be removed from
the rule, as the limited scope of the training would not afford crew
members with the necessary skills and knowledge to safely engage in
fire-fighting activities. The commenter anticipated that this may
result in a false sense of security, leading to injuries for
crewmembers attempting to fight engine room fires. Further supporting
this argument, it was suggested that the typical practice on inland
towing vessels in response to a fire is to attempt ``first-aid''
firefighting using portable extinguishers or fire hoses. If this fails
to contain the fire, the crew would abandon ship to the tow or the
riverbank.
Another commenter requested that we strengthen the training
requirements by mandating that all licensed officers, apprentice mates,
steersmen, and engineers complete formal fire-fighting training
courses.
We considered comments on these same issues in a previous
rulemaking, the Fire-Suppression Systems and Voyage Planning for Towing
Vessels interim rule (68 FR 22607, April 29, 2003), and believed at
that time that the level of training proposed in our Inspection of
Towing Vessels NPRM would provide crew members with adequate knowledge
of the procedures and equipment on board their vessels needed to
respond to fires; we have not changed our opinion on this issue based
on these comments on Sec. 142.245. In support of our previous
rulemaking, TSAC had performed an independent analysis of our casualty
data, which showed that over 80 percent of the reported fires on inland
vessels had been extinguished by the crewmembers with only seven
reported injuries. (See USCG-2000-6931-0046, available on
www.regulations.gov). Further review of the Coast Guard casualty
reports on the vessels where injuries were reported revealed that most
of the seven injuries were the result of conditions in the engine room
(e.g., burns from the fire outbreak) and were not attributable to fire-
fighting efforts.
As previously discussed, in order to make this regulation more
user-friendly, we have made various editorial changes here such as
moving the portable fire extinguisher requirements previously proposed
in Sec. 142.305 to Sec. 142.230(d). We also revised the section
heading of Sec. 142.315 to ``Additional fire-extinguishing equipment
requirements,'' and amended that entire section to make clear which
provisions did not apply to certain towing vessels. In order to account
for those vessels operating within 3 nautical miles from shore on the
Great Lakes, we revised paragraph (a)(1) of Sec. 142.315. These
revisions did not change any substantive requirements proposed in the
NPRM.
We received numerous comments requesting that we modify proposed
Sec. 142.325(c) to clarify that sufficient hydrants and hoses must be
provided to allow ``a stream of water from'' a single length of hose to
reach any part of the machinery space. We concur with these comments
and have changed the text accordingly. Associated with this were
several comments that the requirement for a single length of hose
should be deleted. We do not concur with this, because the single, 15-
meter-length-of-hose requirement ensures that a sufficient number of
fire hydrants with attached hoses are installed in or close to the
engine room. If the fire-fighting water could be provided by multiple
sections of hose linked together, (i.e., a segmented hose of unlimited
length) a single remote hydrant might satisfy the rule, but the length
of hose required would either be too cumbersome to handle in an
emergency, not provide the necessary amount of firefighting water due
to friction loss, or both.
One commenter urged us to add a new Sec. 142.325(g) requiring a
minimum fuel supply stowed onboard to enable 4 hours of operation of
the portable fire pump. We do not agree with this suggestion. Paragraph
(b) of 46 CFR 27.211 prohibits the carriage of portable fuel tanks and
related hardware except when used for outboard engines or when
permanently attached to portable equipment such as fire pumps. Most
commercially available portable fire pumps have a fuel tank capable of
operating the pump for at least 1 hour. The carriage of supplemental
fuel supplies to allow 4 hours of operation would conflict with the
provisions of 46 CFR 27.211(b).
Another commenter requested that we remove the requirement for a
``self-priming'' portable fire pump and require, as an alternative,
that a minimum time period be specified during which the crew must be
able to demonstrate that their portable pump can be deployed. We do not
agree with this comment and have not removed the requirement for self-
priming pumps, as non-self-priming pumps are extremely difficult to
successfully operate under emergency conditions.
A third commenter noted that in his experience, many crews have
difficulties getting the self-priming feature of portable fire pumps to
function. We believe this commenter raises a valid point, and have
added a new paragraph (c)(5) to Sec. 142.245 to require regular
training on the self-priming feature during fire drills to ensure crew
familiarity its operation, on vessels equipped with portable pumps.
Another commenter requested that we not accept the use of portable
pumps at all, as they are not comparable to fixed fire main systems,
and the amount of time it takes to assemble and deploy the pump in
darkness or rough weather could compromise mariner safety. We do not
concur with this comment because portable pumps were previously allowed
for uninspected towing vessels and we do not have data supporting the
removal of the option of using cost-effective portable fire pumps.
Operators with vessels on routes or in services where the ability to
deploy and operate portable pumps could be difficult may choose to
install a fixed fire main system as an option.
One commenter recommended that we specify the type of fire hoses
required by this section, and urged that we adopt UL 19 as the required
standard. We believe that the existing requirement for lined commercial
fire hose provides suitable fire-fighting equipment for this purpose.
Firehose meeting UL 19 is constructed to a higher standard that would
impose unnecessary costs on the industry.
One commenter suggested that Sec. 142.325 require a dedicated sea-
chest for the installed fire main. We do not agree with this comment,
because a dedicated sea-chest would likely be used only during drills
and in emergencies. If the fire main system is connected to a sea-chest
that is regularly used for shipboard services, there is a greater
chance that it will be clear of debris or fouling when needed.
During our review of the public comments on Sec. 142.330, we noted
that the proposed introductory paragraph of this section was confusing
in regard to the fire detection system requirements for towing vessels
constructed on or after January 18, 2000. We have clarified and
improved the structure of this section by addressing vessels whose
construction was contracted for prior to January 18, 2000, separately
in paragraph Sec. 142.330(a)(8).
One commenter requested clarification as to whether the audible and
visual alarms at the operating station required by proposed
[[Page 40060]]
Sec. 142.330(c) must be integral to the fire alarm control panel. The
Coast Guard's response is that the operating station must have a fire
detection control panel installed within the space. However, in the
years since the Fire-Suppression Systems and Voyage Planning for Towing
Vessels final rule was published (69 FR 34064, June 18, 2004) and
incorporated into existing 46 CFR subchapter C regulations, we have
become aware that there may be cases where this is a problem on towing
vessels with more than one operating station because the fire detection
system control panel is not installed at each operating station. We did
not intend to impose an undue economic burden on vessels of this design
type by requiring fire detection control panels at each operating
station. Rather, one operating station must be outfitted with the fire
detection control panel while any others could be outfitted with either
fire detection control panels or a remote indicator with audible and
visual alarms. We amended the regulatory text of this section to
reflect this intent (see new Sec. 142.330(a)(3)).
Another commenter requested that we remove reference to a circuit-
fault detector test-switch in Sec. 142.330(a)(4)(v) because currently
available fire alarm control panels use internal supervision instead of
a test switch to verify circuit integrity. We agree with this comment
and have changed this paragraph to accept control panels with internal
circuit supervision as equivalent to those having a test switch. We
have elected to retain a reference to panels with a test switch to
allow flexibility in meeting this provision.
Various commenters suggested that proposed Sec. 142.330(g), which
we redesignated as Sec. 142.330(a)(7) in the final rule, should be
amended to allow certification of fire detection systems by the
National Institute for Certification in Engineering Technologies
(NICET) Level IV technicians in addition to registered P.E.s. We concur
with this view and have changed the text of Sec. 142.330(a)(7)
accordingly. Level IV technicians are required to have at least 10
years' experience in fire alarm installation and testing and must pass
a comprehensive written exam to demonstrate their knowledge. Other
commenters requested that we add a qualifying statement to the
requirement for a P.E., to ensure that the engineer is qualified to
review and certify fire detection systems. We agree and have changed
Sec. 142.330(a)(7) to require that any P.E.s or authorized
classification society reviewing the system have experience in fire
detection system design. It is important to note that all required fire
detection systems must be certified and inspected by a P.E., a NICET
Level IV Technician, or an authorized classification society including
those on vessels that elect or are subject to the Coast Guard
traditional inspection scheme under Sec. 137.200. When the Coast Guard
inspects the vessel, it will look for evidence that the vessel owner or
managing operator has had all required fire detection systems on the
vessel certified and inspected by a P.E., a NICET Level IV Technician,
or an authorized classification society. We also edited Sec.
142.330(a)(7) to clearly require the system and its installation to be
both certified and inspected.
One commenter requested clarification of proposed Sec. 142.330(g),
specifically, whether the certifying engineer or technician must review
only the detection system equipment and layout drawings, or whether it
is necessary to inspect the installation of the fire detection system
on board the vessel. We clarified the language in Sec. 142.330, and
specify that the fire detection system must be both: Certified by a
P.E., NICET technician, or an authorized classification society
surveyor to comply with paragraphs (a)(1) through (7) of Sec. 142.330;
and inspected by a Coast Guard marine inspector or a TPO surveyor,
depending upon which inspection regime applies to the vessel, to comply
with Sec. 142.330(a)(2). This last reference requires the system to be
installed, tested and maintained in accordance with the manufacturer's
design manual.
We have substituted the term independent testing laboratory in
Sec. 142.330(a)(1) and (8) with Nationally Recognized Testing
Laboratory (NRTL) as defined in 29 CFR 1910.7. The proposed term
independent testing laboratory is ambiguous and will be replaced with
NRTL throughout title 46 CFR upon the finalization of a concurrent
regulatory project (see the Harmonization of Standards for Fire
Protection, Detection, and Extinguishing Equipment notice of proposed
rulemaking (79 FR 2254, January 13, 2014)).
Please note that we have redesignated Sec. 142.335, Smoke alarms
in berthing spaces, and Sec. 142.340, Heat detector in galley as Sec.
142.330(b) and (c), respectively, in the final rule. Multiple
commenters urged us to remove from proposed Sec. 142.335 (now Sec.
142.330(b)) any requirements for battery operated smoke detectors in
berthing spaces, and instead require smoke detectors that are part of
an installed fixed fire-detection system. We do not concur with this
suggestion. Battery-operated smoke detectors are not required, but
detectors that meet UL 217 may be used as an alternative to satisfy the
requirements in new Sec. 142.330(b). We have retained this option in
the final rule because it offers a low cost alternative to installing a
fixed detection system in these areas.
A commenter requested changing proposed Sec. 142.340 regarding a
heat detector in the galley to require only heat detectors that comply
with UL 521. We have not specified a specific performance standard for
the required heat detectors; however, we agree with the commenter that
only restorable heat sensing type detectors may be used (i.e.,
detectors that automatically reset to operating condition when the heat
source is removed), and have changed the requirements in redesignated
Sec. 142.330(c) accordingly.
In the NPRM we discussed comments submitted in response to seven
questions we posed in a December 30, 2004, Inspection of Towing Vessels
notice. In response to that portion of the NPRM, one of these
commenters recommended applying grandfathering to structural fire-
protection requirements. The commenter also felt that existing vessels
should be treated differently from newly constructed vessels because of
the likelihood that fire standards will make it difficult to retrofit
existing vessels. We have made no changes to the final rule in response
to this comment. The fire protection standards proposed in this part
retain most of the fire protection regulations that currently apply to
existing towing vessels and are contained in Title 46 CFR parts 25 and
27. Only three new requirements have been added. Section 142.227
requires all vessels to have a fire axe, Sec. 142.330(b) (proposed
Sec. 142.335) requires smoke detectors in berthing areas, and Sec.
142.226 (proposed Sec. 142.345) requires firefighter's outfits on
certain ocean-going vessels. Battery-operated smoke detectors will be
permitted, and the addition of fire axes and firefighter's outfits does
not require any modifications to the vessel; therefore, we do not agree
that either requirement would be difficult to implement onboard
existing vessels.
M. Machinery and Electrical (Part 143)
In this final rule, we made substantive changes in response to
specific comments on the NPRM, and we also made significant
organizational changes. Because of the organizational changes, subpart
headings and section numbers in this part no longer correspond to those
used in the NPRM. Much of the content of proposed part 143 has been
removed or reordered, and several provisions have been changed to apply
to new vessels only. The requirements
[[Page 40061]]
of proposed subpart C, deferred requirements for existing vessels, and
proposed subpart D, for oil and hazardous material in bulk, have been
divided among the other subparts. This derivation table lists part 143
section numbers in this final rule and the corresponding part 143
section from the NPRM:
Table 1--Derivation of Sections of Part 143 From the NPRM
------------------------------------------------------------------------
Final rule section No. NPRM section No.(s)
------------------------------------------------------------------------
143.100................................... 143.110.
143.105................................... 143.105.
143.115................................... 143.115.
143.200................................... 143.200, 143.325, 143.330,
143.335.
143.205................................... 143.220.
143.210................................... 143.110, 143.215.
143.215................................... 143.210.
143.220................................... 143.235.
143.225................................... 143.240.
143.230................................... 143.245.
143.235................................... 143.250.
143.240................................... 143.330.
143.245................................... 143.260.
143.250................................... 143.270.
143.255................................... 143.275.
143.260................................... 143.280.
143.265................................... 143.285.
143.270................................... 143.290.
143.275................................... 143.295.
143.300................................... 143.320, 143.520, 143.525.
143.400................................... 143.300.
143.410................................... 143.310.
143.415................................... 143.315.
143.450................................... 143.210, 143.325, 143.515,
143.520.
143.460................................... 143.330.
143.500................................... 143.500, 143.505.
143.505................................... 143.505.
143.510................................... 143.510.
143.515................................... 143.515.
143.520................................... 143.520.
143.540................................... 143.535.
143.545................................... 143.540.
143.550................................... 143.545.
143.555................................... 143.340.
143.560................................... 143.345.
143.565................................... 143.350.
143.570................................... 143.355.
143.575................................... 143.360.
143.580................................... 143.550.
143.585................................... 143.405.
143.590................................... 143.410.
143.595................................... 143.420.
143.600................................... 143.430.
143.605................................... 143.435.
------------------------------------------------------------------------
In several provisions in the NPRM, we offered two different options
for complying with design or operational standards in certain areas.
These sections were divided up into ``functional requirements'' and
``prescriptive options'' for complying with the functional
requirements. The prescriptive options represented one way to comply
with the functional requirements, but an owner or managing operator
could choose another way to comply so long as the alternative method
was approved by the OCMI or an approved third party. On further
consideration, we have consolidated the functional requirements with
other language about when and how exceptions from the baseline standard
may be granted (see Sec. 143.210).
Changes to Subpart A, ``General''
The applicability of the subparts within this part has changed. The
specific changes are discussed elsewhere in this preamble, but we have
revised the discussion of applicability in subpart A to provide an
overview of the entire part for readers. Most notably, subpart A now
specifies that existing vessels (which includes those vessels already
under construction that do not meet our definition of ``new towing
vessel''), have 2 years to comply with the rule; for certain listed
provisions, the delay is longer. Additionally, because the structure of
part 143 has changed, new vessels must comply with subparts B and C of
part 143 except as noted in specific sections in subpart C instead of
the proposed subpart E. Under our ``new towing vessel'' definition, no
vessel would be subject to new vessel requirements until at least July
20, 2017.
Because of the additional discussion of the applicability of each
subpart and the changes to the discussion of functional requirements
with prescriptive options for compliance, we removed proposed Sec.
143.110. The content specific to OCMI or third-party acceptance of
alternative methods is relocated to Sec. 143.210 and consolidated.
However, we will address here the comments received on proposed Sec.
143.110. One commenter suggested adding the word ``company'' to the
entities named in Sec. 143.110(c) on alternatives to the prescriptive
option. The Coast Guard declines to make this change, because an
``owner or managing operator'' may be a company. Another commenter
suggested replacing OCMI or third-party acceptance with a TSMS accepted
by the third party. This change would remove the option of OCMI
acceptance and would not be appropriate for vessels not covered by a
TSMS, so the Coast Guard declines to make the change.
As previously discussed in this preamble, we relocated the
definition of ``independent'' to part 143 in response to a comment
pointing out that the definition was specific to vessel arrangements
described in this part.
Several commenters noted that that the phrase ``replacement in
kind'' should not be construed too narrowly, so as to avoid subjecting
existing towing vessels to unnecessary additional requirements. One
commenter suggested that where a piece of equipment such as a generator
is replaced with another that has the same function and similar
characteristics but is not the exact same model, such replacement
should be considered ``replacement in kind.'' Another commenter
suggested that proposed Sec. 143.220 (now incorporated into Sec.
143.205) would prevent vessels from upgrading to more efficient
equipment.
We added a definition of ``replacement in kind'' to Sec. 136.110
in response to numerous comments requesting clarification of this term,
which is used in parts 143 and 144. When equipment needs to be
replaced, it may be replaced by the same or similar equipment, or it
may be upgraded. It is certainly acceptable to upgrade, but an upgrade
is not considered a replacement in kind because the maintenance and
operation of the new equipment may require operator training, new
maintenance schedules, OCMI approval of equipment arrangement, and an
update to the vessel's TSMS.
Finally, the Coast Guard removed the list of material incorporated
by reference specifically for part 143 (proposed Sec. 143.120) and
moved that content to a consolidated list for the entire subchapter at
Sec. 136.112. The Coast Guard received one comment on the
incorporation of standards by reference in part 143; the comment
appeared to indicate that new incorporations are not necessary because
there are existing, currently applicable standards elsewhere in title
46. The standards incorporated in part 143 are necessary because towing
vessels represent a unique class of vessel design, and other standards
incorporated in various CFR sections are not currently applicable to
towing vessels. The engineering standards incorporated in subchapters
F, J, and Q, for instance, are generally applicable to much larger
ships with different risk profiles, such as passenger ships or large
tank vessels.
Changes to Subpart B, ``Requirements for All Towing Vessels''
The organization of subpart B remains largely the same as in the
NPRM, although the section numbers have changed. We removed proposed
Sec. 143.230, ``Guards for exposed hazards,'' as it was duplicative of
proposed Sec. 144.345. For more on this, see discussion of changes to
part 144 below. We also added two sections from proposed subpart C--
pilothouse alerter
[[Page 40062]]
systems and towing machinery--which have delayed application dates for
existing vessels. An existing vessel must comply not later than 5 years
after the issuance of the first COI for the vessel. This delayed
compliance date is reflected in Sec. 143.200(c) and is the same length
of time as was proposed in the NPRM at proposed Sec. 143.320. The
details of these requirements, and other changes to proposed subpart C,
are discussed later in this preamble.
General
We redesignated proposed Sec. 143.220 as Sec. 143.205. The Coast
Guard received a suggestion that we insert the phrase ``in accordance
with their responsibilities'' in proposed Sec. 143.220(b). The Coast
Guard agrees with the general approach and has revised the paragraph to
clarify that crewmembers must demonstrate ability to operate the
machinery and electrical systems for which they are responsible.
Another commenter suggested changing the requirements in proposed
Sec. 143.220(c)(3) to apply to all control stations (operating
stations) instead of just the primary one. The Coast Guard agrees and
has removed the word ``primary'' from this requirement. The Coast Guard
understands that certain vessels have more than one operating station;
in such cases, each operating station would need to comply with revised
and redesignated Sec. 143.205(c)(3).
One commenter suggested that the Coast Guard insert the phrase
``with respect to the installation in question'' in the sentence in
proposed Sec. 143.220(d) that requires installations to comply with
subpart C for new vessels if the installation is made after this rule
becomes effective and is not a replacement in kind on an existing
towing vessel. The Coast Guard declines to make that change because the
original language was unambiguous and the addition unnecessary.
Another commenter asked the Coast Guard to change proposed Sec.
143.220 to ``clarify that replacements mandated by regulation will not
trigger the referenced follow-on regulations . . . .'' The Coast Guard
disagrees. If equipment requires replacement and the owner or managing
operator chooses not to make a replacement in kind, it is considered an
upgrade and subpart C may apply. Depending on the significance of the
replacement (whole system versus one particular piece), newer standards
may be applicable. Applying subpart C to replacement equipment will not
result in the same cost as applying subpart C to existing equipment,
and is appropriate because the maintenance and operation of the new
equipment may differ.
Alternate Design
We combined proposed Sec. 143.215 on alternate design
considerations with the functional requirements provisions of proposed
Sec. 143.110 that called for OCMI or third-party acceptance; these are
now located in Sec. 143.210, and have been further condensed to refer
to similar provisions in Sec. 136.115. As noted earlier in this
preamble, these changes do not alter the availability of approval for
alternate designs.
The Coast Guard received several comments requesting that we add
``company'' after ``owner'' in proposed Sec. 143.215. The Coast Guard
partially agrees. In Sec. 143.210(a), we inserted ``or managing
operator'' after ``owner'' to be consistent with other sections where
we list both. The definition of ``managing operator'' in Sec. 136.110
includes organizations, and if a company owns the vessel, it would be
covered by the definition of ``owner.''
TSMS
We removed proposed Sec. 143.205, as it was duplicative of part
138. With respect to the content of that proposed section, one
commenter had suggested the Coast Guard include ``guidelines'' in
paragraph (a), along with policies and procedures to ensure compliance.
The Coast Guard declines to make such a change in the provisions
discussing TSMSs, because the purpose of the TSMS is to help ensure
compliance with all parts of this subchapter, and the inclusion of
guidelines is not necessary to that minimum standard. Nothing prohibits
the inclusion of guidelines in individual TSMSs, however.
Existing Vessels Built to Class
We redesignated proposed Sec. 143.210 as Sec. 143.215. Proposed
Sec. 143.210 had provided that vessels classed by the American Bureau
of Shipping (ABS), or built to ABS rules, would be considered in
compliance with part 143 if they met certain additional requirements.
However, we determined that the requirements for existing and new
vessels need to be further distinguished.
This final rule creates flexibility for existing vessels: Existing
towing vessels currently classed by any recognized classification
society, or determined compliant with any recognized classification
society's appropriate rules, are equivalent to nearly all of the
requirements of subpart B. We have reduced the list of additional
requirements originally proposed in Sec. 143.210(b), so that existing
vessels that are classed or built to class rules only need to meet the
pilothouse alerter requirement (by the delayed effective date, 5 years
after the issuance of the first COI for the vessel) and readiness and
testing requirements. These fundamental safety provisions replace the
longer list that we had proposed. In particular, proposed paragraph
(b)(2) on potable water was removed because, as a number of commenters
noted, proposed Sec. 143.225 was ``reserved'' and listed no
requirements. The Coast Guard agrees with the suggestion to remove this
reference to potable water requirements; we note that Food and Drug
Administration requirements in 21 CFR 1250.82 already apply to potable
water systems for most towing vessels engaged in interstate commerce.
In addition, in Sec. 140.510(a)(14) an owner or managing operator must
identify and mitigate health and safety hazards related to the towing
vessel's potable water supply.
Also, with regard to proposed Sec. 143.210(a), the Coast Guard
received several comments suggesting we change the phrase ``mechanical
standards'' to ``machinery standards.'' The Coast Guard agrees that
``machinery standards'' is the industry accepted term, and amended the
section accordingly. In what is now paragraph (b), the Coast Guard
clarified that the OCMI or a third party would deem the vessel to be in
compliance.
As is discussed later in this preamble, new towing vessels meeting
ABS rules in accordance with Sec. 143.515, or classed by ABS, are
considered to be in compliance with part 143 except for the pilothouse
alerter and readiness and testing sections that are described below.
New towing vessels classed by other recognized classification societies
may also be compliant with part 143 if approved by the Coast Guard.
This final rule offers more flexibility than the proposed rule, in that
it provides for Coast Guard approval of other class standards, but does
not automatically accept all classed vessels as compliant with part
143. In light of the wide range of possible class standards in the
future, we believe this is the correct balance between safety and
feasibility.
Machinery Space Fire Prevention
We redesignated proposed Sec. 143.235 as Sec. 143.220. One
commenter suggested the Coast Guard change ``flammable liquid'' to
``flammable or combustible liquid'' in proposed paragraphs (a) and (c),
to cover diesel fuel. The Coast Guard agrees that most grades of diesel
fuel are considered ``combustible liquids'' as opposed to more volatile
``flammable liquids'' such as gasoline, and amended the section
accordingly to indicate the
[[Page 40063]]
intent of preventing fires. We also refer to 46 CFR subpart 30.10 for
definitions of those terms. Similarly, one commenter suggested we add
``and other flammable liquids'' to the restriction on oil in proposed
paragraph (b). The Coast Guard agrees with the underlying concern, but
has removed proposed paragraph (b) because it was duplicative of the
fire hazards provision in part 142.
With respect to proposed Sec. 143.235(c), several commenters said
that the temperature threshold required, 65.5 [deg]C
(150[emsp14][deg]F), is too low to be practical. The Coast Guard agrees
that the temperature specified in the NPRM was impractical, and amended
what is now Sec. 143.220(b) to adopt the SOLAS requirements for
insulation of hot surfaces: 220 [deg]C (428[emsp14][deg]F) as was
suggested by several commenters. SOLAS is an established,
internationally recognized set of rules developed and ratified by
maritime nations worldwide, and the Coast Guard determined that this
was the most appropriate reference.
With respect to proposed Sec. 143.235(d), one commenter suggested
the Coast Guard change ``materials'' to ``products.'' The Coast Guard
agrees that the suggested change is necessary to achieve uniformity
between parts 142 and 143, and amended Sec. 143.220(c) accordingly. In
the same section, one commenter suggested that the Coast Guard include
the amounts of flammable and combustible materials that can be safely
stored in machinery spaces under this section. The Coast Guard declines
to do so because, under the original proposed language, the limits
would be determined by the size of the designated areas defined in
Sec. 142.225 or the size of the flammable storage cabinet that
satisfies UL 1275. In addition, because available storage areas will be
limited by prohibitions on ignition sources in those areas, we believe
that operators will carry only the amounts of products necessary for
the vessel mission.
The Coast Guard received several comments recommending adding the
language from proposed Sec. 144.360(c) to proposed Sec. 143.235,
because it pertains to machinery space fire prevention. The Coast Guard
declines to add the language to part 143 because the provisions of
Sec. 144.605 address this topic for all towing vessels.
Control and Monitoring Requirements
We redesignated proposed Sec. 143.240 as Sec. 143.225. The Coast
Guard received several comments requesting that we change ``thrust'' to
``RPMs'' in proposed paragraph (a).
The Coast Guard does not agree with these comments because the use
of the word ``thrust'' is intended to cover other propulsion systems in
use today, including varying propulsion and steering control designs,
as well as indicators. An example would be a shaft tachometer as an
acceptable means of monitoring the vessel's propulsion thrust.
The Coast Guard received several comments asking if the position of
the rudder joystick is sufficient to meet the requirements of proposed
paragraph (b). The position of the rudder joystick does not provide a
positive position of the rudder and is not acceptable. The rudder
joystick simply provides an indication of the commanded position of the
rudder.
Alarms and Monitoring
We redesignated proposed Sec. 143.245 as Sec. 143.230. The Coast
Guard received several comments suggesting that the panel in the
wheelhouse needs only to alarm and should not be required to identify
the piece of equipment that has tripped the alarm. The Coast Guard
agrees that specifying the exact piece of equipment that is in an alarm
condition is not necessary in the wheelhouse. Rather, a summary alarm
in the wheelhouse is considered sufficient. We amended Sec. 143.230
accordingly. The Coast Guard also received comments concerning the
intent of requiring alarms to function when primary power is lost. We
agree that it is impractical that alarms on existing vessels have a
backup source of power in addition to the primary power supply, because
the primary concern on a loss of main electrical power is restoring the
main power source.
The Coast Guard received several comments requesting whether
certain alarms should signal high or low levels; the Coast Guard agrees
that clarification is needed, and amended the section to specify which
alarm settings are based on high or low conditions. Several commenters
suggested that the requirement for a ``main engine fuel oil pressure''
alarm should be removed. One commenter indicated that requiring fuel
oil pressure alarms was unnecessarily rigorous and would have a
disproportionate effect on small businesses. We agree that a wide range
of diesel engine fuel pressures may be acceptable depending on the
manufacturer, and that fuel oil pressure is not normally considered a
mandatory parameter to be monitored; these levels may be checked each
watch. We therefore removed proposed Sec. 143.245(a)(3) and (6) when
drafting the final version of Sec. 143.230.
One commenter requested a high level alarm requirement on day
tanks, stating that a number of spills have occurred as the result of
day tanks being overfilled. The Coast Guard agrees that a high level
alarm could be beneficial. However, we do not have spill data to
justify such a requirement and there are other acceptable means to
ensure the day tank is not overfilled (for example, routing the
overfill line to a storage tank, physically observing the level of the
tank during filling operations, monitoring quantity of fuel transferred
so it does not exceed available capacity). In the future, we may
propose requiring this alarm if spill data suggests overfilling of the
day tank could have been avoided by such an alarm.
The Coast Guard also received several comments stating that
proposed Sec. 143.245(a)(9) (now designated Sec. 143.230(a)(6))
addressing low fuel level alarms repeats proposed Sec. 143.275(d) and
that one of the two sections should be removed. The Coast Guard agrees,
and removed proposed Sec. 143.275(d).
One commenter suggested removing the requirement for hydraulic
level alarms.
The Coast Guard disagrees. There is a need to monitor the hydraulic
fluid in the steering hydraulic tank in the event of leaks or pipe/hose
rupture, because it is essential for maneuvering.
With respect to proposed Sec. 143.245(b)(3), the Coast Guard
received several comments in favor of a self-monitoring alarm system.
The Coast Guard agrees that a self-monitoring alarm system is a
practical alternative to manual testing of the alarm system, and
amended Sec. 143.230(b)(2) accordingly.
The Coast Guard received several comments suggesting deletion of
the requirement at proposed Sec. 143.245(c) that gauges be visible at
the operating station. The Coast Guard agrees that gauges are not
required at the operating station, provided that there are alarms or a
summary of alarms at each operating station. We amended this section
for clarification.
One commenter suggested that several provisions of the NPRM,
including gauges for engines at proposed Sec. 143.245(c), should not
be required because they are not required of passenger vessels in
subchapter T.
The Coast Guard disagrees with the suggestion that that no gauges
should be provided, although we agree that subchapter T vessels and
subchapter M vessels could have similar systems. The gauges required by
proposed Sec. 143.245(c) are considered minimum requirements for
monitoring engine
[[Page 40064]]
performance. However, in the final rule, the number of gauges required
has been reduced to only those considered essential to engine
monitoring, and which normally are provided by the manufacturer with
all engine installations regardless of the vessel type.
With respect to paragraphs (c)(1) and (3) one commenter suggested
that the Coast Guard add the engine RPMs to these sections. The Coast
Guard agrees that the main engine(s) and auxiliary generator engines
should be equipped with RPM indicators, and amended the sections
accordingly.
We deleted proposed paragraph (d) because summary alarms are
already allowed under revised Sec. 143.230(b)(1), so there is no need
for a separate section allowing this on excepted vessels. With respect
to proposed paragraph (d) one commenter suggested that the Coast Guard
add ``crewmembers responding to the alarm(s).'' The Coast Guard agrees
with the comment in that the proposed text could have been more
specific regarding communications between crewmembers. However,
proposed paragraph (d) was applicable only to excepted vessels, and
given the traditional size and service of excepted vessels, we
ultimately determined that a separate paragraph was not necessary.
General Alarms
We redesignated proposed Sec. 143.250 as Sec. 143.235. One
commenter suggested that the Coast Guard clarify the applicability of
this section. That commenter also recommended requiring the public
address system on towing vessels be equipped with ``talk-back''
capability.
The Coast Guard has modified the applicability section to be
clearer, and has made similar clarifying changes to Sec. 143.240(a).
As for adding a requirement for ``talk-back'' capability, we disagree.
This capability is not required on any commercial vessel and would be
unnecessary for the usual purposes of a public address system.
Readiness and Testing
We redesignated proposed Sec. 143.260 as Sec. 143.245 and, as
described earlier in this preamble, removed the functional and
prescriptive designators in favor of a unified section on alternatives
at the beginning of the part. One commenter suggested that the Coast
Guard remove ``(if available)'' from proposed Sec. 143.260(a).
The Coast Guard agrees that manufacturer's instructions are
normally available, and removed the phrase ``if available.''
With respect to proposed Sec. 143.260(b), the Coast Guard received
several comments to amend parts of the table to clarify that the intent
is for a crew change and not a watch or shift change. The Coast Guard
agrees that testing the propulsion and steering controls is not
necessary with every shift change, and amended the section to clarify
that the test is only necessary prior to getting underway, but not more
often than once every 24 hours. In the same section, one commenter
suggested changing the required testing frequency of alarm setpoints
and pressure safety valves from annually to every 2 years or longer.
The Coast Guard agrees and has amended Table 143.245(b) to make
these requirements more consistent with similar requirements in
subchapter F. Finally, one commenter suggested the Coast Guard change
``pressure vessel safety valves'' to ``pressure vessel relief valves.''
The Coast Guard agrees that relief valve is the more common terminology
and amended the section accordingly.
System Isolation and Markings
We have redesignated proposed Sec. 143.270 as Sec. 143.250. The
Coast Guard received a number of comments suggesting that ``graywater
lines need not be fitted with isolation valves or marked if all piping
is contained inside a fuel tank or void.'' The Coast Guard disagrees.
It is not possible for ``all piping'' to be contained in a tank, and it
is important for the piping system to be identified. However, the
intent of the requirement is for crew members to be able to identify
piping systems used in normal, everyday operations, and therefore it is
not essential that systems in normally inaccessible spaces be
identified.
One commenter suggested that the Coast Guard add a new paragraph
(e) to proposed Sec. 143.270 to cover sanitary discharges, and add
``Except as provided in paragraph (e) of this section'' to the
beginning of this section. The Coast Guard declines to do so because
the requirements in this section would apply to any system piping
penetrating the hull beneath the waterline. However, variations could
be accommodated through the provision for alternate design approvals
that has already been discussed in this preamble.
With regard to proposed Sec. 143.270(e), one commenter stated that
the use of ``either'' ISO Standard 14276 or marking in accordance with
the TSMS applicable to the vessel would lead to a lack of uniformity
between towing vessels and is counterproductive. The Coast Guard agrees
that one standard for industry color-coding of piping is preferred, but
lacks the casualty data to support a mandate for one particular
standard. Another commenter suggested that the Coast Guard identify the
basic colors used to mark piping.
The Coast Guard declines to do so because the international
standard referenced in this section already identifies basic piping
colors.
Fuel System Requirements
We redesignated proposed Sec. 143.275 as Sec. 143.255. The Coast
Guard received several comments suggesting that the requirement at
proposed Sec. 143.275(c) to replace fuel filters be based more on
``performance requirements'' as opposed to manufacturer
recommendations. The Coast Guard partially agrees and amended the
section, but considers manufacturer recommendations to be based already
in part on performance requirements, such as differential pressure and
time in service. We also amended proposed Sec. 143.275(a) to clarify
that the term ``be maintained'' used in the proposed rule means a
documented maintenance plan. We also made nonsubstantive changes to
proposed Sec. 143.275(b) for brevity and clarity.
As previously discussed, we removed proposed Sec. 143.275(d) in
response to comments stating it was duplicative of proposed Sec.
143.240(a)(9). We then added a new paragraph (d) that requires the use
of diesel fuel unless approval for another fuel is obtained pursuant to
Sec. 143.210 or Sec. 143.520. We did this because diesel fuel is
considered the standard for marine fuels, and the use of more volatile
fuels such as liquefied natural gas or propane requires approval by the
MSC.
Fuel Shutoff Requirements
We redesignated proposed Sec. 143.280 as Sec. 143.260. The Coast
Guard received a comment suggesting that we define ``near the source of
supply'' as used in proposed Sec. 143.280(c). The Coast Guard agrees
with this commenter. To clarify the section, we drafted Sec.
143.260(c) to require that the valve be installed in the fuel piping
directly outside of the fuel oil supply tank. We also received a
comment suggesting that the use of extra heavy piping should be
explicitly allowed as an alternative to situating the valve near the
source.
The Coast Guard disagrees. While such arrangements may be
acceptable with proper piping materials or other design choices,
locating the valve directly after the fuel supply source is the most
effective way to stop a leak.
The Coast Guard received one comment suggesting that we remove the
words ``outside the space where the
[[Page 40065]]
valve is installed'' from proposed Sec. 143.280(d) and instead
specifically require that the valve be located on the weather deck.
The Coast Guard disagrees because a safe place outside the
machinery may not always be located on the weather deck.
The Coast Guard also received one comment stating, in part, that
the ``requirement for remote shutdown of each engine outside the
machinery space is unworkable'' and suggesting the requirement should
be removed.
The Coast Guard does not agree: The remote shutdown outside the
machinery space is necessary in the event that the engine space is not
accessible due to fire.
Additional Fuel System Requirements for Towing Vessels Built After
January 18, 2000
We redesignated proposed Sec. 143.285 as Sec. 143.265. With
respect to proposed Sec. 143.285(b), the Coast Guard received several
comments requesting clarification on the proposed regulations regarding
``portable bilge pumps.'' A ``portable bilge pump'' as specified in
paragraph (b) is a dewatering pump. We received a comment suggesting
that the proposed rule would limit an operator's ability to dewater a
damaged tow. We disagree. The regulation allows for proper stowage and
use of portable tanks or cans for portable bilge pumps. The rules for
the barge itself are beyond the scope of this rulemaking, but
``portability'' of fuel is allowed in the circumstances specified by
this section. If an operator is safely able to reach a towed unit,
there is no prohibition on using portable equipment to dewater or fight
a fire on that unit.
The Coast Guard received a comment suggesting that the proposed
regulations did not consider a ``closed loop'' ventilation system
option for venting. The Coast Guard does not agree with this
characterization of the proposed rule, because proposed Sec.
142.285(c)(1), now designated Sec. 143.265(c), allows tank vents to be
combined, as long as there is ultimately a vent to the outside. We
received a comment suggesting revisions to the required size of the
vent piping. We partially agree, and the paragraph (c) has been amended
for clarity on this issue.
One commenter expressed concern with the use of flexible fuel
lines, noting that the use of flexible hose in the industry was
``rampant,'' and also suggested requiring containment systems beneath
oil purification equipment. This rule allows for flexible hose that
meets certain incorporated standards, meaning the hose has passed
pressure and fire testing. The rule also addresses the containment
concern by requiring that gaskets and seals be maintained, and bilges
kept free of accumulated oil.
Bilge Pumps or Other Dewatering Capability
We redesignated proposed Sec. 143.295 as Sec. 143.275. The Coast
Guard received several comments suggesting ``prescriptive''
regulations, such as those for larger ships in 46 CFR 56.50, be applied
to proposed Sec. 143.295. The Coast Guard decided not to impose a
prescriptive requirement for bilge pumping systems in this regulation
because of the extremely large number of different configurations
possible for towing vessels. A commenter said that proposed Sec.
143.295 was not specific enough with regard to dewatering capability,
noting that potentially ineffective dewatering methods such as
``buckets'' could be acceptable under the proposed text. We agree and
have amended the section to emphasize that an installed or portable
bilge pump must be available.
One commenter suggested that only ``installed'' (not portable)
bilge piping should be required to have a check/foot valve to prevent
unintended flooding. The Coast Guard agrees because a permanently
installed, power-operated bilge pump is not the equivalent of a
portable pump. We amended the text accordingly, as the use of a
portable pump implies constant operator monitoring, which would
normally prevent improper flow (backflooding).
Pressure Vessels on Existing Vessels
With respect to proposed Sec. 143.300, the Coast Guard received
several comments suggesting the application of existing pressure vessel
requirements in 46 CFR subchapter F and the ASME Code. Although these
are certainly acceptable for pressure vessel installations on all
vessels, the Coast Guard does not have casualty data to support the
mandatory use of the rigorous requirements of subchapter F by existing
towing vessels. Similarly, one commenter suggested the incorporation of
the ASME Code Section IV for heating boilers. The Coast Guard agrees
that the ASME Code is a preferable design standard for heating boilers,
and considers it acceptable for power or heating boilers on any vessel.
However, the Coast Guard has no significant reportable casualty data
with a root cause of boiler or pressure vessel design that justifies
the increased cost of requiring all towing vessels to use the ASME Code
for towing vessel boilers.
The Coast Guard received several comments suggesting that proposed
Sec. 143.300(b) be clarified with regard to examination requirements.
The Coast Guard agrees and amended paragraph (b) so that pressure
vessels are externally examined annually, along with relief valve
testing twice every 5 years. These changes make inspection requirements
for pressure vessels and relief valves more consistent with the
inspection requirements in subchapter F for pressure vessels on larger
ships. Because of these changes we added a new paragraph (c) to require
the maximum allowable working pressure be indicated on all pressure
vessels.
The Coast Guard received a question concerning the pressure vessel
requirements of proposed Sec. Sec. 143.300 and 143.540: ``Could a
towing vessel also meet the requirements of 46 CFR 61.10 in lieu of the
ABS Rules as prescribed in 143.540?'' The Coast Guard agrees that
compliance with 46 CFR 61.10 is acceptable and equivalent to (or
exceeds) the requirements in this rule. However, Sec. 61.10 generally
is applicable to large ships and the Coast Guard does not require
towing vessels to meet subchapter F engineering requirements.
Electrical Systems
We redesignated proposed Sec. 143.305 as Sec. 143.400. The Coast
Guard received several comments suggesting the Coast Guard remove the
requirement at proposed Sec. 143.305(d) that switchboards and
distribution panels be labeled with a description of the loads they
serve. The Coast Guard partially disagrees. For proper circuit
identification during operations and maintenance, labels must be
provided for the equipment served. However, the Coast Guard has removed
the requirement that equipment be marked with the location of the
isolating switch of circuit breaker, because the panel should indicate
that information.
The Coast Guard received several comments on proposed Sec.
143.305(i) expressing confusion on the use of male receptacle outlets
when transmitting power between two receptacles. The requested changes
were in line with the Coast Guard's original intent, but we decided the
clearest revision would be to remove the provision about male outlets.
As long as the plugs, cables, and receptacles are compatible and
designed for the power to be transmitted, specifying a particular
configuration is not necessary.
Shipboard Lighting
We redesignated proposed Sec. 143.310 as Sec. 143.410. One
commenter argued
[[Page 40066]]
that the requirement for emergency lighting in proposed Sec. 143.310
would be prohibitively expensive for small businesses and is neither
necessary nor of any value on smaller towing vessels where the crew
typically knows the vessel intimately.
The Coast Guard disagrees. With respect to the cost, there are
three different options for compliance, some as inexpensive as
phosphorescent lighting strips. With respect to the utility this
requirement in Sec. 143.410 for internal crew working and living
areas, we consider this lighting essential--even on smaller vessels--to
facilitate egress in emergency situations when normal lighting is not
working and dense smoke may be present.
The Coast Guard received several comments asking whether berthing
spaces were required to have emergency lighting under proposed Sec.
143.310(a). Specific berthing spaces are not required to have emergency
lights. However, in the event of power loss there must be sufficient
illumination in living areas to enable personnel egress from the living
space. One commenter suggested adding a requirement for one flashlight
per bunk. The suggestion is a good practice for mariners but the Coast
Guard declines to make it mandatory.
With respect to proposed Sec. 143.310(b)(2), the Coast Guard
received several comments suggesting we lower the required automatic
battery-operated emergency lighting capability from 3 hours to 30
minutes. The Coast Guard partially agrees with these comments, and has
modified the requirement in Sec. 143.410(b)(1) to 2 hours, consistent
with subchapter T. The requirement of 2 hours will ensure the
availability of battery-powered lights when needed, along with ample
battery capacity. Emergencies that require egress from a space, such as
a living space, do not necessarily mean abandoning the vessel: The crew
may need to assemble on deck to fight a fire or flooding, or restart
the main electrical plant. We confirmed that, for the second option,
phosphorescent strips are available that provide illumination for more
than 2 hours.
In addition, the Coast Guard removed proposed Sec. 143.310(b)(1)
because it was redundant with a related subparagraph in proposed Sec.
143.340(b)(9).
Pilothouse Alerter System
The pilothouse alerter requirements are now located in Sec.
143.450. In the NPRM, we proposed a pilothouse alerter system
requirement for all vessels (see proposed Sec. 143.210, as well as
Sec. Sec. 143.325, 143.515, and 143.520), with a deferred compliance
date for existing vessels. We proposed this requirement in response to
the NTSB report on the Robert Y Love allision with the I-40 Bridge, as
well as eight incidents where the operator died while navigating the
vessel and other cases that indicated probable incapacitation of the
operator. The Coast Guard received comments supporting and opposing the
inclusion of the deferred requirements proposed in Sec. 143.325.
After considering public comments, as well as the traditional
service and limited manning of towing vessels 65 feet or less in
length, we determined that a pilothouse alerter system is not necessary
for towing vessels 65 feet or less and have eliminated the alerter
requirement for this category of vessels. This is accomplished in Sec.
143.450(e).
We received a comment suggesting the alerter could become a
distraction for harbor assist vessels. We disagree, because a compliant
system could be set up to reset, for instance, each time the throttle
or steering was changed. We also received comments that the alerter
should not be required when a vessel had overnight accommodations but
those accommodations were not in use. We decline to make a regulatory
exception for this scenario, but this subchapter allows the OCMI the
discretion to waive certain requirements on a case-by-case basis when
appropriate.
We received a comment suggesting that requirements for systems such
as pilothouse alerters should be performance-based, and flexible with
regard to rapid developments in technology. The Coast Guard agrees. We
have not specified a particular design for an alerter system, only that
such system must meet certain performance requirements with regard to
time limits and adjustability of the alarm time to suit the vessel
mission.
With respect to proposed Sec. 143.325(a)(3), imposing a 10-minute
maximum acknowledgment time for the alerter, the Coast Guard received
several comments suggesting that the acknowledgment time for the
pilothouse alerted should be less than 10 minutes. The Coast Guard
partially agrees. New paragraph (b) of Sec. 143.450 provides that the
time may be reduced by the owner or managing operator in the TSMS but
must not be in excess of 10 minutes. We received a comment suggesting
that the Robert Y Love incident would not have been prevented by an
alerter set at 10 minutes. We acknowledge that it is possible that an
alerter set at 10 minutes may not have prevented the incident. It is
also possible that an operator could become incapacitated at any time
within a 10-minute alerter reset period. In the Robert Y Love incident,
had the pilot become incapacitated 1 minute before the alarm was
scheduled to sound, it is possible another crew member could have made
it to the pilothouse and averted the allision. As a reference point, we
note that SOLAS requirements for larger vessels (MSC.128(75)) require a
bridge watchstander alarm with an elapsed time between resets of 3-12
minutes.
We received a comment stating that ``fans with paper streamers
effectively fool motion detector systems.'' The Coast Guard notes that
a motion detector-type system is but one of many options to comply with
the alerter requirement. An attempt to interfere with any system
installed to meet the requirements of Sec. 143.450 would be
investigated. And as stated in Sec. 140.1000, there are statutory
penalties for violating the provisions of this subchapter.
The Coast Guard received several comments suggesting that a second,
adequately rested crewmember should be required in the pilothouse at
all times, as well as comments suggesting a second crewmember is an
unnecessary expense. The Coast Guard partially agrees with both
comments. A second adequately rested crewmember in the pilothouse of a
towing vessel, while not required by this section, is an acceptable
alternative to the pilothouse alerter system as stated in Sec.
143.450(d). We chose not to require that a second crewmember be in the
pilothouse because, in light of the thousands of vessels of all sizes
that safely operate with a single crew member on the bridge or
operating station, depending on maneuvering circumstances, we could not
justify the significant cost of requiring an additional watchstander on
all towing vessels. However, under 46 U.S.C. 8104 and 46 CFR 15.705, it
remains the master's responsibility to provide an adequate watch.
The Coast Guard received a comment requesting clarification of the
pilothouse alerter requirements for vessels with more than one
operating station. Because the alerter is required to detect
incapacitation of the vessel pilot, the system must be arranged to
alarm at each operating station. There may be various system
configurations that meet the intent of this requirement.
Towing Machinery
The towing machinery requirements are now located at Sec. 143.460
and apply to all vessels, with a deferred compliance date for existing
vessels. In connection with proposed Sec. 143.330(b) the Coast Guard
received several comments requesting an example of an
[[Page 40067]]
acceptable safeguard against the towing machinery becoming disabled if
the tow gets out of line. The Coast Guard agrees, and added an example
of a common safeguard to this section. We also received a comment
suggesting that the ``winch slippage alarm'' sound in the pilothouse.
The Coast Guard agrees such an alarm would be beneficial to operations,
but we do not have the casualty data to support the mandate of such a
system.
Deferred Requirements for Existing Vessels (Proposed Subpart C)
As discussed earlier in this preamble, we removed proposed subpart
C. We relocated to subpart B the requirements for pilothouse alerter
systems and towing machinery, and retained the deferred compliance date
for existing vessels: These requirements are discussed earlier in this
preamble. We removed proposed Sec. 143.335 on remote shutdowns because
a similar effect is accomplished through proposed Sec. 143.280 (now
Sec. 143.260) on fuel oil shutoff, and because remote fuel shutoff is
already required by 46 CFR subchapter C.
The remaining deferred provisions of proposed subpart C--Sec. Sec.
143.340 through 143.360 on specific electrical arrangements for
existing towing vessels--have been moved to subpart C for new vessels.
They do not apply to existing vessels. We made this change in response
to comments indicating these provisions were not appropriate for
existing vessels. Specifically, the Coast Guard received many comments
recommending the deletion of the prescriptive requirements in proposed
Sec. Sec. 143.340 through 143.360. Commenters characterized the
proposed requirements as burdensome, costly, requiring extensive
modifications, and not justified by risk.
The Coast Guard does not agree that the proposed requirements were
unjustified. Part 143 was developed in response to the recommendations
in Sections 6.1 and 6.2 of the ABSG Consulting report, which were based
on the risk analysis results in Section 4.3 of the report. See
Uninspected Towing Vessel Industry Analysis Project Final Report,
issued August 2006 and prepared by ABSG Consulting Inc., and Section
III.C of the NPRM (76 FR 49978). An industry analysis project team
performed a detailed analysis of the towing industry data from a number
of data sources, such as MISLE and site visits. The team also used
industry data provided by AWO as part of the Coast Guard-AWO Safety
Partnership. Two previous examinations of towing vessel accident
studies were also considered: The TSAC Towing Vessel Inspection Working
Group report (TSAC 2005) and a report by the Coast Guard Allision
Working Group (BAWG 2003). These risk analyses support characterizing
the proposed requirements as risk-based.
However, several comments asserted that the functional requirements
in proposed subpart B, ``Requirements for All Towing Vessels,'' are
sufficient for all existing towing vessels. These commenters
recommended the removal of proposed subpart C, ``Deferred Requirements
for Existing Towing Vessels.'' Further, the Coast Guard believes that
many existing towing vessels were originally built to acceptable
national or marine standards. Those would already be in substantial
compliance with many of the requirements of subpart B of part 143 of
the final rule.
The machinery and electrical requirements in subpart B will provide
the owners or managing operators of existing towing vessels with the
standards that existing equipment and installations must meet or should
have met during the construction of towing vessels. Third-party
inspections and eventual certification of electrical and machinery
systems of existing towing vessels that are in marginal condition or
poorly maintained may require some upgrades but may not necessarily
need extensive modifications of the vessel's systems. Commenters
provided estimates of the cost of extensive retrofits to existing
vessels in the range of $75,000 to $300,000 per vessel, considerably
higher than the cost estimated in the NPRM Regulatory Analysis ($5,000
to $20,000 per individual requirement). Further, comments indicated
that the need for retrofits to comply with the regulatory requirements
in proposed Sec. Sec. 143.340-143.360 would impact more than the
generally less than 5 percent of vessels per requirement estimated in
the NPRM Regulatory Analysis. The net result in total costs could
exceed $300 million (10-year, undiscounted). For these reasons, the
requirements in proposed Sec. Sec. 143.340-143.360 that were proposed
to apply to all towing vessels will now apply only to newly built
towing vessels, which includes vessels undergoing a major conversion.
Comments pertaining to the substance of those standards are discussed
later in this preamble.
Requirements for Oil or Hazardous Material in Bulk (Proposed Subpart D)
The proposed rule included deferred requirements for vessels that
tow oil or hazardous material in bulk. In response to comments
indicating these provisions were not appropriate for existing vessels,
we removed these requirements from existing vessels and relocated the
provisions to subpart C on new towing vessels. Comments pertaining to
the substance of those standards are discussed later in this preamble.
Subpart C, ``Requirements for New Towing Vessels''
Because of the organizational changes discussed earlier in this
preamble, proposed subpart E for new towing vessels is now designated
subpart C. We revised the applicability section in line with the
organizational changes described in our discussion of subpart A, and
made nonsubstantive editorial changes. We also removed proposed Sec.
143.505, as its content is now covered by the applicability section at
Sec. 143.500. In Sec. 143.510, we replaced the phrase ``plan
approval'' with the more accurate language ``verification of compliance
with design standards.'' We removed Sec. 143.530 as unnecessary in
light of other revisions to the part.
The ``classification option'' has changed little between the NPRM
and the final rule. For a new towing vessel, the same three options
apply in the final rule as in the proposed rule: New vessels may be
built to recognized classification society standards (Sec. 143.515);
to ABYC standards (Sec. 143.520) for smaller towing vessels; or to
neither standard, but instead be subject to the requirements set out in
subparts B and C of part 143. As an alternative to complying with the
electrical system requirements that are now listed in subpart C, the
vessel may instead comply with certain ABS rules as set out in Sec.
143.580; this alternative is substantively the same as was proposed in
the NPRM.
As was the case in proposed Sec. 143.515, even vessels built to
ABS rules or classed by ABS must comply with specific provisions of
part 143. In this final rule, those provisions are the requirements for
vessels that move tank barges carrying oil or hazardous material in
bulk (Sec. Sec. 143.585 through 143.595), the readiness and testing
requirements of Sec. 143.245, and the pilothouse alerter requirements
of Sec. 143.450. The readiness and testing requirements of Sec.
143.245 help verify proper in-service operation and safety of main and
emergency systems, above and beyond the initial design requirements of
part 143. As discussed above, the proposed potable water requirements
have been removed, but they remain a health and safety requirement
under Sec. 140.510(a)(14). Also, in this final rule we created
flexibility by providing for approval of towing vessels built to
[[Page 40068]]
recognized classification society rules other than ABS's.
Section 143.520(a) remains substantially as proposed, but paragraph
(b) has been revised to remove several requirements. New towing vessels
of 65 feet or less in length that are built to the ABYC standards
listed in paragraph (a) need only comply with the readiness and testing
requirements of Sec. 143.245, and with the requirements for vessels
that move tank barges carrying oil or hazardous material in bulk
(Sec. Sec. 143.585 through 143.595) if applicable. Other requirements
have been removed for these vessels, including the pilothouse alerter
requirements.
Pressure Vessels on New Vessels
We redesignated Sec. 143.540 as Sec. 143.545. With respect to
proposed Sec. 143.540(b), the Coast Guard received several comments
requesting alternate standards to the ABS rule referenced for pressure
vessels. While the ABS rules referenced are an industry standard for
pressure vessels, the Coast Guard may determine other design standards,
such as the ASME Boiler and Pressure Vessel Code, to be equivalent as
described in Sec. 143.210. Therefore, we made no changes to this
paragraph in response to this comment.
Electrical Engineering Systems
Several comments also recommended the proposed prescriptive
requirements in proposed Sec. Sec. 143.340-143.360 should not apply to
new towing vessels. The Coast Guard does not agree. The proposed
requirements of these sections are based on the present acceptable
national or marine electrical engineering standards. As explained in
Section IV of the preamble to the proposed rule, the Coast Guard
developed part 143 after considering the reports provided by ABSG
Consulting and TSAC, which were generated from marine casualty cases
and risks. Also, as stated in the preamble to the proposed rule, the
Coast Guard conducted its own in-depth analysis of the cases reviewed
for the ABSG report, along with deficiency reports from examinations of
towing vessels during compliance exams conducted pursuant to 33 CFR
part 104 as part of the implementation of the Maritime Transportation
Security Act of 2002 (MTSA) (46 U.S.C. Chapter 701). These reports
provided evidence that substandard machinery installation and
maintenance is a concern on towing vessels. For example, from January
2006 through August 2008, the Coast Guard conducted 768 of these MTSA
compliance examinations of towing vessels and issued 2,949
deficiencies. Electrical deficiencies involving installation and
maintenance accounted for 8 percent (226) of the deficiencies. This 8
percent deficiency rate highlights the need to establish more specific
standards for electrical installations on towing vessels. The current
regulations in subchapter C for electrical installations on uninspected
vessels are minimal and not adequate for towing vessels. In addition,
the incremental cost to incorporate the new standards into the design
and construction of a new vessel are low in comparison of the total
construction costs of the vessel and the potential reduction in risk of
fire.
Several commenters provided cost estimates to retrofit an existing
vessel to comply with the proposed requirements in Sec. Sec. 143.340-
143.360 that range from $75,000 to $300,000. These estimates are higher
than the cost estimated by Coast Guard in the NPRM Regulatory Analysis
(which ranged from $5,000 to $20,000 per requirement ($60,000 per
vessel if all of the requirements are incurred). The comments also
indicated that far more vessels would require the retrofits than was
estimated in the NPRM Regulatory Analysis. The NPRM estimated
annualized costs of part 143 at $3.2 million and the benefits at $5.7
million. If the high end of the costs per vessel of $300,000 were used,
the annualized costs could as much as triple. Increasing the affected
population for the retrofits as per the comment would increase the
costs even more. Given the new information on the potential range of
costs and affected population, the Coast Guard has determined that the
benefits of the NPRM's proposed deferred requirements for existing
vessels will not outweigh the costs. Given the potential cost burden of
retrofitting existing vessels, the baseline electrical requirements for
existing towing vessels in the final rule, coupled with a robust
inspection regime, will establish an adequate safety environment for
towing vessels.
The electrical requirements in this final rule will provide the
owners or managing operators the design and engineering standards for
equipment and installations for new construction. The prescribed
electrical power and distribution system designs are based on proven
electrical recommendations, practices, and consensus-based standards.
Electrical Power Sources, Generators, and Motors
We redesignated proposed Sec. 143.340 as Sec. 143.555, and made
nonsubstantive changes to simplify and shorten the section. The Coast
Guard received several comments suggesting that proposed Sec. 143.340
be clarified so that a backup generator could be used as a secondary
power source. The Coast Guard agrees, and amended the text in paragraph
(a)(3) to better explain the requirements for backup power source.
We also received a comment suggesting the proposed Sec. 143.340
may be interpreted as requiring duplicate essential systems such as
radar or emergency lighting. We did not intend the original language to
be read that way, and have amended the corresponding section of the
final rule to clarify that emergency communications and navigation
equipment must be provided with a backup power source.
We received a comment stating that the electrical load analysis
requirements of proposed Sec. 143.340 were ``excessive and
unnecessary''. Although the Coast Guard believes that a load analysis
is required for nearly all vessels with generators, we presume that
load analysis has already been done for existing vessels and is
therefore applicable only to new towing vessels. This change is
reflected in this final rule. We also simplified the analysis
requirement by removing proposed paragraph (b)(2).
The Coast Guard received several comments suggesting we include the
specific NEC reference in article 430 in this section. The Coast Guard
agrees and amended the section by specifying that Parts I through VII
of article 430 are required. These Parts of Article 430 further define
the scope of motor overcurrent protections required. We also received
comments suggesting that the proposed requirements in Sec. 143.340
will require ``complete rewiring'' of inland towing vessels. This
comment is addressed by our decision to apply these requirements only
to new vessels.
The Coast Guard received several comments suggesting we lower the
ambient temperature rating at paragraph (b)(7) of this section from 50
[deg]C to 40 [deg]C, similar to ABS rules. The Coast Guard partially
agrees. The Coast Guard amended the section so that the generator does
not need to be certified to operate in an ambient temperature of 50
[deg]C if it can be shown that the space the generator is in does not
exceed 40 [deg]C. This reduction in minimum ambient temperature rating
reflects an established normal ambient temperature allowance, even for
large vessels currently regulated by the Coast Guard.
With respect to proposed Sec. 143.340(b)(9) (now designated Sec.
143.555(b)(8)) the Coast Guard received several comments suggesting
clarification on what the Coast Guard meant by ``two independent
sources of
[[Page 40069]]
electricity'' in this section. To clarify, the prescriptive requirement
in what is now paragraph (b)(8) requires a minimum of two sources of
power. For example, if a generator provides the normal source of power
for navigation lights, there must be another generator or a battery
bank arranged as a secondary power source. One commenter suggested
adding the word ``essential'' to paragraph (b)(8) this section. The
Coast Guard agrees, and has modified the text accordingly. We have also
amended the section to specify the radios and navigation equipment
required in Sec. Sec. 140.715 and 140.725. This change is in line with
other comments suggesting that we include the distress alerting
communications equipment listed in Sec. Sec. 140.715 and 140.725.
These comments also suggested that the backup power source for the
distress alerting communication equipment have a means of monitoring
the voltage available, and the source of supply selected either by an
automatic switchover or a simple switch in the vicinity of the
emergency distress alerting communications equipment. The Coast Guard
agrees that distress alerting equipment should be added to this
section, and also that a means must be provided to monitor the battery
condition, and amended the section accordingly.
We received a comment suggesting that, if a battery were to serve
as the required secondary power source, it would need to be
unnecessarily oversized for the loads specified. We mostly disagree;
there is no requirement that the secondary power source be a battery
(e.g., the secondary source could be a generator). The electrical loads
specified in this section are not necessarily large consumers, and any
battery sized for these loads needs to be sized proportionally, not
oversized. Also, this requirement in proposed Sec. 143.340 has been
amended to apply only to new towing vessels.
However, we agree with the commenter that some alarms may not
require a secondary power source, and have amended this section to be
specific as to which alarms require secondary power.
We received comments suggesting removal of the requirement in
proposed Sec. 143.350 to separate overcurrent protection for essential
and non-essential systems. We disagree, because the intention is to
prevent opening the circuit on essential loads because of a fault in a
non-essential system. This requirement has been amended to apply only
to new towing vessels.
We received a comment suggesting that ``essential systems'' be
defined to avoid confusion in the inspection process. The Coast Guard
agrees, and notes that a proposed definition of essential system was
included in proposed Sec. 136.110. However, we have amended the
requirements of Sec. 143.555 of the final rule to provide clarity on
this issue.
Electrical Grounding and Ground Detection
We redesignated Sec. 143.355 as Sec. 143.570. With regard to
proposed Sec. 143.355 the Coast Guard received several comments
stating that most towing vessels are ungrounded, and that the section
should specifically adopt the ground detection requirements of 46 CFR
183.378. Proposed Sec. 143.355 did not prohibit the use of ungrounded
systems. The Coast Guard recognizes that towing vessels can have either
grounded or ungrounded electrical distribution systems. We agree with
the comment, however, and therefore added detection requirements
similar to 46 CFR 183.378. This requirement applies only to new towing
vessels, and the requirements are based on vessels regulated under
subchapter T, which have similar electrical systems. While revising
this section, we modified paragraph (e) to consolidate paragraphs
(e)(1) and (3).
The Coast Guard also received several comments stating that this
section does not allow the use of common two-prong appliances less than
50 volts or two-prong double-insulated tools. The Coast Guard considers
the use of two-prong double-insulated tools to be an acceptable
industry practice, and amended the section to allow the use of double-
insulated tools, or two-prong appliances of less than 50 volts.
Electrical Conductors, Connections, and Equipment
We redesignated proposed Sec. 143.360 as Sec. 143.575. As
discussed elsewhere in this preamble, we received comments stating that
existing vessel compliance with this section and other electrical
sections in the NPRM would involve substantial costs and retrofitting.
The bulk of these comments are addressed by making these electrical
requirements applicable only to new vessels.
With respect to proposed Sec. 143.360, the Coast Guard received
several comments suggesting we clarify paragraph (a)(2) with respect to
overhead wiring. The Coast Guard agrees, and amended the section to
specify that this requirement is applicable to overhead and vertical
cable runs supported by cable hangers.
We received a comment suggesting the use of a performance standard
rather than a specific cable hanging method. The Coast Guard partially
agrees with the concern, but could not find an acceptable performance
standard, so we have amended the section to allow a 48-inch spacing,
rather than the proposed 24 inches, to be consistent with recognized
electrical-contracting standards.
In paragraph (a)(3) of that section, one commenter suggested that
wiring be allowed within 24 inches of moving machinery if the wiring is
protected. The Coast Guard agrees, and amended this section to be
applicable to cable and wire runs. We also clarified that cable and
wire runs within 24 inches of moving machinery must be adequately
protected to prevent damage, and added text to clarify what ``moveable
machinery'' means.
In paragraph (b), one commenter suggested replacing the phrase
``may not'' with ``must not''; the Coast Guard agrees that this
language is clearer. This requirement is consistent with the permitted
use of flexible cords or extension cords in Section 400.7 of the
National Electrical Code (NEC), and Section 24.6.1 of IEEE 45-2002.
In paragraph (c), the Coast Guard received several comments stating
that this section prohibits the use of power strips. The intent of this
section is not to prohibit the use of multi-outlet adapters (power
strips), but to prevent ``daisy-chaining'' of power strips, which may
overload the circuit. We have amended this section to clarify the
requirement to prevent circuit overload when using power strips.
Towing Vessels That Tow Oil or Hazardous Material in Bulk
Because of the reorganization discussed earlier, a separate subpart
for towing vessels that tow oil or hazardous material is no longer
required. Proposed Sec. Sec. 143.405 through 143.435 have been
incorporated into the final rule's subpart C for new vessels. The
requirements of proposed subpart D will not apply to existing towing
vessels. This change responds to many comments arguing that proposed
subpart D should not apply to existing vessels.
Commenters who opposed the application of proposed subpart D to
existing vessels argued that the proposed requirements were not based
on risk; would require unjustified or wholesale retrofitting; would
cause severe economic penalty, disproportionate financial hardship for
small towing companies, and might eliminate certain classes of towing
vessels. Also, several comments asserted
[[Page 40070]]
that the Coast Guard ignored the decline in the frequency and amount of
oil spills from tank barges over the last twenty years. Other comments
mentioned that the proposed requirements in subpart D will have little
impact on the prevention of oil spills in the tank barge sector
because, as noted by TSAC, ``Current industry best practices have
produced a dramatic reduction in oil spills from tank barges over the
last decade and a half, with a record low 919 gallons spilled (out of
nearly 65 billion gallons transported) in 2010, the last year for which
complete Coast Guard statistics are available.'' Also, industry
comments mentioned that the preamble cites S. 1892, a bill introduced
into the 110th Congress, as a reason for including the proposed subpart
D in part 143, and note that this bill never became law.
We proposed subpart D based on the statistics from the ABSG report,
which included high and low consequence incidents. Given the casualty
history presented in the ABSG report, the Coast Guard determined that
the proposed requirements could reduce the ongoing risk of oil spills
and the resulting consequences. Data on oil spills through 2014 shows a
continual pattern of a few major spills contributing to the majority of
the volume spilled each year. Even though a recent TSAC report notes a
dramatic reduction in oil spills from tank barges over the last decade
and a half, the casualty data through 2014 indicates that minimum
safety standards for engineering system design, coupled with a robust
inspection regime, would maintain or even further reduce the risk of
spills.
Several commenters provided information on the cost to retrofit
existing vessels to comply with the Subpart D requirements. The
estimates range for all of the deferred requirements from $75,000 to
$300,000 per vessel, higher than the Coast Guard estimates in the NPRM
Regulatory Analysis. Existing vessels are already designed and
constructed, so requiring a complete replacement of some vital
engineering systems is neither practical nor justified by the safety
benefit achieved.
In light of the new information on the costs for retrofitting
existing vessels, the requirements of the proposed Sec. Sec. 143.340
through 143.435 have been removed for existing vessels. The
requirements are retained in the final rule for new towing vessels, as
there is a smaller incremental cost to incorporate the design features
in a new vessel.
Several commenters misinterpreted the proposed requirements in
proposed Sec. Sec. 143.405, 143.410, and 143.420 (now Sec. Sec.
143.585, 143.590, and 143.595) regarding the installation of a second
main engine. The intention of the proposed rule was to require
redundancy of necessary auxiliaries, allowing a sustained or restored
propulsion capability of the towing vessel--not to require redundant
engines. The proposed requirements did not prohibit a towing vessel
with single propulsor, but only placed requirements for support
equipment (auxiliaries) on vessels with one propulsor. The requirements
differentiate between independent and/or redundant control systems and
the propulsion systems under remote control. For example, on a vessel
with two propulsion engines, the proposed rule requires the remote
control of one engine to be independent of the remote control of the
other engine. For risk reduction, the proposed requirements would
ensure that when one engine remote control fails, remote control of the
other engine would remain operable. We have also modified what is now
Sec. 143.595 for vessels with one propulsor, to clarify which
equipment is considered a vital auxiliary, and eliminated the
requirement that this equipment ``automatically'' assume the function
of the failed unit. Although it is acceptable for vessels to have
equipment that automatically starts when other equipment fails, it is
not absolutely necessary, and in fact it may be preferred for crew
members to visually assess a failure or impending failure of the
primary equipment before deciding to manually start the redundant
equipment.
In proposed Sec. 143.405 (now Sec. 143.585), one commenter
suggested preventative maintenance schedules and additional required
training in lieu of some of the requirements in this section. The Coast
Guard disagrees. While an attentive operator may notice problems before
the associated alarms and redundancy requirements are triggered, the
alarms (with appropriate delays) are required as a means to alert the
operator. We received a comment suggesting separation of the propulsion
and steering requirements in this section. The Coast Guard acknowledges
that propulsion and steering are two separate and vital systems, but
the requirements for alternate arrangements and independence for these
systems as specified apply to both propulsion and steering. Additional
propulsion requirements are also specified in Sec. Sec. 143.590 and
143.595.
We also received a comment suggesting the use of a ``bow steering
module,'' which is essentially an assist vessel attached to a barge
propelled by a traditional towboat. Although the Coast Guard agrees
that a bow steering module may be considered equivalent to the
requirements of an alternate means of propulsion and/or steering, this
type of arrangement would need to be determined in particular cases by
the OCMI or the Commandant for equivalency.
With respect to proposed Sec. 143.405 (now Sec. 143.585), one
commenter asked whether paragraph (k) requires automatic starting of a
standby generator or if the loads referenced should be on battery
backup. The Coast Guard agrees that the proposed section was unclear
and amended the section by specifying a second source of supply that is
capable of automatically starting, and of helping to restore or
maintain power to propulsion, steering and related controls when the
main power source fails. This requirement will provide continued or
restored operation of a towing vessel that moves tank barges carrying
oil and hazardous material in bulk, even if the primary systems fail.
One commenter was confused about what the Coast Guard meant by ``stored
energy'' in paragraph (l). The Coast Guard clarified this section by
providing examples of ``stored energy systems'' that are generally used
onboard towing vessels. We also simplified this section by removing
paragraph (l)(2) as not necessary for towing vessels.
With respect to proposed Sec. 143.420 (now Sec. 143.595), we
added a clarifying description of ``vital auxiliaries'' in paragraph
(a).
One commenter asked if proposed paragraph (d)(2) required two
hydraulic tanks for steering. In response to the commenter, an
acceptable arrangement would consist of two independent hydraulic
tanks, or one hydraulic tank separated by a solid baffle, which is
considered equivalent to two tanks. However, the Coast Guard has
determined that the steering system requirements of Sec. 143.550 are
sufficient, that the requirements of Sec. 143.595 are intended only
for vital auxiliaries for propulsion, and so we have eliminated the
steering system paragraphs from this section. Also, the fuel system
requirements of proposed Sec. 143.420(c) were redundant to current
Sec. 143.265, so we removed that paragraph.
We received a comment suggesting elimination of proposed
redundancies in systems for vessels towing oil or hazardous material,
and leaving those types of decisions for a case by case determination
in the vessel's TSMS. We disagree, because it is important for vessels
with one propulsor to have redundancies in the vital auxiliaries--such
as fuel, lube oil, and cooling
[[Page 40071]]
water--supporting the engine. However, this section has been amended to
apply only to new towing vessels.
We received a comment suggesting ``grandfathering'' proposed
deferred requirements because of prohibitive costs, and have addressed
this comment by applying these requirements to new vessels only.
Another commenter requested clarification of ``independent'' as opposed
to ``redundant.'' Those terms have distinct meanings, but we agree that
the proposed text could be clearer, and have amended Sec. Sec.
143.115, 143.590, and 143.595 to define and use the term
``independent.'' In this subpart, ``independent'' means the ability to
perform a function regardless of the status of another system, and
``redundant'' is not used in subchapter M.
N. Construction and Arrangement (Part 144)
We received general comments suggesting the requirements proposed
in part 144 were not justified by risk-based decisions and should
therefore be removed. A commenter felt that some proposed regulations
in this part are too stringent: For example, the commenter felt that
the stability requirements in subparts A, B, and C of part 144 are not
reflective of the loss history for inland vessels.
We disagree with the characterization of proposed part 144 as not
risk-based and, further, we believe they represent the minimum safety
standard of construction and arrangement that is common to all
inspected vessels. While there are some requirements applicable only to
new towing vessels, these requirements do not exceed the requirements
imposed on other types of small inspected vessels and, for this reason,
we do not agree that they can be considered to be too stringent. As for
existing towing vessels, we find no requirements in this rule that
would require costly modifications to a properly maintained and
satisfactorily functioning existing towing vessel.
Three commenters suggested that organizing vessels into two
subparts, existing vessels and new vessels, instead of three subparts,
would be easier for issues related to grandfathering. We generally
agree that the proposed regulations would benefit from reorganization,
and we have modified this part to delete requirements repeated in other
parts of the subchapter or that were too vague. Further, we agree with
the commenters with respect to organizing requirements into a format
that is more aligned with other inspection subchapters.
A majority of the requirements are either the same or very similar
to requirements contained in the Construction and Arrangement part in
subchapter T, Small Passenger Vessels (46 CFR part 177). We aligned
part 144 with the organization, and subpart and section titles, of part
177. This organizational choice also better reflects the relatively
large number of part 144 requirements that apply to both existing and
new vessels, and the relatively small number that apply to new vessels
only. As a result of these changes, we use the term ``vessel'' when
discussing requirements that apply to both new and existing vessels,
and use the specific terms ``new'' or ``existing'' vessel to describe
those that apply only to one or the other. At the end of this
discussion of comments on part 144 and structures and stability, we
have provided a derivation table that lists part 144 section numbers in
this final rule and the proposed sections from which they derived.
Also, where appropriate, we have noted the corresponding part 177
section number or an explanation of an edit.
We received several comments, mainly from maritime companies
suggesting revisions to Sec. 144.215. Commenters suggested that
special consideration be given to structural requirements for towing
vessels ``operating exclusively within [limited geographic areas], and
towing vessels under 65 feet in length, in addition to towing vessels
of an unusual design.''
We agree with these commenters that the types of vessels for which
special consideration may be given in proposed Sec. 144.215 should be
clarified, and we have adopted the suggested under-65-feet-in-length
measure to define what we had described as ``small vessels'' in the
proposed rule. This rule also provides that special consideration may
be given to vessels operating exclusively within a limited geographic
area, because the OCMI is familiar with the specific hazards of the
limited geographic areas within his or zone.
Commenters felt that proposed Sec. 144.220(a) should be edited to
ensure that routine upgrades to equipment, such as engine repowering,
would not require compliance verification. Further, towing companies
felt that proposed Sec. 144.220(a) and (b) should be revised to
clarify the intention of the terms ``major conversion or alteration''
and ``replacements in kind.''
The Coast Guard believes that compliance verification with design
standards for upgrades to equipment, such as engine repowering, as in
proposed Sec. 144.220(a), should be retained because of possible
changes to stability and other vessel characteristics related directly
to safety. We have done so in this final rule in our redesignated
verification of compliance section, Sec. 144.135.
With respect to the request to clarify the terms ``major conversion
or alteration'' and ``replacement in kind'' in proposed Sec.
144.220(a) and (b), in Sec. 136.110 we have clarified our proposed
definition of ``major conversion'' and added a definition of
``replacement in kind.'' We note that Sec. 144.135 uses the phrase
``major conversion or alteration'': Although ``alteration'' is not
defined in this rule, we use the term as it currently used in 46 CFR
91.55-10 to mean an alteration that involves the safety of the vessel.
Separately, we have reformatted the text of Sec. 144.135 in tabular
form to make this section easier to read.
The term ``verification of compliance'' in part 144 addresses
verifying that the design of a vessel meets the standards used. To
distinguish this activity from the compliance verification required in
part 137 under the TSMS option, we have added the words ``with design
standards'' to this term. We also removed from this section the
provision that a verification of compliance be performed upon request
of the Coast Guard because this is covered by part 136.
To provide more options for the qualifications in proposed Sec.
144.225, now re-designated Sec. 144.140, we have extended the group of
entities able to verify compliance with design standards to include the
Coast Guard and certain authorized classification societies, not just
ABS. For the purposes of this verification, the authorized
classification society must have been delegated the authority to issue
a SOLAS Cargo Ship Safety Construction Certificate and the employee who
performs the verification must have the proper qualifications. Similar
references to ABS with respect to a verification of compliance with
design standards have been revised accordingly. Regardless of the
inspection option chosen, the verification of compliance with design
standards can be performed by any one of the persons or entities
identified in Sec. 144.140.
Some commenters discussed the costs of developing plans for review.
Two maritime companies suggested that proposed Sec. 144.230,
Procedures for verification of compliance with construction and
arrangement standards, would be costly for companies with older vessels
that were constructed without plans produced by a naval architect. A
maritime company suggested alternatives for hull structure
[[Page 40072]]
and piping, electrical, machinery systems and stability reviews that it
viewed as more cost-effective.
Proposed Sec. 144.230, now re-designated Sec. 144.145, was
intended for vessels undergoing a major conversion or alteration to the
hull, machinery, or equipment--as described in proposed Sec. 144.135.
A major conversion often results in an extension of the vessel's
service life. Therefore, the procedures in Sec. 144.145, would not be
invoked unless required by Sec. 144.135. Because Sec. 144.135 does
not require a verification of compliance with design standards for an
existing vessel, we do not envision that an owner or operator would
need to provide plans to ensure the existing vessel complies with the
standards used. A new towing vessel will need to undergo a verification
of compliance with design standards.
We have clarified procedures for verification of compliance with
design standards to require copies of verified plans be provided to the
third-party organization that conducts a survey, if applicable, in
addition to the OCMI.
Two commenters suggested that because naval architects are well
qualified, a P.E.'s signature is not needed for vessel construction.
While many naval architects are also licensed P.E.s in the jurisdiction
in which they reside or conduct their business, not all are. The
benefits of P.E. licensure are well documented and accepted in the
United States. The requirement for a P.E.'s seal on vessel construction
plans may be considered commensurate with that required for buildings
within a municipality. Accordingly, we clarified in Sec. 144.145 that
the documents must be stamped with the seal authorized for use by the
individual performing the verification, whether that is the P.E. or a
representative of the recognized classification society or the Coast
Guard. We acknowledge that there may be gaps in documentation of
smaller vessels, so we have clarified that the term ``plan'' means
drawings, calculations, schematics, diagrams or other documents and
provide a list of what those plans may include, based mostly on 46 CFR
177.202.
We have clarified and revised the provisions for sister vessels in
proposed Sec. 144.235, now re-designated Sec. 144.155, to be
consistent with Sec. Sec. 144.135, 144.140, and 144.145.
Two commenters said that the marking requirements in proposed Sec.
144.240 should include the same basic colors used to mark piping for
flammable liquid, seawater cooling, and firefighting systems proposed
in Sec. 143.270(c). We do not agree that piping marking requirements
in part 143 need to be repeated in part 144. We made no changes from
the proposed rule based on these comments.
Both proposed Sec. 144.310(a) for existing vessels and proposed
Sec. 144.405 for new vessels specified that a vessel classed by ABS
would meet the structural standards of part 144, because ABS rules
include stability standards that generally meet those contained in
Coast Guard regulations. We have consolidated those sections into Sec.
144.120, stating that a vessel that is classed by a recognized
classification society is in compliance with subparts B and C of part
144. In accordance with proposed Sec. 136.210(c), as well as similar
changes in this rule, we have acknowledged that structural and
stability standards contained in the rules of other recognized
classification societies are commensurate with ABS rules, and have
extended this provision to class by a recognized classification
society.
In a similar way, we recognized that proposed Sec. 136.210(d)
deemed a vessel with a valid load line certificate to be in compliance
with structural and stability standards, among others, and since
proposed Sec. 144.310(b) repeated this, Sec. 144.125 contains this
text.
In proposed Sec. Sec. 144.305 and 144.310, we proposed structural
standards for an existing vessel. These are now contained in Sec.
144.200, which has been aligned with Sec. Sec. 144.120 and 144.125 to
avoid repetition. As provided in proposed Sec. 144.305(a), an existing
vessel to which no construction standard was applicable would need only
show that it has been in satisfactory service and its service history
does not cause the structure of the vessel to be questioned. Similarly,
structural standards for new vessels that we proposed in Sec. 144.410
are now contained in Sec. 144.205. The use of alternate design
standards is covered by Sec. 136.115 as discussed elsewhere in this
preamble.
Because the requirements of proposed Sec. Sec. 142.220(c) and
144.350(a) were so similar, we have merged them into Sec. 144.415.
A commenter said that proposed Sec. 144.315 and Sec. 144.415
regarding stability standards would not apply to all vessels and was
concerned about grandfathering a number of vessels that may be unstable
and remain uninspected. As discussed in more detail elsewhere in this
preamble, this final rule focuses on the towing vessels presenting the
greatest risk. Further, several commenters stated that stability is not
a problem on inland towing vessels. The Coast Guard notes that casualty
records generally support this view. For an existing vessel that will
be inspected, the stability standards for an existing vessel in Sec.
144.300 will require the vessel to show it has a history of
satisfactory service that does not cause its stability to be
questioned, or meet a similar standard that ensures adequate stability.
Stability standards for a new vessel in Sec. 144.305 will require the
vessel to show it complies with minimum standards that are applied to
other inspected vessels. One commenter suggested that a minimum
freeboard of ``like 24 inches'' for all vessels would improve stability
standards. While the Coast Guard agrees that a requirement for such a
freeboard may improve stability, both the degree of the stability
improvement and its benefit are unknown and, for this reason, a
freeboard requirement of this amount was not included in this final
rule.
An association commented that that the proposed regulation (Sec.
144.355) does not contain size requirements and specifications for
accommodation spaces for the crew. The commenter recommended several
specifications to be included in the regulations.
The Coast Guard declines to adopt the suggested specifications. Our
proposed requirements for accommodation spaces for the crew on towing
vessels subject to inspection under this subchapter were contained in
proposed Sec. 144.355 and were generally taken from subchapter T--
small passenger vessels. In response to comments, we have amended
proposed part 144 to include a subpart dedicated to crew spaces. Crew
space requirements in this final rule, as we proposed in the NPRM, are
based on performance standards rather than prescriptive size
requirements.
With respect to proposed storm rail requirements in proposed Sec.
144.340, now re-designated Sec. 144.810, we added the option of hand
grabs but removed the requirement for storm rails on both sides of a
passageway more than 6 feet wide because there are no towing vessels to
which this subchapter would apply that would have such a wide
passageway.
An individual suggested the removal of proposed Sec. 144.345,
Guards in dangerous places, because of its similarity to proposed Sec.
143.230. We decided to keep this requirement, now designated Sec.
144.820, in part 144 and delete the similar requirement in part 143.
With respect to insulation of hot piping, we retain the requirement
for existing vessels in proposed Sec. 144.350(b), now redesignated
Sec. 144.830, and for new vessels we provide a similar but more
specific requirement that aligns with an existing requirement in 46 CFR
177.970.
[[Page 40073]]
In reference to a collision event involving the tug Caribbean Sea
and a ``Duck'' tour boat in Philadelphia in 2010, a commenter
recommended that the NPRM include ``height of eye'' guidelines for
towing vessels. The commenter also suggested that the Coast Guard
consider including the ``transmissivity of light'' through glazing
materials on towing vessels in proposed Sec. 144.325 or Sec. 144.425.
The Coast Guard notes that while ``height of eye'' requirements are
not specifically addressed in this rule, the regulations in subpart I
require windows and other openings at the operating station to be
properly located to provide a clear field of vision. As proposed in
both Sec. Sec. 144.325 and 144.425, the visibility of the windows
immediately forward of the operating station in the pilothouse must
allow for adequate visibility regardless of weather conditions. In
response to the idea to include a ``transmissivity of light''
requirement, the Coast Guard notes that 46 CFR 177.1030(b) includes
such a standard for operating station visibility for small passenger
vessels and we decided to include this same requirement at what is now
Sec. 144.905(e).
Table 2--Derivation of Sections of Part 144 From the NPRM
------------------------------------------------------------------------
NPRM Section
Final rule section No. No.(s) Notes (if necessary)
------------------------------------------------------------------------
144.100.................. 144.100 Revised text referring to
``plan review and approval''
to ``verification of
compliance'' for clarity.
144.105.................. 144.200, Created general applicability
144.300, section, Sec. 144.105,
144.305, after removing definition
144.400 section. Our revisions to
part 144 eliminated subparts
specifically for all
vessels, existing vessels,
and new vessels, so we
combined applicability
sections for those subparts
into Sec. 144.105. In
paragraph (b) that refers to
alterations or
modifications, text similar
to that contained in SOLAS
Chapter II-1/1.3, ``. . .
insofar as is deemed
reasonable and practicable''
is added to reflect actual
process that will be
addressed in the
verification of compliance
with design standards.
144.105 Removed Sec. 144.105,
144.110 Definitions; added
definition of ``length
between perpendiculars or
LBP'' to Sec. 136.110.
Derived definition for LBP
term, used in final rule
Sec. Sec. 144.155 and
144.315, from Sec.
170.055. We moved the
content of the former Sec.
144.110 to a consolidated
central incorporation by
reference section for the
entire subchapter, Sec.
136.112.
144.120.................. 144.310(a), While proposed Sec.
144.405, 144.310(a) addressed only
136.210(c) structural adequacy,
proposed Sec. 136.210(c)
was broader and referred to
compliance with the entire
subchapter. This section
reflects the general
satisfaction of subparts B
and C of part 144 by vessels
currently classed by a
recognized classification
society.
144.125.................. 144.310(b), While proposed Sec.
136.210(d) 144.310(b) addressed only
structural adequacy,
proposed Sec. 136.210(d)
was broader and referred to
compliance with the
structural, drydocking, and
stability requirements of
the subchapter. This section
reflects the satisfaction of
structural, stability, and
watertight integrity
requirements by a vessel
holding a valid load line
certificate.
144.130.................. 136.115(b) Vessel in compliance with
SOLAS is considered to be in
compliance with part 144.
144.135.................. 144.220 Verification of compliance
requirements are placed into
a table for clarity.
144.140.................. 144.225 Qualifications revised into a
table for clarity.
144.145.................. 144.230 Procedures for verification
are clarified with minor
revisions that include a
clarification that
``stamped'' means the
imprint of the seal of the
P.E. and that ``plans''
include a list of drawings,
diagrams, calculations,
schematics and other similar
documents.
144.155.................. 144.235 Sister vessel verification
clarified with general
revisions. Among these is a
change of ``same plans'' to
``verified plans'' and
``equipped with same
machinery as the first
vessel'' to ``equipped with
machinery of the same make
and model as the original
vessel.''
144.160.................. 144.240 General marking requirements
clarified with general
revisions including a more
appropriate reference to
draft mark required in
subchapter I at 46 CFR 97.40-
10.
144.205 Proposed section on TSMS
deleted because the proposed
TSMS requirements are
contained in parts 137 and
138.
144.210 Proposed section with general
requirements deleted because
the general requirement is
repeated from parts 136 and
137.
144.200.................. 144.310 Structural standards for
existing vessels are
contained in this section.
144.205.................. 144.410 Structural standards included
for new vessels including
rules and alternatives.
144.215.................. 144.215 This section is revised to
clarify conditions under
which OCMIs may act on
special consideration.
144.300.................. 144.315 Retains proposed stability
requirements for an existing
vessel with a stability
document and added
satisfactory service,
operational tests, or a
satisfactory stability
assessment as standards for
an existing vessel without a
stability document; weight
and moment history moved to
Sec. 144.315.
144.305.................. 144.415 Contains stability
requirements for new
vessels; lifting
requirements moved to Sec.
144.310; weight and moment
history moved to Sec.
144.315
144.310.................. 144.415(d) New section for lifting
requirements.
144.315.................. 144.315(c), Weight and moment history
144.415(e) requirements consolidated
into one section.
144.320.................. 144.320(a) Revised to refer to both new
and existing vessels;
section title changed to
also refer to weathertight
integrity.
144.330.................. 144.320 Revised section to provide
OCMI authority to require
review of a vessel's
watertight or weathertight
integrity. Proposed
paragraphs (a)(1), (2), and
(3) are deleted as
repetitions of requirements
in Sec. Sec. 140.610(a)
and (f) and Sec. 143.270,
respectively.
144.400.................. 144.435(a) Fire protection requirements
applied to a new vessel,
except Sec. 144.415 which
applies to each new and
existing vessel.
144.405.................. 144.435(a) Section title taken from Sec.
177.405(a) with the
requirements unchanged from
the proposed rule.
144.410.................. 144.435(b) Section title taken from Sec.
177.405(c) with the
requirements unchanged from
the proposed rule.
144.415.................. 144.350(a), Section title taken from Sec.
144.435(c), 177.405(b) with the
142.220(c) requirements in three
proposed sections merged.
144.435(d) The provisions in proposed
Sec. 144.435(d) are
covered in Sec. 142.225,
Storage of flammable or
combustible products.
144.425.................. 144.435(e) Section title taken from Sec.
177.405(f) with the
requirements unchanged from
the proposed rule.
[[Page 40074]]
144.430.................. 144.435(f) Section title taken from Sec.
177.405(g) with the
requirements unchanged from
the proposed rule.
144.500.................. 144.330(a), Requirements similar to Sec.
144.330(e) 177.500(a)
144.505.................. 144.330(b) Requirements similar to Sec.
177.500(b) and (c)
144.510.................. 144.330(c) Requirements similar to Sec.
177.500(n)
144.515.................. 144.330(d) Requirements similar to Sec.
177.500(o)
144.600.................. 144.360(a) .............................
144.605.................. 144.360(c) .............................
144.610.................. 144.360(b) .............................
144.700.................. 144.355(b),(c) .............................
144.710.................. 144.355(a) .............................
144.720.................. 144.355(d) .............................
144.800.................. 144.335 .............................
144.810.................. 144.340 Added hand grabs as an option
to storm rails and removed
requirement for storm rails
on both sides of a
passageway more than 6 feet
wide.
144.820.................. 144.345, Proposed requirements for
143.230 guards for exposed hazards
in part 143 is merged with
part 144 proposed
requirement.
144.830.................. 144.350(b) Hot piping insulation
requirement for an existing
vessel is retained and a
more specific requirement
for a new vessel is based on
Sec. 177.970.
144.905.................. 144.325, Proposed requirements for
144.425 operating station visibility
for both existing and new
vessels are merged.
144.920.................. 144.430 Changed ``porthole'' to
``portlight'' to match our
intent for this requirement.
In practice, this change is
a nonsubstantive
clarification because the
requirement is only relevant
to portholes with
portlights.
------------------------------------------------------------------------
O. Miscellaneous Comments
In the NPRM we discussed comments submitted in response to seven
questions we posed in a December 30, 2004, Inspection of Towing Vessels
notice. Some commenters commented on those questions and that
discussion. One person stated that uninspected towing vessels have been
running efficiently for more than a century and that they have no
problems that need to be addressed by a TSMS. In response to a
discussion of grandfathering, another commenter stated that many
existing towing vessels have operated in excess of 40 to 60 years
without a major accident.
While towing vessels may be running efficiently, and many may not
be involved in a major casualty, as we noted in the NPRM, towing vessel
casualties continue to occur. Each year,\6\ there is an average of 18
fatalities, 35 injuries, $66 million in property damages, and 446,000
gallons of oil spilled. Additional damages occur after towing vessel
casualties in the form of delays from lock and waterway closures. A
primary objective of this rulemaking is to reduce fatalities, injuries,
property damaged, and oil spilled, by reducing the risk of towing
vessel casualties.
---------------------------------------------------------------------------
\6\ Casualty consequences are from MISLE for accidents from
2002-2007.
---------------------------------------------------------------------------
Others who commented on our discussion of these questions from 2004
focused on specific subject areas intended to be addressed by our
proposed regulatory text and the reasoning we provided in the preamble
of the NPRM for that proposed text:
Machinery and Electrical: A commenter noted that space
constraints and crew abilities should be considered before requiring
new equipment on small vessels.
Applicability: Three commenters suggested that existing
vessels should be ``grandfathered'' to minimize the expense and
potential closing of businesses that will not be able to comply with
new regulations. One commenter felt that few vessels other than those
under 26 feet, or those used for commercial recreational vessel towing
assistance, should be exempted from the regulation, and that fleeters
should be exempted on a case-by-case basis.
Construction & Arrangement, Fire Protection, and TSMS: One
of those commenters would only apply grandfathering to equipment, hull
construction and structural fire-protection requirements, but
recommended that all vessels should comply with the proposed SMS rules
within one year.
TSMS: The same commenter suggested that using the ISM Code
from 2002 as a guideline in developing the SMS requirements will allow
for a number of operators using the AWO RCP to be compliant.
Fire Protection: The commenter also felt that existing
vessels should be treated differently from newly constructed vessels
because of the likelihood that fire standards will make it difficult to
retrofit existing vessels.
While these comments are not in direct response to the regulatory
text we proposed, we have addressed these comments in the same section
of the preamble where we discuss comments on the corresponding proposed
regulatory text. For example, for a response to the comment regarding
whether existing and new vessels should be treated differently
(``grandfathered'') with respect to fire protection standards, see the
Fire Protection discussion of comments section.
A towing company requested that the Coast Guard consider issuing a
supplemental NPRM so the public and industry will be able to review the
revisions to the rule before it is final. A maritime company suggested
that the Coast Guard urge towing companies to become familiar with
tried and tested engineering guides and standards. The commenter also
suggested that the Bridging Program remain functioning until all towing
vessels are found to be compliant with the rule.
We disagree with this commenter about issuing a supplemental NPRM.
This final rule reflects consideration of the thousands of comments we
received on the NPRM we published in 2011.
Regarding urging towing companies to become familiar with tried and
tested engineering guides and standards, we encourage towing companies
to obtain knowledge from such guides and standards, but the purpose of
this final rule is to establish specific requirements. This rule
provides some flexibility (e.g., the option to choose a
[[Page 40075]]
TSMS or Coast Guard inspection regime) but it is not a guidance
document: it imposes requirements for which penalties may be applied if
the requirements are not met. We have not made changes from the
proposed rule based on this comment.
As for the Bridging Program, we are currently in Phase 2 of that
program. During Phase 1, we conducted Industry Initiated Examinations
for companies taking advantage of the opportunity to participate in
this Coast Guard program. Phase 2 is focused on Risk-Based Targeted
Examinations and is scheduled to continue until this final rule becomes
effective. Phase 3 will commence with the implementation of the new
subchapter M towing vessel inspection regulations and issuance of
Certificates of Inspection (COIs).
A commenter suggested that towing vessel officers and officer
candidates be tested on the new towing vessel inspections that appear
in the final rule. The commenter said the Coast Guard provides only one
opportunity to test the ``professional knowledge'' of candidates for
Apprentice Mate/Steersman, Mate/Pilot, and Master of Towing Vessels,
and that for years, it tolerated insufficient knowledge of existing
regulations throughout the towing industry by licensed officers,
management, and even Coast Guard personnel assigned to boarding
parties. He noted that the Coast Guard's Towing Vessel ``Bridging''
program has done a commendable job trying to reverse this trend.
Before imposing training requirements on those credentialed under
46 CFR subchapter B, we would want to receive comments in a separate
rulemaking on such proposed requirements. As for Coast Guard personnel
conducting inspections under subchapter M, it is our normal process to
draft a specific Performance Qualification Standard to ensure that
inspectors are properly trained and fully capable of performing such
inspections. Also in our oversight of TPOs, we will be sure to assess
the TPO personnel's comprehension of subchapter M requirements.
One commenter felt that there is a lack of adequately trained
lookouts and that providing the Master and Pilot with a trained, well-
rested lookout can avoid many significant and costly towing accidents.
We agree that a trained, well-rested lookout would be more likely
to help avoid towing accidents than a tired lookout who is not
adequately trained. The rule does not contain specific training or
hours of work requirements for lookouts, although such training and
fatigue management may be part of a TSMS. We are considering developing
a separate rulemaking for hours of service and crew endurance
management based on our authority under 46 U.S.C. 8904(c). If we do so,
we will publish a separate document in the Federal Register. We have
made no changes from the proposed rule based on these comments.
Two commenters urged the Coast Guard to include a regulation that
requires companies to provide mariners with a ``letter of sea service''
when the mariner is renewing their credentials.
We believe this suggestion is outside the scope of this rulemaking.
We would want to receive comments on this suggestion in a separate
rulemaking before imposing such a requirement.
An individual and an association felt that the ``Bridging'' book,
updated with regulations from this final rule and other related
regulations, should be provided in electronic format to provide a clear
regulatory and policy statement to the towing industry and thereafter
the Coast Guard should require the book or an updated electronic copy
be carried aboard each towing vessel. One of these commenters noted
that when the Coast Guard promulgated new oil pollution regulations in
1973, they provided an explanatory pamphlet and a required completion
of an ''open-book'' test on the new regulations.
The Coast Guard notes that the Coast Guard's Bridging Program will
cease to be applicable to towing vessels once this final rule becomes
effective. We have prepared a Small Entities Guide which is available
in the docket. With respect to an electronic form of subchapter M and
other related regulations, we note that this final rule and subchapter
M regulations that will become part of the CFR will be available
through www.gpo.gov/fdsys.
An association commented on the need for vessel route restrictions
on a COI to be done on a vessel-by-vessel basis based upon reasonable
safety considerations, and the need for adequate sea anchors and ground
tackle for towing vessels that service oceans and coastwise routes.
A Coast Guard OCMI will make vessel-specific determinations
regarding a vessel's route and other operating conditions which will be
identified in the vessel's COI. Towing vessels come in a variety of
shapes, sizes, and services, some of which could utilize anchors and
other ground tackle as appropriate. An anchor that is appropriate for
the towing vessel would not necessarily be adequate to accommodate the
tow. It is incumbent upon the towing vessel owner or managing operator
to examine their operating conditions and decide if having an anchor
and other ground tackle is appropriate.
Two commenters suggested that doubler plating is not acceptable as
a longstanding repair policy and recommended that the use of doubler
plating be prohibited in regulation for vessels that have been
inspected, unless it is approved by a Commandant.
The Coast Guard has not adopted this recommendation. Second, since
this comment was submitted, ASTM has issued a national consensus
standard for the use of doubler plates as a permanent repair for
vessels in all services. We have made no changes from the proposed rule
based on these comments.
A commenter suggested that the NFPA standards referenced in the
NPRM be updated to the current editions. This commenter also requested
that we correct our references to NFPA 70, the National Electrical Code
(NEC), which are listed incorrectly as ``National Electric Code'' in
proposed Sec. Sec. 136.110, 136.112, 143.120; 143.340(b)(6);
143.350(b); and Section II, Abbreviations.
The Coast Guard believes it is not necessary to update to the
current editions of the NFPA standards at this time; in this final rule
we have maintained the NFPA editions that we proposed in our NPRM. We
have, however, corrected the error in our citations to NFPA 70,
National Electrical Code (NEC).
A maritime company felt that the terminology used in the proposed
rule is broad and could be interpreted differently depending on the
reader. The commenter gave ``major defects'' and ``substantial'' as
examples of items totally left up to the opinion of the individual
auditor, and suggested that more precise terms be included to ensure
consistency in the application of the regulations.
The Coast Guard notes that we did not use the term ``major
defects'' in the NPRM. We did, however, use the term ``major non-
conformity,'' which we also defined. We also note that we have added or
amended definitions based on many comments on our proposed rule.
In this final rule we do use the word ``substantial,'' or a version
of it, in our definition of ``major conversion'' in Sec. 136.110 and
in our revocation of TPO approval section, Sec. 139.150. We agree that
using more precise terms is appropriate when one is available, but
sometimes a more flexible term is the only appropriate term to use. We
believe this is true of our uses of the term ``substantial'' in this
final rule and that the common understanding and
[[Page 40076]]
definition of that term, combined with Coast Guard interpretation of
that term in other regulations, does place restrictions on how
individual auditors may interpret it. We have made no changes from the
proposed rule based on this comment.
Lastly, a commenter suggested that the Coast Guard implement a
notification system to remind vessel owners of deadlines that are
approaching for their fleets.
The Coast Guard notes that it has a system that is currently used
for other inspected vessels to provide owner and managing operators
with notification of impending compliance deadlines and plans to use
this same system for towing vessels inspected under this subchapter.
However, owners and managing operators are still ultimately responsible
for meeting these deadlines and the associated inspection requirements
including notification of the cognizant OCMI as required in part 136.
P. Crew Endurance Management Systems (CEMS)
We thank those who commented in response to our Hours of Service
(HOS) and CEMS preamble discussion in the NPRM (76 FR 49991-49997, Aug.
11, 2011). These comments have helped to inform our consideration of
HOS and CEMS issues confronting the maritime community.
As we stated in the NPRM, the Coast Guard would later request
public comment on specific hours-of-service or crew-endurance-
management regulatory text if it seeks to implement such requirements.
We are considering developing a separate rulemaking for HOS and CEM
based on our authority under 46 U.S.C. 8904(c). If we do so, we will
publish a separate document in the Federal Register.
We have summarized HOS and CEM comments below as a means of sharing
the valuable input we received on this topic we discussed in the NPRM,
but we have limited our responses because we are not proposing HOS or
CEM requirements in this document. In general, we have only responded
to these comments when we want to refer to what we said in the NPRM or
point to currently available guidance or resources to address an issue
raised. We have attempted to sort these comment summaries based on the
questions we asked in the NPRM.
Some commenters wondered why, despite assembling sufficient data,
the Coast Guard seeks additional information on potential requirements
to increase uninterrupted sleep duration, while others described the
Coast Guard's efforts to address hours of service as minimal and in
need of revision. Another commenter said mariners resent the Coast
Guard's failure to take a stand on maximum work hours and safe minimum
manning requirements.
In the NPRM, the Coast Guard shared its views on potential HOS and
CEMS program standards and requirements, and sought additional data and
other information that we solicited through specific questions because,
as we stated, we are ``considering establishing hours of service
standards and requirements for managing crew endurance, the ability for
a crewmember to maintain performance within safety limits while
enduring job-related physiological and psychological challenges.'' (76
FR 49991, Aug. 11, 2011.)
We received several comments suggesting that the traditional 2-
watch system be replaced by a 3-watch system that provides more
opportunity for increased uninterrupted sleep. One commenter said work
durations should be reduced to a maximum of 21 days, with a phase-in of
the 3-watch system within 10 years. Another commenter recommended that
the Coast Guard develop a NVIC to provide one or more specific 2-watch
rotation models that would meet the work hour limitations and minimum
rest hour standards.
Several commenters noted that a ``6-on, 6-off'' schedule is unsafe
or insufficient for allowing adequate rest. One commenter said an ``8-
hour on, 4-hour off; then 4-hour on, 8-hour off'' schedule would
achieve the maximum hours of rest while maintaining the current amount
of crew. However, another commenter said an ``8:8:4:4'' schedule may
allow for less total sleep over 24 hours than a ``6:6:6:6'' schedule.
We received several comments referencing crew manning with respect
to potential work hour requirements. Some commenters said any towing
vessel operating over 12 hours in any 24-hour period should be manned
with two full crews, not just with two licensed officers. One commenter
recommended a safe manning level that would support a 3-watch system
for vessels towing laden tank barges containing oil or hazardous
material in bulk. Another commenter stated that the Coast Guard should
require a relief pilot or three pilots onboard vessels (captain, after
watch pilot, and swing pilot). Several commenters noted that crews are
increasingly undertaking administrative duties, which can impact
appropriate manning and mariners' opportunity for rest.
An element of a CEMS that might improve the awareness of the lack
of opportunity for crew members to obtain adequate sleep would be to
keep a record of each crew members' work and rest schedule. We note
that NVIC 02-08, Enclosure (4), provides a CEM program evaluator
checklist to capture areas that need improvement and ways to go about
addressing those areas. Page 4 of Enclosure (4) provides an example of
how a crew member might analyze their current work/rest schedule to
identify any associated risks involving fatigue.
Several commenters suggested regulations that limit the workday to
12 hours in a 24-hour period for all mariners. One commenter said the
NPRM should mandate maximum work-hour limitation for unlicensed
personnel and maximum allowable work days and rotations.
We received numerous other comments. One commenter said that
without clear and enforced work-hour regulations and independent third-
party inspections, towing boat companies will continue to exploit crews
who are eager to remain employed.
One commenter urged the Coast Guard to promulgate HOS regulations
consistent with NTSB Safety Recommendation M-99-1. A maritime company
recommended minimum hours of rest similar to those set forth in the
latest STCW (Manila) amendments (STCW 2010, Chapter VIII, Section A-
VIII/1).
One association noted that the Coast Guard should have decided this
issue ever since that association first presented it in May 2000 in
National Mariners Association Report #R-201 titled ``Mariners Speak Out
on Violations of the 12-Hour Work Day.''
We received several comments supporting the implementation of an
HOS rule that would allow for sufficient time off to obtain at least 8
uninterrupted hours of sleep, or at least 7 hours of uninterrupted
sleep and an additional sleep period in every 24 hour period. However,
some commenters said the current statutory requirements in 46 U.S.C.
8104(g) are sufficient.
Several commenters opposed a requirement for a minimum of 7 to 8
hours of uninterrupted sleep for personnel on towing vessels. A
maritime company responded that requirements should consist of a
minimum of one 6-hour period of uninterrupted rest within a 24-hour
period and a minimum of 10 hours per day of total rest. Two commenters
stated that the NPRM's focus on a minimum of 8 hours of uninterrupted
sleep fails to acknowledge that a long sleep period in conjunction with
a nap of shorter duration during a 24-hour period do not result in a
compromised mental and physical state. Similarly, a commenter
[[Page 40077]]
said it is not the number of uninterrupted hours of sleep per day that
is important for performance and maintenance of alertness, but rather
the total hours of sleep per 24 hours. Also, the commenter said data
indicates that shift workers who work 8 hours and have 16 hours off to
sleep only obtain 5 to 6 hours of sleep when sleep occurs at the
``wrong'' circadian time.
We received one comment saying the best method is to allow for
anchor sleep to occur during one sleep opportunity and a nap sleep to
occur during the second sleep opportunity. A maritime company responded
that a Safe Manning Document, with prescribed watch requirements taking
into account the vessels route and service requirements, would be the
best way to ensure that sufficient qualified personnel are available
for 12 hours of work per day.
A maritime company responded that the direct financial impact on
its company would be minimal, as most of its vessels are already manned
to allow for 7 or 8 hours of uninterrupted sleep (three in each
department). However, the commenter noted that the company would lose
some level of oversight and daily productivity in performing, for
example, inspections and maintenance.
One commenter stated that sufficient uninterrupted sleep for vessel
crew is the best insurance a vessel owner or managing operator can have
against casualties. A maritime company stated that there would be a
benefit to managing work periods in relation to safety, but setting a
minimum number of consecutive hours without changing the 12-hour work
period may make it difficult to manage vessel operations in a 24-hour
period.
One commenter responded that allowing crews a 7- to 8-hour sleep
opportunity does not mean crewmembers will routinely obtain 7 to 8
hours of uninterrupted sleep because it is impossible to mandate sleep.
We agree that a mandate to provide an opportunity for a sufficient
number of hours of uninterrupted sleep will not guarantee that
crewmembers sleep for the desired number of hours. But as we suggested
in the NPRM, providing the opportunity ``to increase uninterrupted
sleep duration to a threshold of at least 7 consecutive hours in one of
the two available off periods in the two-watch system [would] increase
the probability that crewmembers will have the opportunity to restore
the cognitive abilities necessary to maintain situational awareness,
even if the sleep environment is not optimal.'' 76 FR 49996, Aug. 11,
2011. As noted above, log-keeping could be an effective way to gauge
work and rest schedules throughout daily onboard operations.
A maritime company responded that while 7 hours of sleep is ideal,
this does not work well in a 12-hour work schedule, and is still
controversial even within the pioneering companies that initially
implemented and tested the CEMS practices. The commenter concluded that
the CEM training teaches that this--getting 7 hours of sleep--is the
last and one of the least important facets of the program.
Another maritime company responded that, when given a 7- to 8-hour
sleep opportunity, mariners cannot obtain 7-8 hours of uninterrupted
sleep. Thus, it is common in the towing vessel industry to allow for
two sleep opportunities where each opportunity allows for significant
sleep such as on a ``6:6:6:6'' square watch schedule.
We received many comments, mostly from maritime companies, opposing
a potential requirement for a minimum of 7 to 8 hours of uninterrupted
sleep for personnel on towing vessels because no current watchstanding
system meets this standard. Several commenters, including maritime
companies, said the ``6 on/6 off'' watch schedule has worked for many
years and should not be altered. A maritime company responded that the
traditional ``6 on/6 off'' watch schedules would have to be changed to
a ``5/7/7/5,'' or'' 4/8/8/4,'' and a ``12/12'' schedule may even need
to be worked depending on vessel operations. Another commenter
expressed concern about the difficulty that operators would have in
finding experienced personnel to meet the proposed watch standing
standards.
One commenter responded that it is impossible to mandate that
mariners ``obtain a required number of hours of uninterrupted sleep,
such as 7-8 hours.'' Instead, what is needed is to change mariner
culture such that sufficient sleep is understood to be important for
optimal performance, safety, and health.
A maritime company said a mandate would undoubtedly change the
entire operation onboard, including meal hours, voyage planning, etc.
Another maritime company responded that a mandate that required
mariners to obtain 7 to 8 hours of uninterrupted sleep would require
the use of pharmacological agents or behavioral therapies (e.g.,
exercise, sleep hygiene, cognitive behavioral therapy for insomnia)
that would enable mariners to achieve the mandated hours of
uninterrupted sleep.
One commenter noted that many factors, including electronic
gadgets, noise in the berthing spaces, and dietary considerations can
have an adverse impact on a mariner's ability to obtain adequate sleep.
We received one comment that said requiring 7 to 8 hours of
uninterrupted sleep would require one-third more crewmembers than the
company presently can accommodate on board.
One commenter stated that recent data on sleep make it unlikely
that crews on a ``7:7:5:5'' or an ``8:8:4:4'' watch schedule could
obtain close to 7 or 8 hours of sleep, even when the endogenous drive
to sleep coincided with a 7- or 8-hour rest period.
Two commenters said focus on nutrition and hydration has helped
employees, but the companies have not changed watch schedules. Two
other commenters responded that they have implemented CEMS, but one
noted that it does not require that mariners receive 7 to 8 hours of
uninterrupted sleep.
An association and another commenter said a CEMS program alone
cannot account for the fatigue caused by the existing 2-watch system on
vessels in 24-hour service. The commenters stated that many mariners
are unwilling to adjust their lives to fulfill the requirements of the
system, and employers who force the program upon their mariners will
encounter resentment and retention problems.
A maritime company responded that if a CEMS program enabled crews
to obtain 7 to 8 hours of total sleep over a 24-hour period, such a
program could be effective in combating fatigue. Another maritime
company responded that any operation can benefit from CEM practices
absent of work/rest changes. Diet, exercise, and environmental factors
are all critical to improving operations and reducing fatigue.
Another maritime company responded that there is no evidence HOS
restrictions reduce casualties and injuries, although this may be
possible if crews can achieve 7 to 8 hours of total sleep on a day-to-
day basis.
A maritime company commented that no existing programs could be
considered equivalent to the Coast Guard CEMS program. The alternative
would be a traditional ship ``4/8'' watch schedule, which would require
manning increases for most companies.
One commenter responded that, yes, a mandate would cause burden to
smaller companies with limited resources. Another commenter said
requiring a crew management program would increase the already large
financial burden of implementing these proposed regulations on mid-
sized and smaller companies, as well as an increased cost to the end
consumer due to the necessity of larger crews.
[[Page 40078]]
A maritime company responded that for a full CEMS program, a 4- to
5-year period would be appropriate to allow for training,
implementation, and auditing. Another maritime company responded that
there is no appropriate phase-in period or method until evidence is
provided that implementation of a new HOS requirement is effective.
In their comment to the docket (USCG-2006-24412-0187), the National
Transportation Safety Board indicated they were pleased with the
comprehensiveness, relevance, and timeliness of the literature that the
Coast Guard cited in the NPRM, and believes that this literature aptly
summarizes the state-of-the-art of human factors and physiological
research on the effects of fatigue on human performance. The commenter
went on to cite several maritime and transportation accidents in which
operator fatigue was identified as a contributing factor.
A maritime company noted that Coast Guard cites the Fatigue
Avoidance Scheduling Tool (FAST) algorithm and produces nine figures
(Figs 2-10) for assessing the effects of work and rest schedules on
human health and performance, but there is no evidence in the FAST
model that mariners will be able to obtain 7 to 8 hours of
uninterrupted sleep on a ``7:7:5:5'' or ``8:8:4:4'' rectangular watch.
Another maritime company disagreed with scientific studies that have
indicated that uninterrupted sleep of less than 8 hours gives a worker
a response time equivalent to someone with blood alcohol content of
0.05-0.08. Other commenters recommended a study on sleep requirements
strictly related to inland waterways vessels.
We received a few comments supporting the structure of a CEMS
program, and stating that before work hours or watchstanding practices
are changed, a program including crew physical wellness and fatigue
education and training must be put into place. One commenter supported
additional training for crew members in the area of crew member fatigue
and work and rest periods.
There are currently several opportunities to learn more about CEMS
and mariner fatigue. We recommend talking with your company safety
officer for training options, or visit http://www.uscg.mil/hq/cg5/cg5211/cems.asp for more information on CEM.
One commenter said the concept of crew endurance is in effect a
``Band-Aid'' for a system that is broken, and that the Coast Guard has
objective scientific evidence to take clear and definitive actions for
establishing maximum work-hour limitations.
We received several comments stating that the Coast Guard's
emphasis on uninterrupted sleep differs from the description of CEMS in
NVIC 02-08, Criteria for Evaluating the Effectiveness of Crew Endurance
Management System Implementation. Further, the commenters said NPRM's
emphasis on 7 to 8 hours of uninterrupted sleep is troubling not only
because of its inconsistency with prior Coast Guard publications
describing the purpose of CEMS, but more importantly because it
reflects an incomplete and selective treatment of the science behind
sleep and watchstanding.
As discussed in NVIC 02-08, components of a CEMS that improve the
safety culture and sleep quality include education, environmental
changes, light management, trained coaches, and schedule changes. As
indicated in Enclosure (4) of NVIC 02-08, a crew's watch schedule
should be evaluated based on the opportunity for each member to achieve
a sufficient amount of uninterrupted sleep.
A maritime company stated that the CEMS demonstration project did
not provide any data to support any changes in HOS or any endurance
management standards.
We received several comments complaining about the Coast Guard's
inaction regarding HOS and crew endurance. However, many commenters,
mostly maritime companies, said the towing vessel inspection rule is
not the proper place for requirements regarding fatigue management,
which has implications for the entire maritime industry and that it
would be more appropriate to address the issues raised in the NPRM
relating to periods of rest and watchstanding in a separate rulemaking
project particularly as it pertains to the marine industry as a whole.
One commenter said any additional CEMS requirements should be
identified in a company's TSMS and not in regulation.
Several commenters said emphasis on minimum required hours of sleep
is not justified by science or data. One commenter said the NPRM is
confusing and lead a reader and, more importantly, an inspector to draw
the wrong conclusions about how a vessel watch should be set up. A
maritime company said there is a need for literature that explores
anchor sleep/nap sleep strategies; compares sleep times on different
watch schedules where the total amount of sleep and work opportunities
are equivalent; evaluates the effectiveness of educational programs to
change the culture of crews on board towing vessels; documents why
mariners do not obtain 7 to 8 hours of sleep per 24 hours; and
evaluates effective strategies for the treatment of sleep disorders.
One commenter said any requirement for hours of service standards
and crew endurance management requirements should apply to double-
crewed overnight boats and should not apply to ``dinner bucket'' or
harbor boats.
We received two comments stating that the Coast Guard should
withdraw its proposal until the following issues are addressed: current
abuses of existing hours-of-service regulations for towing vessel
officers; the lack of any hours-of service regulations for deckhands,
engineers and unlicensed crewmembers; fatigue resulting from these
abuses; and the undermanning of towing vessels as previously
documented.
Another commenter said the NPRM included no mention of previous
recommendations made by the Towing Safety Advisory Committee (TSAC) on
CEMS and seeks comment on a different approach that was not previously
brought to TSAC's attention.
We received several comments stating that the CEMS research being
conducted by Northwestern University on inland towing vessels should
influence the Coast Guard's direction on watchstanding and CEMS.
Q. Economic Analysis Comments
The Coast Guard received numerous comments from organizations and
individuals regarding the costs and benefits associated with our
proposed subchapter M regulations.
When we published the NPRM in 2011, we were particularly interested
in the economic impact of implementing a TSMS, and whether there were
alternatives to the TSMS and Coast Guard inspection options that could
provide similar benefits at a lower cost.
Many commenters provided details and opinions regarding the costs
and benefits of implementing the new subchapter M requirements. The
comments involved the overall and specific costs and benefits of the
requirements, the economic impact on small entities, and the requests
for flexibilities that could provide relief to towing vessel owners and
operators. We appreciate these comments and have attempted to integrate
them into our Regulatory Analysis (RA). We address the specific topics
in the sections of this preamble below.
1. Costs
We received numerous comments from towing vessel industry
stakeholders regarding the specific costs
[[Page 40079]]
of subchapter M parts as well as general remarks on overall costs of
the new requirements. Many commenters expressed concern over subchapter
M requirements imposing undue costs on vessel owners and operators
without providing any information or further discussion.
One commenter stated the cost of hiring a naval architect for
stability calculations would be in the tens of thousands of dollars per
vessel to comply with construction and arrangement standards, and
verification of compliance with those requirements.
As noted above in section IVI.N, the Coast Guard has added
additional options for verification of compliance with part 144.
Section 144.300(b) now offers three options for an existing vessel
without a stability document to meet part 144 requirements: findings
based on the vessel's operation or a history of satisfactory service,
successful performance on operational tests, or a satisfactory
stability assessment. None of these options would cost this operator
tens of thousands of dollars. For example, the findings based on the
vessel's operation or history of satisfactory service is a
documentation activity that the Coast Guard estimates will require 4
hours of time to compile at a cost of approximately $200. Operational
tests are undertaken as part of a standard inspection if needed at no
additional cost to the operator.
The commenter also believed that additional equipment and
redundancy systems--specifically propulsion, steering and related
controls, electrical installations, pilothouse alerter system and
towing machinery--required by part 143 are unnecessary.
As discussed earlier, part 143 no longer requires redundancy
propulsion or steering for existing vessels, and has eliminated
deferred electrical requirements in proposed Sec. Sec. 143.340 through
143.360 for existing vessels. This final rule does retain a pilothouse
alerter system requirement for towing vessels with overnight
accommodations and alternating watches (shift work), but we have
limited this requirement to towing vessels more than 65 feet in length.
We also retained a requirement for towing machinery (e.g., capstans and
winches) to be designed and installed to maximize control of the tow.
Both the pilothouse alerter system and towing machinery requirements
have a delayed implementation period for existing vessels: 5 years
after the issuance of the first COI for the vessel. For a more detailed
discussion of these two requirements, please see section IV.M above.
One commenter stated that the Coast Guard estimated that bringing a
single towing vessel into compliance with general requirements for
propulsion, steering, and related controls, which appeared in Sec.
143.405 in the NPRM, would cost $20,000 and said that his company spent
$200,000 to replace steering and propulsion systems of a single vessel.
The commenter estimated that to bring his company's 130 vessels into
compliance under subchapter M, they would need to spend millions of
dollars. The commenter also said that several thousand towing vessels
would be affected, as opposed to the Coast Guard estimate of 26 towing
vessels being affected by the Sec. 143.405 requirements.
As discussed earlier, the Coast Guard acknowledges the potential
for higher costs to retrofit existing vessels. In this final rule, the
relevant requirements have been moved to Sec. 143.585 and the
applicability of these requirements has been reduced to only apply to
new vessels (estimated at 88 per year) or those undergoing a major
conversion (estimated at 13 per year) that move tank barges carrying
oil or hazardous materials in bulk. We estimate the incremental cost to
comply with Sec. 143.585 during the design and construction stage for
new vessels or those undergoing major conversion to be $10,000 per
vessel.
Another commenter, referencing the previous commenter's remarks,
estimated that company would incur a cost of $40 million to comply with
subchapter M. This commenter also suggested that subchapter M costs
will be passed along to all the consumers in the U.S. economy thereby
putting the U.S. economy at a disadvantage compared to other world
economies.
The Coast Guard has considered the potential cost impact on
individual companies and the economy in formulating the final rule. We
balanced costs against the beneficial impacts of the rule in reducing
the risk of towing vessel accidents and the resulting consequences,
including fatalities, injuries, and oil spills. Based on information
provided in the comments from the public on the costs of some
requirements, we have revised the applicability of some those
requirements to only newly constructed or refurbished vessels to
mitigate the need for costly retrofits of existing vessels. We have
also added alternative compliance options, such as allowing service
history in lieu of stability tests for some vessels. We believe the
resulting final rule fulfills Congress' mandate to bring towing vessels
under an inspection system to ensure and improve safety, while
minimizing costs and potential impacts on the U.S. economy.
Another commenter expressed concern about the cost of the rule to
vessel owners and operators and stated that the annual user fee could
be ``in the $1,000 to $2,000 range'' for each vessel. The annual fee
for towing vessels inspected under subchapter M will be $1,030. As we
note in section IV.D above, this is the existing annual inspection fee
in 46 CFR 2.10-101 for any inspected vessel not listed in Table 2.10-
101. This will be charged starting a year after the initial COI is
issued and will remain the annual inspection fee until a specific
annual inspection fee for towing vessels is promulgated through a
separate rulemaking.
The same commenter also estimated that the negative impact on the
economy, of (river-canal) lock delays due to towing vessel accidents,
is only $13.89 million of annual economic impact and 0.13 percent of
total downtime, compared to an estimated total negative economic impact
of $10.8 trillion for all downtime on the lock.
The Coast Guard acknowledges that lock delays from towing accidents
may only make up a small fraction of total lock delays. However, that
does not negate the benefit that could be realized through the rule by
improving towing vessel safety, and reducing accidents and the
resulting delays. Analyzing all causes of lock delays and methods for
mitigating those delays not related to towing vessel accidents is
outside the scope of this rulemaking.
One commenter submitted a number of comments on the additional
operational costs due to subchapter M requirements that included the
impact of periodic drydocking which may leave the work force idle,
additional recordkeeping-staff requirements, the limited supply of
shipyards which may increase the amount of time needed for repairs and
drydocking, and increases in lending rates for marine loans from
financial institutions due to actual or perceived risks.
With respect the impact of drydocking, according to a 2013 report,
``For smaller vessels, routine drydocking can be done in the course of
a single day.'' \7\ The Coast Guard assumes 2 days of for each drydock
inspection and has added an estimate of potential lost revenues during
that period. Drydocking can be scheduled in advance with shipyards to
coincide with rest requirements of crew, minimizing the
[[Page 40080]]
potential for workforce idleness or longer waits times.
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\7\ ``Study of Engineering and Naval Architecture Costs for Use
in Regulatory Analysis'', 17 April 2013 by ABS Consulting, page 30.
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The provisions of the rule are intended to improve safety of towing
vessel operations, which over time should reduce actual risks.
One commenter asked for more detail on how the Coast Guard
estimated the annual government costs at $1.4 million. He interpreted
this figure as a need to hire 14 new full time employees.
Coast Guard man-hours are calculated based on assuming only a few
hours per vessel, although it might amount to a large number of hours
considering that the affected population is more than 5,500 towing
vessels. The Coast Guard is flexible with respect to meeting resource
needs and may not hire new full time employees to implement the new
subchapter M program.
Several commenters stated that the preliminary RA underestimated
the various costs of subchapter M. In particular, one commenter
believed that for existing vessels cost in man-hours needed to develop
vessel plans is much higher than the estimate presented in the RA. The
commenter estimated that cost of plan development alone will be as high
as $80,000, as opposed to the Coast Guard estimate of $20,000. In
addition to these costs, the commenter included an estimate of up to
$30,000 for stability review, and $100,000 to verify vessel compliance
with requirements in parts 140 through 144.
The Coast Guard acknowledges the potential for higher costs for
plan development and stability review. As a result, this final rule
does not require an existing vessel to undergo a verification of
compliance with design standards, so there is no plan development cost
for an existing vessel unless that vessel either undergoes a major
conversion or involves a new installation that is not a replacement-in-
kind. In the case of a major conversion, the plans and documentation
needed would be directly related to the scope of the conversion. In the
case of an installation that is not a replacement-in-kind, the plans
needed would be limited to the scope of the installation and to prove
that the vessel meets stability standards. Moreover, the documentation
required is not restricted to traditional drawings; sketches,
schematics, diagrams, specifications, and photographs can be used to
the degree needed to ensure the vessel complies with the standards
used.
The same commenter suggested an alternative approach to these plans
that they estimated would cost no more than $30,000 per vessel: Having
a P.E. conduct a ship check to approve hull structure, piping,
electrical machinery systems and stability test by using in-house
sketches and reviewing vessel structure and systems. The total costs of
the program suggested by this commenter ranged from $150,000 to
$180,000 when added to the other vessel plan costs. The Coast Guard
views the suggested alternative approach to be similar to the surveys
required under the TSMS option and, therefore, to be redundant.
Further, the alternative approach suggested is not really an
alternative since sketches, photographs, and similar documents are
included in the group of sufficient documents needed for review in the
case of either a major conversion or a new installation that is not a
replacement-in-kind on an existing vessel.
Another commenter estimated that the cost of retrofitting an
existing towing vessel to comply with subchapter M ranges from $180,000
to $300,000. This commenter also pointed out the additional cost of a
TSMS, which he noted we estimated to be from $61,000 to $150,000 per
company. The commenter added that none of these estimates accounts for
the economic impact of time spent out of service while a vessel is
being retrofitted.
The Coast Guard acknowledges that the costs to retrofit vessels to
meet certain proposed requirement may have been higher than estimated
in the NPRM. As a result of these higher costs, the Coast Guard has
removed those requirements for existing vessels, although the
requirements are retained for new vessels as the incremental costs for
a new vessel are lower. Removing certain requirements for existing
vessels in Part 143 has the potential to reduce most, or perhaps all,
of the $180,000 to $300,000 costs noted in the comment. With regards to
the TSMS costs, the rule provides the Coast Guard inspection option as
an alternative if developing and implementing a TSMS is deemed too
costly by a vessel owner. In response to this and other comments, the
Coast Guard has included an estimate of lost revenue in the Regulatory
Analysis for the final rule for drydock inspections and activities to
correct deficiencies that exceed 1 day in duration. We have made
certain requirements no longer apply to existing vessels and has made
many other changes to address that concern, as discussed in previous
sections.
One commenter stated that subchapter M would require his company to
change electrical systems on existing vessels at a cost of more than
$75,000 per vessel, and would potentially cost the company $2,700,000
to comply.
While the Coast Guard finds it unlikely that it would cost over
$75,000 to bring a vessel in active service under normal engineering
practice into compliance with subchapter M, the Coast Guard
acknowledges that some of the requirements proposed for electrical
systems that required retrofitting of existing towing vessels could
result in higher costs. In this final rule, we have made many of those
requirements only applicable to new vessels. For more details, see
discussion of electrical systems in section IV.M above.
One commenter estimated his company's average compliance cost to be
$225,000 per vessel or $3.375 million for his entire fleet. A second
commenter, relying on an AWO figure, estimates the cost of the proposed
requirements to be as much as $100,000 per towing vessel. A third
commenter, representing a group of offshore towing vessel owners and
operators, quoted previous comments on compliance costs and provided an
average cost of $180,000 to $300,000 per vessel.
The Coast Guard appreciates the information from commenters on the
potential costs of the proposed requirements in the NPRM. Given the
potential for higher cost impacts, we have re-evaluated the
requirements in the proposal to identify opportunities to minimize
costs while still achieving risk reduction. As described previously, we
have provided opportunities for lower-cost compliance options for some
requirements and changed the applicability of some requirements so that
existing vessels would not have to undergo costly retrofits. The Coast
Guard estimates that the average cost of compliance per vessel during
the phase-in period is $16,267 with an additional $5,045 cost per
company. The deficiency data from the Bridging Program and towing
vessel boardings, which represents over 99 percent of the towing vessel
fleet, indicates that many deficiencies are relatively rare (5 percent
or less of vessels), making it unlikely that a vessel would incur the
cost of every regulatory requirement.
Finally, other commenters stated that there are many hidden or
unaccounted-for costs that the Coast Guard did not incorporate into its
preliminary RA. These hidden costs are the same costs mentioned by a
previous commenter: Lost revenues and wages due to periodic inspections
and repairs (including travel to inspection locations), crew costs to
prepare for the inspection and undergo the questioning during the audit
or survey, and management costs to oversee the TSMS and inspection
scheduling.
[[Page 40081]]
Based on these and other comments, the Coast Guard acknowledges
that potential for lost revenue and has added an estimate of lost
revenues for drydocking and certain repairs (please see Section 2.5 of
the Regulatory Analysis for details).
With respect to costs to prepare for and undergo inspections, the
Coast Guard estimates 40 hours of time to prepare for and undergo an
inspection, which could be accomplished by the owner, operator, crew,
or a combination. We have used the owner or operator wage rate to value
the opportunity cost, which would be a slight over-estimate if crew
instead performed the activities, which includes scheduling the
inspections.
With regard to management costs to oversee a TSMS, the NPRM
regulatory analysis provided an overall cost estimate for a TSMS that
included management costs. For the final rule, the Coast Guard does not
expect management costs for a TSMS to be incrementally different than
management costs for an existing Safety Management System.
Additionally, one commenter believed that the preliminary RA did
not account for increased shipping rates and transportation costs for
industries dependent on river transportation.
The Coast Guard has added an evaluation of the potential for
increased shipping rates and transportation costs in Appendix J of the
Regulatory Analysis. The average cost per vessel of the final rule on a
daily basis represents an increase of 0.7 percent to 2.75% of barge
daily operating costs, exclusive of fuel costs. The ability of towing
vessel owners to pass along these cost increases to shippers will
depend on many factors that make up the elasticity of demand, which
will vary depending on the cargo, route, and transportation
alternatives available. Towing vessels and barges typically carry
commodities in bulk, including coal, petroleum, crude materials (such
as forest products, sand, gravel, ores, scrap, and salt), and food and
farm products (Figure J-1). The analysis of the impact of the increase
in towing vessel daily operating costs on the shippers will be
different for each commodity and route. An analysis of shipping rates
for grain indicates that barge shipping rates are volatile, sometimes
doubling from one year to the next, reacting quickly to sudden changes
in export demand, weather constraints on the rivers, or larger-than-
expected crops. The final rule requirements are expected to represent
average increases in operating costs of 0.7 to 2.75 percent, only a
small fraction of normal variability in rate. The market and shippers
have adapted to fluctuations in shipping rates, so that increases of
the size that may result from the final rule are within normal
variations.
Further, the amount of increase in costs will vary from company to
company. For example, many companies already have a TSMS, so this
regulation would have a lesser impact on those companies cost structure
than those companies that don't have one. The final rule brings all
towing companies up to a minimum standard of safety and erodes the
competitive advantages of those companies underinvesting in safety
measures. By reducing accidents, incidents and casualties and resulting
impacts including delays, the final rule may also increase the
dependability and timeliness of shipping by barge and perhaps mitigate
some limited aspects of the volatility of rates.
2. Benefits
We received many comments in support of the proposed rule. Many
commenters said that SMSs are cost-beneficial and might lead to
quantifiable benefits. Commenters suggested that SMSs might lead to
benefits such as fewer vessel accidents and personal injuries, which
would mean cost savings from reduced insurance premiums and avoidance
of expenses such as vessel repairs and time out of service. However, no
commenter provided any data or analysis that would directly quantify or
monetize such benefits.
Numerous commenters, while agreeing with the proposed requirements
in principle, expressed a concern that the costs of complying with
subchapter M would exceed the benefits and should be either avoided
altogether or mitigated by following a risk-based approach. The
majority of these commenters felt that benefits should be justified by
each towing vessel's individual casualty history and risk. For example,
a vessel that has not been involved in any accident but is not
compliant with some or all of the requirements of subchapter M should
not be considered a risk to the maritime industry and should be granted
exemption or grandfathered from some or all of subchapter M
requirements.
The Coast Guard agrees in part. The regulatory impact analysis we
provide in the docket discusses at length why and how owners and
operators of regulated entities will benefit from the requirements of
the final rule. The fact that no incident has occurred yet on a
particular vessel, especially one that does not comply with the
requirements of the final rule, does not mean that the vessel does not
present any risk to the maritime industry. In the next comment section,
we addressed requests to obtain relief from certain costs commenters
deemed unnecessary and will point to accomodations and flexibilities
this final rule provides.
3. Flexibilities To Provide Relief to Towing Vessel Owners and
Operators
We received numerous comments from the towing vessel owners and
operators requesting greater flexibility in the rule to reduce its
costs to them. They varied from full exemption from all subchapter M
regulations to grandfathering on specific requirements. These comments
are addressed in this section.
One commenter requested that the Coast Guard grant his company
either an exemption from all requirements of subchapter M or an
extension of 20 years of grandfathering on existing equipment on board
his towing vessels. Another commenter requested some form of
grandfather clause for existing fleets from proposed Sec. Sec. 143.340
through 143.360 electrical system requirements citing complete rewiring
costs at $150,000 to $210,000 for each vessel. Similarly, one
commenter, without being specific, suggested that many requirements
relating to mechanical and electrical equipment and structural
standards for small operators should be relaxed or eliminated. Also,
the AWO recommended that the Coast Guard delete sections on electrical
system requirements in the final rule. Another commenter argued that
subchapter M regulations are unnecessary and asked for an exemption or
extension for longtime existing companies that have always operated in
full compliance with existing regulations because these new regulations
may force them out of business.
The Coast Guard believes it inappropriate to grant an exemption
from all new requirements under subchapter M or grandfathering of 20
years for existing equipment. However, the Coast Guard agrees that some
of the requirements for machinery and electrical systems in part 143
may have been too burdensome and were unnecessary for existing vessels,
so they have been removed from this final rule.
One commenter suggested that coal and grain barge handlers, which
are generally small businesses, should not have the same TSMS
requirements as larger companies. Another commenter asked Coast Guard
to provide a template for a scaled-down version of a TSMS that might be
less overwhelming for small towing vessel operations. A third
[[Page 40082]]
commenter suggested that small operators should not be required to
implement and maintain certain parts of the TSMS, such as the
Behavioral-Based Safety program.
In the final rule, TSMS requirements are neither modified for
different classes of towing vessels nor scaled down or exempted for
small towing vessel operators. However, as previously noted, the TSMS
is scalable. It can be tailored to the operation of a small company and
simplified to address a limited set of assets, process, and personnel.
For a small business operator with a fleet of one or two vessels the
TSMS may be a short document. Further, owners and operators can choose
the Coast Guard inspection option.
Behavior-based safety has been described as an approach that
focuses on what people do, analyzes why people take these actions, and
then applies a research-supported intervention strategy to obtain a
more desired outcome. (Geller, E. Scott, 2004). Subchapter M does not
specifically prescribe the use of behavior-based safety to address
specific elements of the TSMS, however some companies have chosen to
use this approach to help modify employees behaviors to enhance safety
within their organization.
We do not believe a template is needed to comply with TSMS
requirements. As discussed in previous sections, we have clarified TSMS
requirements in this rule and we intend to issue guidance documents
related to TSMSs and TPOs as necessary, and these guides may contain
examples of such documents.
One commenter stated that the TSMS should be the only approved
method (to obtain a Certificate of Inspection) under the final rule and
recommended that the Coast Guard option be removed because a TSMS is
scalable and can be developed in a cost-effective manner that many
small companies can adapt to.
The Coast Guard disagrees that the TSMS should be mandatory.
Although we recognize that the TSMS is scalable and can be developed in
a cost-conducive manner, some towing companies may lack the resources
or expertise to develop and implement a TSMS. The Coast Guard
inspection option is intended to provide greater regulatory flexibility
to such companies, or any that may not want to use a TSMS for other
reasons. As noted above in section IV.B, offering this option is
consistent with one of ABSG Consulting's recommendations in its 2006
final report to the Coast Guard. See docket submission USCG-2006-24412-
0017.
4. Small Business Impacts
We received several comments from small business owners and
operators on the economic impact of subchapter M requirements. Some
were opposed to the new requirements, but did not provide specific
information or data about how they would be impacted. Others requested
either an exemption or grandfathering from some or all of the
requirements, so that they could avoid or mitigate the economic impacts
and continue to serve the towing vessel industry. A discussion of
comments received on small business impacts follows.
Many commenters felt that subchapter M requirements would hurt
small business owners and their employees and could put many small
entities out of business. However, they did not provide specific data
as to how much of an economic burden they expected the new requirements
to place on their operational costs. The most specific comment was that
new recordkeeping requirements alone would mean that the owner or
operator would have to hire one or more new full time workers. Other
commenters estimated the overall costs of subchapter M requirements in
a range of $100,000 to $250,000 per vessel and several million dollars
per company.
Other commenters expressed concern that their companies would not
be able to pay for these unspecified subchapter M requirements, and
therefore, either be forced out of business or be acquired by larger
entities in the towing vessel industry. One commenter argued that
lenders will delay lending and review existing ship mortgages to
reassess their collateral positions, because many owners and operators
of small towing vessel fleets will not be able to afford the costs to
comply with subchapter M requirements. Another commenter stated that
his company would lose the ability to borrow against their boats if
they cannot comply with the new regulations. One commenter estimated
that no less than 20 percent of the aggregate U.S. towing fleet would
be put out of business if the NPRM, as written, is published as a final
rule. However, these commenters did not provide specific data or
information to support their concerns.
The Coast Guard appreciates these comments on the potential
economic impact of the proposed rule on small businesses. Based on
these comments and other comments on the range of compliance costs, we
have re-evaluated the requirements in the proposal to identify
opportunities to minimize impacts on small businesses while still
achieving risk reduction. As described previously, we have provided
opportunities for lower-cost compliance options for some requirements
and changed the applicability of some requirements so that existing
vessels would not have to undergo costly retrofits. The Coast Guard
estimates that the average cost of compliance per vessel during the
phase-in period is $16,267, with an additional $5,045 cost per company.
The deficiency data from the Bridging Program and towing vessel
boardings (which represents over 99 percent of the towing vessel fleet)
indicates that many deficiencies are relatively rare (5 percent or less
of vessels), making it unlikely that a vessel would incur the cost of
every regulatory requirement.
V. Regulatory Analyses
We developed this final rule after considering numerous statutes
and executive orders related to rulemaking. Below, we summarize our
analyses based on these statutes or executive orders.
A. Regulatory Planning and Review
E.O.s 12866 (``Regulatory Planning and Review'') and 13563
(``Improving Regulation and Regulatory Review'') direct agencies to
assess the costs and benefits of available regulatory alternatives and,
if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity).
E.O. 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
This final rule is a significant regulatory action under section
3(f) of E.O. 12866. The Office of Management and Budget (OMB) has
reviewed it under that Order. It requires an assessment of potential
costs and benefits under section 6(a)(3) of E.O. 12866. A final
assessment is available in the docket, and a summary follows.
A Final Regulatory Analysis (RA) is available in the docket where
indicated under the ``Public Participation and Request for Comments''
section of this preamble. A summary of the RA follows:
This rulemaking implements section 415 of the Coast Guard and
Maritime Transportation Act of 2004. The intent of the final rule is to
promote safer work practices and reduce casualties on towing vessels by
ensuring that
[[Page 40083]]
inspected towing vessels adhere to prescribed safety standards and
adopted safety management systems. The Coast Guard recognizes that
establishing minimum standards for the towing vessel industry is
necessary. Vessel operation, maintenance, and design must ensure the
safe conduct of towing vessels. The final rule improves the safety and
efficiency of the towing vessel industry.
In this final rule, the Coast Guard requires towing vessels subject
to this rulemaking to undergo annual Coast Guard inspections or, in the
alternative, be part of a safety management system. If the safety
management system option is chosen, the rule requires companies that
operate inspected towing vessels to create a TSMS, continue with
existing systems that comply with the provisions of the International
Safety Management (ISM) Code, or continue under another system the
Coast Guard determines to be equivalent to the TSMS.
This final rule would allow each towing vessel organization to
customize its approach to meeting the requirements of the regulations,
while it provides continuous oversight using audits, surveys,
inspections, and reviews of safety data. This would improve the safety
of towing vessels and provide greater flexibility and efficiency for
towing vessel operators. As a result of this rulemaking, operators
would be able to call upon third parties or the Coast Guard to conduct
compliance activities when and where they are needed.
Although the 2004 Act added towing vessels to the list of vessels
subject to Coast Guard inspection and the 2010 Act directed the
Secretary to issue a final rule on the inspection of towing vessels
containing towing safety management system provisions, they did not
prescribe how this inspection program must be designed, developed and
implemented. Therefore, we consider all the new parts under the new
subchapter M as discretionary, but integral to the safe operations of
towing vessels and necessary to fulfill Congress' intent in the 2004
and 2010 Acts.
Additionally, when towing vessels receive their Certificates of
Inspection this will trigger the following requirements outside of
subchapter M for inspected vessels:
Part 136, Certification will require the assessment of
user fees, per 46 U.S.C. 2110 and 46 CFR 2.10-101, Table 2.10-101;
(requiring user fee for vessel inspection services and certifications).
46 CFR 15.820(a) requires a Chief Engineer on certain
inland towing vessels.
33 CFR 155.710(e)(1) requires a Person-in-Charge (PIC) for
certain fuel transfers on towing vessels to be credentialed officer or
to hold an MMC with a Tankerman-PIC endorsement.
See the ``Discussion of Final Rule'' section for a detailed
discussion of this final rule and see the RA for a detailed discussion
of costs, benefits and alternatives considered. Table 3 summarizes the
impacts of this rulemaking.
Table 3--Summary of Affected Population, Costs and Benefits
------------------------------------------------------------------------
Category Final rule
------------------------------------------------------------------------
Populations:
Applicability................. All U.S. flag towing vessels engaged
in pushing, pulling, or hauling
alongside, with exceptions for work
boats and limited service towing
vessels.
Affected Population........... 5,509 vessels.
1,086 companies.
Costs:
Total Costs ($ millions, 7% $41.5 (annualized).
discount rate). $291.2 (10-year).
Industry Costs ($ millions, 7% $32.7 (annualized).
discount rate). $229.6 (10-year).
Net Government Costs ($ $8.8 (annualized).
millions, 7% discount rate). $61.6 (10-year).
Benefits:
Benefits ($ millions, 7% $46.4 (annualized, millions).
discount rate). $325.6 (10-year).
Unquantified Benefits......... Reduced congestion and delays from
lock, bridge and waterway closures.
Reduced risk of low and medium
severity towing vessel accidents
and accidents with limited
information in the case report.
------------------------------------------------------------------------
Table 4 summarizes the changes in the final rule as we moved from
the NPRM to this final rule, and Table 5 below summarizes the changes
in the RA. These changes to the RA came from either policy changes,
public comments received after the publication of the NPRM, or simply
from updating the data and information that informed our regulatory
analysis.
Table 4--Summary of Notable Changes from NPRM to Final Rule
----------------------------------------------------------------------------------------------------------------
Impact on regulatory
NPRM Section No. FR Section No. Summary analysis
----------------------------------------------------------------------------------------------------------------
1.03-55 Added section: ``Appeals from decisions Added costs for appeals.
or actions under subchapter M of this
chapter''.
15.535..................... 15.535 Clarified that the requirements of Sec. Included cost of
15.515 apply in addition to those of compliance with Sec.
this section, and that the requirements 15.515.
of this section apply regardless of
assistance towing or being under 200
GRT.
136.172 Maintains current requirements for Maintains existing costs
existing towing vessels for 2 years or for existing vessels.
until the vessel obtains a COI,
whichever period is shorter.
138.310.................... 138.310 Added ISO 9001-2008 as an option for No change--adds
auditor/assessor compliance. compliance flexibility.
[[Page 40084]]
138.505.................... 138.505 Edited section to specify where in the No change--clarifies who
Coast Guard audits should be sent. receives reports.
139.110.................... 139.110 Introduced delineation that recognized No change--adds
classification societies qualify to do compliance flexibility.
TPO audits and authorized
classification societies to do as TPO
surveys.
139.120.................... 139.120 Changed address to which applications No change--clarifies who
should be sent, added paragraph receives reports and
requiring applications to include assures availability of
information about the organization's personnel.
means of assuring the availability of
its personnel.
139.130.................... 139.130 For auditors, added ``licensed mariner'' No change--adds
to a list of types of relevant marine compliance flexibility.
experience, and added ISO 9001-2008 as
an option in addition to ISO 9001-2000.
139.160.................... 139.160 Removed paragraph saying that the Coast No change--adds
Guard may require a replacement of a compliance flexibility.
third-party auditor.
140.435.................... 140.435 Deleted requirements for certain vessels Removed costs of AEDs.
to carry automatic external
defibrillators and train crewmembers in
their use.
140.505 and 140.520........ 140.505 Eliminated Sec. 140.520 requirements Greatly reduced costs for
for maintaining personnel hazard keeping records on
exposure and medical records and crewmember health by
revised Sec. 140.505 requirement to limiting them to those
keep records of health and safety associated with
incidents, including any medical incidents, added costs
records associated with the incidents. for records of safety
incidents.
140.605.................... 140.605 Clarified requirements associated with Revised costs to include
stability letter are only applicable to alternative methods of
vessels that already have a stability compliance.
letter, added paragraph requiring all
owners or operators to maintain
watertight integrity and stability.
140.645.................... 140.645 Added paragraph accepting credentialed No change--adds
mariners as meeting the requirements of compliance flexibility.
this section.
140.915.................... 140.915 Added examinations and tests, and fire- Revised costs for TVR.
detection and fixed fire-extinguishing
systems to the list of items that must
be recorded in the TVR, and specified
requirements for items recorded
electronically.
141.305.................... 141.305 Changes to Table 141.305: Removed No change--improves
buoyant apparatus and life float readability and
references in cold water operation; referencing;
removed life float and inflatable substitution allowance
buoyant apparatus references in warm provides compliance
water operation; moved inflatable flexibility.
liferaft with SOLAS A pack to bottom of
both cold and warm water operation to
delineate increasing level of safety
hierarchy; and inserted the term
``rigid'' in front of buoyant apparatus
so as not to confuse with inflatable
buoyant apparatus. Added additional
substitution options for survival craft
in Sec. 141.305(d)(2)(ii)-(iv) based
on increasing level of safety hierarchy
of same.
141.330.................... 141.330 Removed reference to Table 141.305 and No change--adds
limitations on approval of survival compliance flexibility.
craft starting in 2015, added the
option of using a skiff for towing
vessels that only operate within 3
miles of shore, rephrased section.
141.340.................... 141.340 Replaced reference to 46 CFR 199.620(c) No change--adds
with a reference to several approval compliance flexibility.
series, specified and rephrased
requirements for lifejackets in TSMS.
141.360.................... 141.360 Replaced reference to 46 CFR 199.70 with No change--adds
a reference to several approval series, compliance flexibility.
specified and rephrased requirements
for lifebuoys in TSMS.
142.215.................... 142.215 Rephrased for clarity, added paragraph No change--adds
allowing approval by the Coast Guard, compliance flexibility.
OCMI, TPO, or a NRTL of new
installations of fire-extinguishing or
fire-detection equipment.
142.225.................... 142.225 Rephrased for clarity, added FM 6050 as No change--adds
an acceptable standard for storage compliance flexibility.
cabinet design.
143.200.................... 143.200 Delayed implementation of part 143 Removed certain costs for
requirements for existing vessels, existing vessels, delays
consolidated applicability and other costs.
grandfathering requirements from other
subparts into one section.
143.245.................... 143.230 Rephrased for clarity, added Added costs for alarms at
requirements for alarms at operating additional operating
stations, removed language describing stations.
possible exceptions.
143.420.................... 143.595 Renamed, deleted requirements for Removed costs for
propulsion engine fuel lines and existing vessels.
independent auxiliary steering systems.
144.315.................... 144.300, Added possible standards for an existing Revised costs to include
144.315 vessel without a stability document to alternative methods of
meet. compliance.
----------------------------------------------------------------------------------------------------------------
Table 5--Changes in Regulatory Analysis From NPRM to Final Rule
------------------------------------------------------------------------
Element of regulatory analysis Reason changed Explanation of change
------------------------------------------------------------------------
Credentialing requirements Public comment... Added cost estimate
under part 15. for requirements in
part 15 that are
triggered when
vessel becomes
``inspected''. 10-
year undiscounted
estimated at $2.8
million.
[[Page 40085]]
Parts 141 Lifesaving and 142 Public comment... Added cost estimates
Fire Protection. for requirements in
Parts. 10-year
undiscounted
estimated at $27.8
million for Part 141
and $7.0 million for
Part 142.
Part 136 Certification and Policy change.... Added cost estimates
Part 137 Vessel Compliance. for appeals.
Part 140 Operations........... Public comment... Added costs for
certain operational
requirements,
including navigation
assessments.
Machinery and electrical Policy change.... Grandfathering of
systems equipment under part existing vessels or
143. vessels whose
construction began
before the effective
date of the final
rule for Sec. Sec.
143.555, 143.560,
143.565, 143.570,
143.575, 143.585,
143.605. 10-year
undiscounted
estimated cost is
$41.4 million in the
final rule and could
exceed $300 million
if not grandfathered
(see Alternative 3).
Construction and arrangement Policy change.... Grandfathering of
under part 144. existing vessels or
vessels whose
construction began
before the effective
date of the final
rule for Sec. Sec.
144.135 and
144.145(b). 10-year
undiscounted
estimated cost is
$5.4 million in the
final rule.
Affected population........... Update to reflect Reviewed current data
current fleet sources on towing
composition and vessel fleet and
more ownership and
comprehensive increased affected
data sources. population estimate
to 5,509 (from 5,208
in the NPRM).
Costs of equipment or Update to reflect Collected current
activities. current prices. price data or
updated prices used
in NPRM by CPI.
Public comment... Incorporated public
estimates for
drydock inspections
in the range of
costs. Added
estimate for lost
revenues during
certain activities.
Wages......................... Updated BLS data. Revised labor cost by
using May 2013 BLS
data.
Benefit valuation............. Updated value of Updated VSL and
a statistical injury valuation to
life (VSL) and reflect current
injuries values. guidance.
Accident analysis............. Updated data from Reflected most recent
recent years. 12 years of accident
history (2002 to
2013).
Impacts of Rule Requirements Public comment... Added assessment of
on Cost to Shippers. cost to shippers in
Appendix J.
------------------------------------------------------------------------
Affected Population
We estimate that 1,086 owners and managing operators (companies)
would incur additional costs from this rulemaking. The rulemaking would
affect a total of 5,509 vessels owned and operated by these companies.
Our cost assessment includes existing and new vessels.
Costs
We estimated costs resulting from the addition of subchapter M and
costs in other subchapters that result from the inclusion of towing
vessels as inspected vessels, to industry and government. During the
initial phase-in period (years 1 and 2), we estimate the annual cost to
industry from subchapter M requirements of the rulemaking to range from
$15.8 million to $26.5 million (non-discounted). After the initial
phase-in, the annual costs to industry from subchapter M requirements
range from $19.2 million to $56.4 million (non-discounted). We estimate
the total present value cost to industry from subchapter M requirements
over the 10-year period of analysis is $227.7 million, discounted at 7
percent, and $286.8 million, discounted at 3 percent. Over the period
of analysis, we estimate the annualized costs to be $32.4 million at 7
percent and $33.6 million at 3 percent. Table 6 summarizes the costs of
this final rule to industry for subchapter M requirements.
Table 6--Summary of Subchapter M Costs to Industry
[$ Millions]
----------------------------------------------------------------------------------------------------------------
Discounted
Year Undiscounted -------------------------------
7% 3%
----------------------------------------------------------------------------------------------------------------
1............................................................... $26.5 $24.8 $25.7
2............................................................... 15.8 13.8 14.9
3............................................................... 19.2 15.7 17.6
4............................................................... 22.6 17.2 20.1
5............................................................... 33.0 23.6 28.5
6............................................................... 35.7 23.8 29.9
7............................................................... 44.5 27.7 36.2
8............................................................... 56.4 32.8 44.5
9............................................................... 46.0 25.0 35.3
10.............................................................. 45.8 23.3 34.1
-----------------------------------------------
Total *..................................................... 345.6 227.7 286.8
Annualized...................................................... 32.4 33.6
----------------------------------------------------------------------------------------------------------------
* Values may not total due to rounding.
[[Page 40086]]
Additional costs to industry for requirements outside of subchapter
M will result from the triggering of certification for persons in
charge during oil transfer requirements by designating towing vessels
as ``inspected''. We estimate the total present value cost of the
industry non-subchapter M requirements over the 10-year period of
analysis to be $1.9 million, discounted at 7 percent, and $2.4 million,
discounted at 3 percent. Over the period of analysis, we estimate the
annualized industry costs for requirements outside of subchapter M to
be $0.3 million at 7 percent and 3 percent. Table 7 summarizes the
costs of this final rule to industry.
Table 7--Summary of Cost to Industry for Requirements Outside of Subchapter M
[$ Millions]
----------------------------------------------------------------------------------------------------------------
Discounted
Year Undiscounted -------------------------------
7% 3%
----------------------------------------------------------------------------------------------------------------
1............................................................... $0.0 $0.0 $0.0
2............................................................... 0.0 0.0 0.0
3............................................................... 0.4 0.4 0.4
4............................................................... 0.4 0.3 0.4
5............................................................... 0.4 0.3 0.3
6............................................................... 0.4 0.3 0.3
7............................................................... 0.0 0.0 0.0
8............................................................... 0.4 0.3 0.3
9............................................................... 0.4 0.2 0.3
10.............................................................. 0.4 0.2 0.3
-----------------------------------------------
Total *..................................................... 2.8 1.9 2.4
Annualized...................................................... .............. 0.3 0.3
----------------------------------------------------------------------------------------------------------------
* Values may not total due to rounding
We estimate the total cost to industry over the 10-year period of
analysis to be $229.6 million, discounted at 7 percent, and $289.1
million, discounted at 3 percent. Over the period of analysis, we
estimate the annualized costs to industry to be $32.7 million at 7
percent and $33.9 million at 3 percent. Table 8 shows these estimates.
Table 8--Summary of Total Cost to Industry
[$ Millions]
----------------------------------------------------------------------------------------------------------------
Discounted
Year Undiscounted -------------------------------
7% 3%
----------------------------------------------------------------------------------------------------------------
1............................................................... $26.5 $24.8 $25.7
2............................................................... 15.8 13.8 14.9
3............................................................... 19.7 16.1 18.0
4............................................................... 23.0 17.5 20.4
5............................................................... 33.4 23.8 28.8
6............................................................... 36.1 24.0 30.2
7............................................................... 44.5 27.7 36.2
8............................................................... 56.8 33.1 44.8
9............................................................... 46.4 25.3 35.6
10.............................................................. 46.2 23.5 34.4
-----------------------------------------------
Total *..................................................... 348.4 229.6 289.1
Annualized...................................................... .............. 32.7 33.9
----------------------------------------------------------------------------------------------------------------
* Values may not total due to rounding
We anticipate that the government will incur costs. For towing
vessels that choose to comply with annual Coast Guard inspections, the
government will incur costs to conduct those inspections. For other
vessels choosing the TSMS option to comply, the government will incur
costs to review applications for a TSMS, conduct random boardings and
compliance examinations, and oversee third parties.
Table 9A displays the full cost to the government. We estimate the
total present value full cost to government over the 10-year period of
analysis to be $85.6 million discounted at 7 percent and $110.6 million
discounted at 3 percent. Annualized full costs to government are about
$12.2 million at 7 percent and $13.0 million at 3 percent discount
rates.
[[Page 40087]]
Table 9A--Summary of Full Cost to Government
[$ Millions]
----------------------------------------------------------------------------------------------------------------
Discounted
Year Undiscounted -------------------------------
7% 3%
----------------------------------------------------------------------------------------------------------------
1............................................................... $0.1 $0.1 $0.1
2............................................................... 0.1 0.1 0.1
3............................................................... 9.5 7.7 8.7
4............................................................... 12.5 9.5 11.1
5............................................................... 15.4 11.0 13.3
6............................................................... 17.2 11.4 14.4
7............................................................... 20.7 12.9 16.8
8............................................................... 20.5 11.9 16.1
9............................................................... 20.0 10.9 15.3
10.............................................................. 19.7 10.0 14.7
-----------------------------------------------
Total....................................................... 135.6 85.6 110.6
Annualized...................................................... .............. 12.2 13.0
----------------------------------------------------------------------------------------------------------------
The user fee paid by towing vessel owners and operators for
obtaining the COI is a transfer from industry to the government. To
avoid double-counting of costs, we account for this transfer by
subtracting the amount of the user fee to be collected from the
government costs to calculate government costs net of the transfer.
Table 9B shows the amount of the user fees to be collected over the 10-
year analysis period.
Table 9B--Transfer: Undiscounted User Fees to be Collected by the
Government in Part 136 by Year
[$ million]
------------------------------------------------------------------------
Total annual
Total number user fees
Year of user fees transferred
collected to govt. * ($
million)
------------------------------------------------------------------------
1....................................... 0 $0.000
2....................................... 0 0.000
3....................................... 1,604 1.652
4....................................... 3,150 3.245
5....................................... 4,352 4.483
6....................................... 5,509 5.674
7....................................... 5,509 5.674
8....................................... 5,509 5.674
9....................................... 5,509 5.674
10...................................... 5,509 5.674
Total............................... .............. 37.751
------------------------------------------------------------------------
* The total annual user fees are calculated by multiplying the total
number of user fees collected by the user fee, $1,030.
We estimate the total present value cost to government net of the
transfer via user fee over the 10-year period of analysis to be $61.6
million discounted at 7 percent and $79.5 million discounted at 3
percent. Annualized net government costs are about $8.8 million at 7
percent and $9.3 million at 3 percent discount rates. Table 9C
summarizes the net costs of this rule to government after deducting the
user fee transfer.
Table 9C--Summary of Government Cost Net of Transfer Payment
[$ Millions]
----------------------------------------------------------------------------------------------------------------
Discounted
Year Undiscounted -------------------------------
7% 3%
----------------------------------------------------------------------------------------------------------------
1............................................................... $0.1 $0.1 $0.1
2............................................................... 0.1 0.1 0.1
3............................................................... 7.8 6.3 7.1
4............................................................... 9.2 7.0 8.2
5............................................................... 10.9 7.8 9.4
6............................................................... 11.4 7.6 9.6
7............................................................... 14.9 9.3 12.1
8............................................................... 14.7 8.6 11.6
9............................................................... 14.2 7.7 10.9
10.............................................................. 14.0 7.1 10.4
-----------------------------------------------
[[Page 40088]]
Total *..................................................... 97.3 61.6 79.5
Annualized...................................................... .............. 8.8 9.3
----------------------------------------------------------------------------------------------------------------
* Values may not total due to rounding
We estimate the combined total 10-year present value cost of the
rulemaking to industry and government is $291.2 million discounted at 7
percent, and $368.6 million discounted at 3 percent. The annualized
costs are $41.5 million at 7 percent and $43.2 million at 3 percent.
Table 10 summarizes the total combined costs of this rule.
Table 10--Summary of Total Cost (Subchapter M and Non-Subchapter M Industry Costs, Net Government Costs)
[$ Millions]
----------------------------------------------------------------------------------------------------------------
Discounted
Year Undiscounted -------------------------------
7% 3%
----------------------------------------------------------------------------------------------------------------
1............................................................... $26.6 $24.9 $25.8
2............................................................... 15.9 13.8 14.9
3............................................................... 27.5 22.4 25.1
4............................................................... 32.2 24.5 28.6
5............................................................... 44.3 31.6 38.2
6............................................................... 47.5 31.7 39.8
7............................................................... 59.5 37.0 48.4
8............................................................... 71.5 41.6 56.4
9............................................................... 60.6 33.0 46.5
10.............................................................. 60.2 30.6 44.8
Total *..................................................... 445.8 291.2 368.6
Annualized...................................................... .............. 41.5 43.2
----------------------------------------------------------------------------------------------------------------
* Values may not total due to rounding
Table 11 summarizes the total combined costs of this rule by part.
Table 11--Summary of Total Annualized Cost by Part
------------------------------------------------------------------------
Annualized costs
Part (7%, millions)
------------------------------------------------------------------------
Costs to Industry
136: Certification.................................. $3.4
137: Compliance..................................... 10.8
138: Towing Safety Management System................ 2.0
139: Third-Party Organizations...................... 0.04
140: Operations..................................... 7.3
141: Lifesaving..................................... 3.2
142: Firefighting................................... 0.8
143: Mechanical and Electrical...................... 4.0
144: Construction and Arrangement................... 0.6
-----------------
Total Subchapter M Costs *.......................... 32.4
Non-Subchapter M Costs.............................. 0.3
Total to Industry *................................. 32.7
Net Government Costs................................ 8.8
Total Rule Cost *................................... 41.5
------------------------------------------------------------------------
* Values may not total due to rounding
The total, 10-year undiscounted costs of statutory mandate
requirements are as follows:
$38.1 million for the annual vessel inspection fees under
46 CFR 2.10-101, Table 2.10-101 for vessels requiring a certification
of inspection.
$2.8 million for credentialing requirements outside of
subchapter M that are triggered when a vessel becomes ``inspected''.
Economic Impacts of Towing Vessel Casualties
Towing vessel casualties are incidents (i.e., accidents) that
involve the towing vessel and possibly other vessels such as barges,
other commercial vessels, and recreational vessels. Towing vessel
accidents can cause a variety of negative economic impacts, including
loss of life, injuries, property damage, delays on transportation
infrastructure, and damage to the environment.
Based on Coast Guard Marine Information for Safety and Law
Enforcement (MISLE) data for the recent period of 2002-2013, towing
vessel accidents are associated with 18 fatalities per year. Towing
vessel accidents also result in an average of 37 reportable injuries
per year (for the period of 2002-2013). Table 12 summarizes some of the
negative impacts resulting from towing vessel accidents.
[[Page 40089]]
Table 12--Negative Impacts From Towing Vessel Accidents
[2002-2013]
----------------------------------------------------------------------------------------------------------------
Average
monetary
Impact Total effects Total monetary Average per damage per
damages (in millions) year year (in
millions)
----------------------------------------------------------------------------------------------------------------
Fatalities (See Note 1)........... 217.................. $1,974.700........... 18 $164.558
Injuries.......................... 443.................. $300.145............. 37 25.012
Property Damage (See Note 2)...... 603 incidents with $600.055............. 50 50.005
property damage.
Gallons of Oil Spilled............ 5,192,937 gallons of $408.251 (See Note 3) 432,745 34.021
oil spilled.
------------------------------------------------------
Total Damage.................. ..................... $3,283.151........... .............. 273.596
----------------------------------------------------------------------------------------------------------------
Notes: (1) Fatality values are based on a $9.1 million value of a statistical life referenced in Guidance on
Treatment of the Economic Value of a Statistical Life in U.S. Department of Transportation Analyses, US DOT,
2013, available at http://www.dot.gov/sites/dot.dev/files/docs/VSL%20Guidance%202013.pdf.
(2) Property damage includes property and cargo damages as reported in MISLE.
(3) Oil spilled damages are based on a $254 damage per gallon of oil spilled as indicated by Inspection of
Towing Vessels, Notice of Proposed Rulemaking, Preliminary Regulatory Analysis and Initial Regulatory
Flexibility Analysis, USCG-2006-24412, July 2011, available at http://www.regulations.gov/#!documentDetail;D=USCG-2006-24412-0002 adjusted for actual costs for certain high volume gallons of oil
spilled gallons of oil spilled spills reported to the National Pollution Funds Center.
Benefits of the Towing Vessel Final Rule
The Coast Guard developed the requirements in the rule by
researching both the human factors and equipment failures that
contribute to the risk of towing vessel accidents. We believe that the
rule would comprehensively address a wide range of risks of towing
vessel accidents and supports the main goal of improving safety in the
towing industry. The primary benefit of the final rule is an increase
in vessel safety and a resulting decrease in the risk of towing vessel
accidents and their consequences.
Based on Coast Guard investigation findings for towing vessel
accident cases from 2002-2013, we estimate that the final rule would
lead to significant reductions in fatalities, injuries, property
damaged, and oil spilled. These improvements in safety are expected to
occur over a 10-year period as the various provisions of the final rule
are phased-in. Accounting for this phase-in of requirements and
resulting benefits, we estimate total 10-year discounted benefits at
$325.6 million discounted at 7 percent and $403.8 million discounted at
3 percent. Over the same period of analysis, we estimate annualized
benefits of the final rule to be $46.4 million at a 7 percent discount
rate and about $47.3 million at a 3 percent discount rate,
respectively. Table 13 displays the monetized benefits of this final
rule associated with reducing fatalities, injuries, property damage,
and oil spilled, resulting from towing vessel accidents.
Table 13--Total Benefits
[$ Millions] *
----------------------------------------------------------------------------------------------------------------
Total
-----------------------------------------------
Year Discounted benefits
Undiscounted -------------------------------
benefits 7% 3%
----------------------------------------------------------------------------------------------------------------
1............................................................... $26.2 $24.5 $25.4
2............................................................... 26.2 22.9 24.7
3............................................................... 50.8 41.4 46.5
4............................................................... 52.0 39.7 46.2
5............................................................... 53.2 37.9 45.9
6............................................................... 54.4 36.3 45.6
7............................................................... 54.4 33.9 44.3
8............................................................... 54.4 31.7 43.0
9............................................................... 54.4 29.6 41.7
10.............................................................. 54.4 27.7 40.5
-----------------------------------------------
Total....................................................... 480.6 325.6 403.8
Annualized...................................................... .............. 46.4 47.3
----------------------------------------------------------------------------------------------------------------
* Values may not total due to rounding.
[[Page 40090]]
Table 14 displays the annualized benefits broken out by Part. Part
140 accounts for the largest share of the benefits at $17.1 million
annualized at a 7 percent discount rate.
Table 14--Total Annualized Benefits by Part
[$ millions] *
------------------------------------------------------------------------
Annualized
quantified
Part benefits
---------------
7%
------------------------------------------------------------------------
136-138................................................. $3.1
139..................................................... 1.1
140..................................................... 17.1
141..................................................... 4.4
142..................................................... 1.2
143..................................................... 11.1
144..................................................... 8.3
---------------
Total Rule Benefits................................. 46.4
------------------------------------------------------------------------
* Values may not total due to rounding.
Unquantified Benefits
These estimates do not include the value of benefits that we have
not quantified, including preventing delays and congestion due to
towing vessel accidents. We are unable to monetize the value of
preventing other consequences of towing vessel accidents, including
delays and congestion, due to a lack of data and information. However,
as discussed in the Regulatory Analysis available in the docket, the
potential value of other benefits could be substantial if towing vessel
accidents cause long waterway, bridge, or road closures. For large
accidents that result in long delays, the economic consequences may
include the following:
Productivity losses and operating costs for stalled barge
and other traffic;
Delays in the acquisition of production inputs that can
impact timely operation of manufacturing or other processes;
Blockages of U.S. exports that can result in decreased
revenue from importing foreign companies;
Loss of quality for industries dealing with time sensitive
products or products with a limited shelf life, such as commercial
fishing seafood processors, seafood dealers, or other food processors
and manufacturers; and
Reduced recreational opportunities, resulting in social
welfare losses.
To estimate the amount of delay caused by towing vessel incidents,
we examined the 20 most severe recorded towing vessel incidents from
MISLE and sample cases for these other consequences and quantified
their effects. Of the 20 incidents we were able to use archived journal
sources and Coast Guard incident reports to estimate number of vessels
subject to a delay and total hours of delay for 13 incidents. Based on
our analysis detailed in the Regulatory Analysis, these 13 incidents
resulted in 28,883 vessel hours of delay. If we apply a low end
estimate of the costs to operate a towing vessel per hour, the delay
costs for these 13 incidents at least exceeded $10 million. However, we
do not have sufficient information to scale up these examples to a
nationwide estimate.
In addition, the evaluation of potential benefits from reducing the
risk of accidents is dependent upon the amount of information and
findings in the report of the incident found in MISLE. The benefit
estimates do not include accidents for which there was a lack of
detailed information in the case report to make a risk reduction
determination, resulting in an underestimation of benefits. Lack of
data in the cases of the low and medium severity incidents, implies
that our benefits are underestimated.
Comparison of Costs to Benefits
The estimate for the total costs of the rule is $41.5 million
(annualized at a 7 percent discount rate). The estimate for monetized
benefits is $46.4 million (annualized at a 7 percent discount rate),
based on the mitigation of risks from towing vessel accidents in terms
of lives lost, injuries, oil spilled, and property damage. Subtracting
the monetized costs from the monetized benefits yields a net benefit of
$4.9 million. We also identified, but did not monetize, other benefits
from reducing the risk of accidents that have secondary consequences of
delays and congestions on waterways, highways, and railroads.
As shown in Table 15 below, by part, the operational requirements
in part 140 have the highest net benefits at $9.8 million. Parts 139
and 141 through 144 also have positive net benefits. Parts 136 through
138 have negative net benefits of -$13.2 million. Parts 136 through 138
contain the requirements for inspection, obtaining COIs, and TSMSs.
These activities facilitate the enforcement of the requirements in the
other parts, so it is difficult to separate benefits solely for the
activities in Parts 136 through 138.
Table 15--Comparison of Benefits and Costs by Part Annualized, 7 Percent
[$ millions]
----------------------------------------------------------------------------------------------------------------
Part Description Costs Benefits Net benefits
----------------------------------------------------------------------------------------------------------------
Costs to Industry
----------------------------------------------------------------------------------------------------------------
136-138............................ Certification, Inspection, $16.3 $3.1 ($13.2)
TSMS.
139................................ TPOs....................... 0.04 1.1 1.1
140................................ Operations................. 7.3 17.1 9.8
141................................ Lifesaving................. 3.2 4.4 1.2
142................................ Fire Prevention............ 0.8 1.2 0.4
143................................ Mechanical and Electrical.. 4.0 11.1 7.1
144................................ Construction and 0.6 8.3 7.7
Arrangements.
Non-subchapter M Costs............. ........................... 0.3 * NQ * NQ
Government Cost.................... ........................... 8.8 * NQ * NQ
----------------------------------------------------------------------------
Total Combined Cost of Final ........................... 41.5 46.4 4.9
Rule.
----------------------------------------------------------------------------------------------------------------
* NQ = Not quantified
Totals may not add due to rounding.
Overall, the regulatory analysis indicates that the preferred
alternative provides owners and managing operators of towing vessels
the ability to customize compliance to their individual business
models, move the industry into inspected status, and improve safety.
[[Page 40091]]
Alternatives
At all stages of this rulemaking, including the development of the
NPRM, review of public comments, and the preparation of this final
rule, we considered numerous alternatives to the rule requirements.
During this process, we weighed the burden posed by a requirement or
group of requirements against baseline risk and potential risk
reduction with the goal of improving safety of crew and public, and
enhancing environmental protection, while minimizing the cost burden on
industry and government. We have quantified the costs and benefits for
three alternatives that are illustrative of the types and range of the
many alternatives that considered throughout the rulemaking process.
The alternatives explored include the following:
Alternative 1: Limits the regulatory requirements to only
the minimum required to meet the statutory requirements of inspecting
towing vessels. Parts 136 to 139 are retained, related to conducting
inspections, issuing COIs, using TSMS's and overseeing third parties.
All operational, fire and safety, equipment and design requirements are
removed.
Alternative 2: Delays the operational requirements (Part
140) from becoming effective in Year 3 of the rule (after the 2-year
implementation period) to after the first round of initial inspections
and issuance of COIs is complete (Year 6).
Alternative 3: Does not ``grandfather'' existing vessels
for certain requirements in part 143 (i.e., these requirements would
apply to both new and existing vessels).
Alternatives 1-3 have net costs, compared to net benefits under the
preferred alternative. A summary of the costs and benefits of the
alternatives are presented in Table 16.
Table 16--Summary of Alternatives
[$ millions, 7% discount rate]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized Annualized
Alternative Summary cost benefits Net benefits or net costs *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Preferred Alternative: Final rule........ Full implementation of parts 136-144. $41.5 $46.4 $4.9 net benefits.
Alternative 1: Parts 136-139: Inspection/ Full implementation of parts 136-139. $25.4 $4.2 ($21.2) net costs.
TSMS only. Removes all other requirements.
Alternative 2: Delayed Implementation of Full implementation of parts 136-139, $38.2 $21.1 ($17.1) net costs.
part 140. parts 141-144. Delayed
implementation of part 140.
Alternative 3: No grandfathering of Full implementation of parts 136-142. $82.3 $55.9 ($26.5) net costs.
certain equipment and design No grandfathering of certain
requirements in part 143. requirements in Part 143.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Net benefits do not include unquantified congestion and delay benefits.
Totals may not add due to rounding.
The RA available in the docket includes an analysis of the costs of
this rulemaking by requirement and provides an assessment of potential
monetized, quantified and non-quantified benefits of this rulemaking.
The RA also contains details and analysis of other alternatives
considered for this rulemaking.
B. Small Entities
Overview of the Final Regulatory Flexibility Act Analysis
The Regulatory Flexibility Act (Pub. L. 96-354)(RFA) establishes
``as a principle of regulatory issuance that agencies shall endeavor,
consistent with the objectives of the rule and of applicable statutes,
to fit regulatory and informational requirements to the scale of the
businesses, organizations, and governmental jurisdictions subject to
regulation. To achieve this principle, agencies are required to solicit
and consider flexible regulatory proposals and to explain the rationale
for their actions to assure that such proposals are given serious
consideration.''
The RFA and Executive Order 13272 require a review of proposed and
final rules to assess their impacts on small entities. An agency must
prepare an initial regulatory flexibility analysis (IRFA) unless it
determines and certifies that a rule, if promulgated, would not have a
significant economic impact on a substantial number of small entities.
During the NPRM stage, the Coast Guard published an IRFA to aid the
public in commenting on the potential small entity impacts of the
provisions in the NPRM. All interested parties were invited to submit
data and information regarding the potential economic impact that would
result from adoption of the proposals in the NPRM.
When an agency promulgates a final rule under 5 U.S.C. 553, after
being required by that section or any other law to publish a general
NPRM, or promulgates a final interpretative rule involving the internal
revenue laws of the United States as described in 5 U.S.C. 603(a), the
agency must prepare a final regulatory flexibility assessment (FRFA) or
have the head of the agency certify pursuant to 5 U.S.C. 605(b) that
the rule will not, if promulgated, have a significant economic impact
on a substantial number of small entities. The RFA also requires an
agency to conduct a FRFA unless it determines and certifies that a rule
is not expected to have a significant economic impact on a substantial
number of small entities.
The Coast Guard did not certify that the final rule will not have a
significant economic impact on a substantial number of small entities.
We received comments and data from several commenters on the IRFA, and
that information was considered for the FRFA. The RFA prescribes the
content of the FRFA in section 604(a), which we discuss below.
In accordance with the RFA (5 U.S.C. 601-612), the Coast Guard
prepared the FRFA in the Regulatory Analysis document that examines the
impacts of the final rule on small entities (5 U.S.C. 601, et seq.). A
small entity may be:
A small independent business, defined as any independently
owned and operated business not dominant in its field that qualifies as
a small business per the Small Business Act (5 U.S.C. 632);
A small not-for-profit organization; and;
A small governmental jurisdiction (locality with fewer
than 50,000 people).
This FRFA addresses the following:
(1) A statement of the need for, and objectives of, the rule;
(2) A statement of the significant issues raised by the public
comments in response to the IRFA, a statement of the assessment of the
agency of such issues, and a statement of any changes made in
[[Page 40092]]
the proposed rule as a result of such comments;
(3) The response of the agency to any comments filed by the Chief
Counsel for Advocacy of the Small Business Administration (SBA) in
response to the proposed rule, and a detailed statement of any change
made to the proposed rule in the final rule as a result of the
comments;
(4) A description of and an estimate of the number of small
entities to which the rule will apply or an explanation of why no such
estimate is available;
(5) A description of the projected reporting, recordkeeping and
other compliance requirements of the rule, including an estimate of the
classes of small entities which will be subject to the requirement and
the type of professional skills necessary for preparation of the report
or record;
(6) A description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each one of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected.
Below is a discussion of the FRFA for each of these six elements:
(1) A statement of the need for, and objectives of, the rule
The need for Federal regulatory action is due to the risk of
potential accidents caused by towing vessels on the nation's maritime
system. The consequences of towing vessel accidents can be severe,
including fatalities; injuries; damage to property, infrastructure and
the environment; and closure of transportation assets and subsequent
delays. There is also a public demand for improvements in the
management of the nation's waterways.
The casualties resulting from towing vessel accidents are examples
of negative externalities that are relevant to this final rule. The
cost of a higher safety standard is borne by the towing vessel owner or
operator, while the cost of an accident could be distributed across
various entities, including the vessel owner or operator, crew, other
vessel owners or operators, federal, state, and local public service
providers, businesses, and private citizens. The material failure of
the private market in reaching the socially optimal outcome increases
the risk to the public. An uncompensated increase in risk currently
exists due to inconsistent safety practices in the marine towing
industry. Regulatory action is required to take steps to reduce risk
industry-wide and thereby obtain the socially optimal outcome.
This final rule is authorized and made necessary by the 2004 Act,
which made towing vessels subject to inspection. Further, the 2010 Act
authorized the Secretary to issue a rule containing towing safety
management system provisions promulgated under 46 U.S.C. 3306(j).
The objective of this regulatory action is to enhance the safe
operations of towing vessels on our nation's waterways. The final rule
seeks to fulfill this objective by including towing vessels on the list
of vessels that Coast Guard must inspect, improving the working
environment of towing vessel crews, and placing responsibility for the
safe operation of towing vessels on the owners or operators of the
vessels. The requirements of the final rule are designed to encourage
companies to engage at every level to improve safe operations,
maintenance and design and adhere to prescribed safety standards.
(2) A statement of the significant issues raised by the public
comments in response to the initial regulatory flexibility analysis, a
statement of the assessment of the agency of such issues, and a
statement of any changes made in the proposed rule as a result of such
comments
On August 11, 2011, the Coast Guard published an NPRM titled
``Inspection of Towing Vessels'' in the Federal Register (76 FR 49976).
The Coast Guard then held four public meetings, one each in Newport
News, VA; New Orleans, LA; St. Louis, MO; and Seattle, WA. We received
and considered a combined total of more than 3,000 comments, from more
than 265 written submissions and oral statements from 105 persons at
public meetings, in developing this final rule. We summarized these
comments in the ``Discussion of Comments and Changes'' section of the
preamble for the final rule.
We received several comments from small business owners and
operators on the economic impact of subchapter M regulations. Some
commenters were opposed to new regulations and did not provide specific
information or data on how they will be impacted by its requirements.
Many other commenters requested either exemption or grandfathering from
all or some of these regulations. These commenters wanted to completely
avoid or mitigate the impact of the regulations so they could continue
to serve the towing vessel industry. Below is a discussion of comments
received on small business impacts.
Some commenters felt that subchapter M requirements would hurt
small business owners and their employees, and could put many small
entities out of business. However, they did not provide specific data
on how much of a burden the requirements might be on their operational
costs. The most specific comment received noted that recordkeeping
proposals alone would require him to hire one or more new full time
workers. Some other commenters pointed to the overall costs of
subchapter M regulations that were previously put in a range of
$100,000 to $250,000, per vessel, and potentially several million
dollars per company for business entities that owned multiple towing
vessels.
Several other commenters, similar to the previous group of
commenters also expressed concern that their company would not be able
to pay for these requirements, and therefore, either be forced out of
business or be acquired by larger entities in the towing vessel
industry. Due to these costly subchapter M regulations one commenter
argued that lenders would delay lending and review existing ship
mortgages to reassess their collateral positions. This commenter noted
that this is because many small towing vessel owners and operators
could not afford to comply with the requirements of the regulations.
Another commenter stated that his company would lose the ability to
borrow against their boats if they can't comply with the proposed
regulations. One commenter estimated that no less than 20 percent of
the aggregate U.S. towing fleet would be put out of service, if the
final rule goes into effect as written in the NPRM.
The Coast Guard appreciates these comments on the economic impact
of the final rule on small entities. Cognizant of regulatory impacts on
small entities, the Coast Guard sought to minimize these impacts and
has structured the final rule with this end in mind. The Coast Guard's
efforts to minimize the cost impacts on small entities in the final
rule include the following.
Inspection compliance options: The Coast Guard has
retained from the proposed rule flexibility in the method for complying
with inspections, either through Coast Guard inspections or a TSMS.
Some commenters suggested that a TSMS be mandatory for all towing
owners and operators and their vessels. However, the Coast Guard has
instead continued to allow either option, so that small entities can
chose the approach
[[Page 40093]]
that minimizes impacts on their particular business operations.
Automatic External Defibrillator (AED): The Coast Guard
has removed the requirement for towing vessels to have AEDs to reduce
the cost impact of the final rule. The savings resulting from this
change would be estimated at $2,500 per unit for each vessel.
Pilothouse alerters: The Coast Guard has retained the
requirement for pilothouse alerters, but has limited applicability to
larger towing vessels (in excess of 65 ft) with potentially higher risk
profiles. To reduce the burden of this requirement, the Coast Guard has
also allowed for a longer implementation period. For vessels less than
65 feet, the savings are the $5,410 cost of the alerter per vessel.
Equivalence of existing SMSs: For owners and operators
that choose the TSMS option, the Coast Guard has sought to minimize
additional effort to develop and implement a TSMS by establishing a
process for granting equivalency between an existing SMS and a TSMS.
Also, under the final rule, compliance with ISM is equivalent to a
TSMS. This change has the potential to minimize efforts for the 51
percent of the affected population covered by an existing SMS, but the
amount of the savings has not been quantified.
Removing certain requirements for existing vessels: In
response to comments received on the NPRM, the Coast Guard has removed
certain requirements in parts 143 and 144 for existing vessels to
decrease the cost. In the NPRM, the Coast Guard estimated that certain
requirements could cost in the range of $5,000 to $20,000 per
requirement per vessel, at a total of approximately $60,000 per vessel.
Commenters provided estimates at or exceeding $100,000 to $150,000 to
retrofit vessels to meet these requirements.
Stability documents: The Coast Guard has changed certain
requirements in part 144 to offer additional methods for compliance.
One commenter estimated that it could cost tens of thousands of dollars
to have a naval architect generate stability calculations under the
NPRM proposal. Section 144.300(b) now offers three options for an
existing vessel without a stability document to meet part 144
requirements: Findings based on the vessel's operation or a history of
satisfactory service, successful performance on operational tests, or a
satisfactory stability assessment. In particular, allowing for a
vessel's history of satisfactory service in the final rule provides a
lower cost method for compliance, which should serve to reduce the cost
on small entities.
(3) The response of the agency to any comments filed by the Chief
Counsel for Advocacy of the Small Business Administration in response
to the proposed rule, and a detailed statement of any change made to
the proposed rule in the final rule as a result of the comments
The Coast Guard did not receive any comments from the SBA's Office
of Advocacy regarding the impact that the proposed rule would have on
small entities.
(4) A description of and an estimate of the number of small
entities to which the rule will apply or an explanation of why no such
estimate is available
The final rule will affect the owners and operators of certain
towing vessels. We constructed a towing vessel fleet database based on
data from the Waterborne Transportation Lines of the U.S., U.S. Army
Corps of Engineers; the Inland River Record, Waterways Journal; the
Coast Guard's MISLE system; Web sites and other public sources. From
this database we identified 5,509 vessels affected by this rule. There
are 1,096 companies that own or operate these vessels.
We used available operator name and address information to research
public and proprietary databases for entity type (subsidiary or parent
company), primary line of business, employee size, revenue, and other
information. We found 20 vessels owned by 17 governments and 6 owned by
non-profits. The remainder are business entities. For governmental
jurisdictions, we determined whether the jurisdiction had populations
of less than 50,000 as per the criteria in the RFA. For nonprofits, we
qualitatively evaluated whether the nonprofit was independently owned
and operated and is not dominant in its field. For the businesses, we
matched the owner information to the SBA's ``Table of Small Business
Size Standards'' to determine if an entity is small in its primary line
of business as classified in the North American Industry Classification
System (NAICS). Of the 20 vessels owned by 13 governments, 5 are owned
by small government jurisdictions (with fewer than 50,000 people). Of
the 6 vessels owned by 3 non-profits, all are owned by non-profits that
are independently operated and not dominant in their field.
There are a total of 26 NAICS-coded industries in the final rule's
affected population and we show below the 11 industries that appeared
most frequently in the affected population of owners or operators of
towing vessels.
Table 17--Eleven Most Frequent Industries Affected by the Final Rule
----------------------------------------------------------------------------------------------------------------
Count of Percent of
towing vessel total number
NAICS Code Description Small entity definition entities in of towing
each NAICS vessel
code entities
----------------------------------------------------------------------------------------------------------------
483211............... Inland Water Freight <500 Employees........... 71 31.8
Transportation.
488330............... Navigational Services To <$38,500,000............. 48 21.5
Shipping.
483113............... Coastal and Great Lakes <500 Employees........... 42 18.8
Freight Transportation.
238910............... Site Preparation Contractors.. <$14,000,000............. 13 5.8
483111............... Deep Sea Freight <500 Employees........... 10 4.5
Transportation.
213112............... Support Activities For Oil & <$35,500,000............. 5 2.2
Gas Operations.
237310............... Highway Street & Bridge <$33,500,000............. 4 1.8
Construction.
336611............... Ship Building & Repairing..... <1,000 Employees......... 4 1.8
423320............... Brick, Stone/Related <100 Employees........... 4 1.8
Construction Material
Merchant Wholesalers.
444190............... Other Building Material <$19,000,000............. 3 1.3
Dealers.
488320............... Marine Cargo Handling......... <$38,500,000............. 3 1.3
----------------------------------------------------------------------------------------------------------------
[[Page 40094]]
We randomly selected a sample size of the 5,509 towing vessels to
reach the 95 percent confidence level. This sample produced a set of
223 businesses that own and operate the towing vessels. No governments
or non-profits were in our sample. Of the 223 businesses, there were 43
companies that exceeded SBA small business size standards, 113
companies considered small by the SBA, and 67 companies for which no
information was available. For the purposes of this analysis, we
consider all entities for which information was not available to be
small. Thus, there are 180 businesses in our sample we consider to be
small entities.
Cost Methodology--Analysis Periods, Variable Costs, and Fixed Costs
The cost incurred by a particular small entity over the 10-year
period of analysis varies based on the period of years in question. For
the purposes of this FRFA, we analyzed the cost impacts on small
entities for a representative year within two periods, as the phase-in
period of the initial two years and the full implementation period from
Years 3 through 10 have unique costs. During the phase-in period,
companies will face initial implementation costs, such as the TSMS and
conducting initial vessel surveys. Over the following full
implementation period, companies will face ongoing costs associated
with periodic surveys, vessels will operate under their COIs and
companies will face ongoing costs associated with obtaining and
renewing COIs, periodic surveys and audits, drydock inspections, and
Coast Guard inspections. The scheduling of all these activities are
dependent on a number of factors, such as the following:
A vessel operating under the TSMS option will be subject
to management and vessel audits and the operating company will need to
obtain a TSMS Certificate.
Many of the requirements are based on when a vessel
obtains its first COI, which lasts for five years. The rule states that
vessel owners/operators must spread out the initial COI over two-to-
four years, depending on the size of the fleet.
A vessel operating in salt water must have two drydock
inspections in every 5-year period, while one operating in fresh water
only needs one.
We anticipate that the entities will manage the compliance
activities so that costs are efficiently managed. For example, an owner
with vessels operating under the TSMS options having a fleet of vessels
in the upper Mississippi River may want to have the Coast Guard inspect
all vessels at one time during the winter when that stretch of the
River is closed and the vessels are idle. As a counter example, and
entity with a fleet in constant operation may want to spread the Coast
Guard inspections over the five-year period to minimize disruptions to
service. Thus, there is no one year in the full implementation period
that contains all the cost elements for all vessels. To provide a
single reference year we constructed a hypothetical ``heavy load'' year
that contains all the requirements for a vessel and an entity. This
year includes a COI renewal for a TSMS vessel, the Coast Guard
inspection, and a drydock inspection and other costs that apply
throughout this period. As described below, the construct of the
``heavy load year'' enabled the comparison of the costs for one year to
revenue for one year.
To conduct the small entity revenue impact analysis we divided the
total annual costs of an entity for the two periods into these three
components: vessel annual variable costs, vessel annual fixed costs,
and unit annual entity costs. Vessel annual variable costs are those
that are dependent upon the characteristics or condition of the vessel.
Vessel annual fixed costs are those that apply to all vessels, such as
the requirement to post the COI. Unit annual entity costs are those
that accrue at the management level of the entity. The annual costs for
an entity are calculated for the phase-in and full implementation
periods using the following equations:
Equation 1: Vessel Annual Unit Cost = Vessel Annual Variable Cost +
Vessel Annual Fixed Cost
Equation 2: Total Annual Vessel Costs = Vessel Annual Unit Cost
(eq. 1) * number of vessels
Equation 3: Total Entity Costs = Total Annual Vessel Costs (eq. 2)
+ Unit Annual Entity Costs
Vessel annual fixed costs and unit annual entity costs are derived
for the phase-in and full-implementation periods from data in the cost
model from the regulatory analysis. The fixed costs for the phase-in
period are the same in both years. For the full-implementation period
we used the costs associated with the hypothetical ``heavy load'' year,
described above. Table 18 shows these costs for the two periods.
Table 18--Annual Vessel Fixed Costs and Unit Entity Costs for Phase-In
and Full-Implementation Periods
------------------------------------------------------------------------
Annual Annual
vessel entity
Period fixed unit
cost cost
------------------------------------------------------------------------
Phase-In.......................................... $11,480 $23,737
Full Implementation............................... 5,045 5,250
------------------------------------------------------------------------
In the regulatory analysis, we used MISLE deficiency data to
estimate the number of vessels that would need to make changes to
comply with various system or equipment standards. This generated
population based estimates, but did not identify the specific vessels
that would incur these compliance costs.
To estimate vessel variable costs, we adopted the Monte Carlo
methodology used in the IRFA. We used the Monte Carlo as a tool to
resolve the uncertainties related to which vessels will need to comply
with which requirements, each with their own unit costs and affected
populations. The Monte Carlo model we developed accounts for the ranges
of unit costs and affected populations across the requirements by
taking as inputs the specific unit costs and affected populations for
each requirement. The output of the model is a distribution of total
variable costs.
The Monte Carlo model simulated a one-year variable costs for the
phase-in and full-implementation periods separately. The inputs are
from the cost estimates of each requirement: The affected population
recast as a percentage of the total vessel population, and the unit
costs. Each simulation was run 10,000 times to produce a distribution
of costs. For a point estimate of the vessel annual variable costs we
took the average value of each distribution, which yielded $4,787 for
the phase-in period and $9,866 for the full implementation period.
To summarize from the presentations above, the parameters for the
phase-in period are the following:
Vessel Annual Variable Cost = $4,787
Vessel Annual Fixed Cost = $11,480
Entity Annual UnitCost = $5,045.
Applying Equation 1 from above, Vessel Annual Unit Cost = $16,267
(Vessel Annual Variable Cost, $4,787, + Vessel Annual Fixed Cost,
$11,480).
The variable inputs are the number of vessels operated by each
entity, which is found in the Affected Population Database, and the
entity's revenue.
[[Page 40095]]
We developed an annual revenue impact analysis for the average
company in our sample. The average number of vessels per company in our
sample is 1.7, so the two-vessel example is representative of an
average company. We estimate this average two-vessel owning small
entity will incur an annual cost of $37,579 during the two-year phase-
in period of this rule. Consequently, the total two-year implementation
cost for the average small entity is estimated at $75,158. The average
annual revenue across the sample is $10,058,187. With these inputs we
derived an estimate of the annual revenue impact for the average entity
in the sample. The results of this analysis are shown as Example 1 in
Table 19. Examples 2 through 4 show the calculations for examples of
applying Equations 2 and 3 for three hypothetical companies, with one-,
three-, and four-vessel fleets, respectively.
Table 19--Examples of Annual Revenue Impact Calculations During the Phase-In Period for the Average-Size Fleet (2 Vessels) and Hypothetical Examples for
1-, 3-, and 4-Vessel Fleets
[Revenue for example 2 is sample average, others are hypothetical]
--------------------------------------------------------------------------------------------------------------------------------------------------------
(C) Vessel (D) Vessel (E) Entity (F) Total (H) Annual
(A) Entity name (B) Fleet annual unit annual cost (B annual unit annual cost (D (G) Annual revenue
size cost * C) cost + E) revenue impact (F/G) %
--------------------------------------------------------------------------------------------------------------------------------------------------------
Example 1 (Average Entity).............. 2 $16,267 $32,534 $5,045 $37,579 $10,058,187 0.40
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hypothetical Examples
--------------------------------------------------------------------------------------------------------------------------------------------------------
Example 2............................... 1 16,267 16,267 5,045 21,312 5,000,000 0.43
Example 3............................... 3 16,267 48,801 5,045 53,846 15,000,000 0.36
Example 4............................... 4 16,267 65,068 5,045 70,113 20,000,000 0.35
--------------------------------------------------------------------------------------------------------------------------------------------------------
For the 92 businesses with revenue data, we calculated the total
costs for each small entity and a revenue impact as a percentage of
revenue. Table 21 presents the annual revenue impact on small entities
for the phase-in and full implementation periods.
Table 21--Percentage of Estimated Annual Revenue Impact on Affected Small Entities
----------------------------------------------------------------------------------------------------------------
Annual impacts from phase-in Annual impacts from
------------------------------------------------- costs (average of Years 1-2) implementation costs
-------------------------------- (``heavy load'' year)
-------------------------------
Revenue impact range Number of Percent of Number of Percent of
entities entities entities entities
----------------------------------------------------------------------------------------------------------------
0% <= 1%........................................ 60 65.2 44 47.8
1% <= 3%........................................ 19 20.7 27 29.3
3% <= 5%........................................ 2 2.2 8 8.7
5% <= 10%....................................... 5 5.4 2 2.2
Above 10%....................................... 6 6.5 11 12.0
---------------------------------------------------------------
Total....................................... 92 100.0 92 100.0
----------------------------------------------------------------------------------------------------------------
During the phase-in period, for the average cost per year, our
analysis indicates that nearly 65 percent of the small entities will
have an annual revenue impact of 1% or less. Approximately 28.3 percent
of the small entities will have an annual revenue impact of between 3
percent and 10 percent. The remaining 6.5 percent of the small entities
will have an annual revenue impact of over 10 percent.
After full implementation of inspections and COIs, we estimate that
47.8 percent of the small entities will have an annual revenue impact
of 1% or less. Approximately 40.2 percent of the small entities will
have an annual revenue impact of between 3 percent and 10 percent. The
remaining 12.0 percent of the small entities will have an annual
revenue impact of over 10 percent.
(5) A description of the projected reporting, recordkeeping and
other compliance requirements of the rule, including an estimate of the
classes of small entities which will be subject to the requirement and
the type of professional skills necessary for preparation of the report
or record
Under the provisions of the final rule, 5,509 towing vessels owned
by 1,096 towing vessel companies will be required to conduct a variety
of reporting and recordkeeping activities, related to obtaining and
renewing a COI, which will involve compiling information, submission,
and third part review. Additionally, information will be collected at
the vessel and company level regarding safety, operations, drills,
record keeping, and general compliance. These requirements will be
added as a new collection of information with the OMB control number
1625-0117 with the title ``Towing Vessels--Title 46 CFR Subchapter M.
Please refer to Chapter 11, ``Paperwork Reduction Act'', the Regulatory
Analysis for further detail.
(6) A description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes,
[[Page 40096]]
including a statement of the factual, policy, and legal reasons for
selecting the alternative adopted in the final rule and why each one of
the other significant alternatives to the rule considered by the agency
which affect the impact on small entities was rejected
Prior to this rulemaking, the Coast Guard participated in the TSAC
meetings that helped formulate our proposals in the NPRM. Small
entities had the opportunity to participate in this Committee and the
Economic Analysis Working Group.
The Coast Guard has made a number of changes from the proposals in
the NPRM after consideration of public comments. A full discussion of
comments and Coast Guard responses is found in the ``Discussion of
Comments and Changes'' section above. In developing both the original
proposal and the final rule, the following are examples of the Coast
Guard's efforts to minimize the economic impact on small entities.
Inspection compliance options: The Coast Guard has retained from
the proposal the choice of method for complying with inspections,
either through Coast Guard inspections or a TSMS. Some commenters
suggested that a TSMS be mandatory for all towing owners and operators
and their vessels. However, the Coast Guard has instead continued to
allow either option, so that small entities can choose the approach
that minimizes impacts on their particular business operations.
AED: The Coast Guard has removed the requirement for towing vessels
to have AEDs to reduce the cost impact of the final rule.
Pilothouse alerters: The Coast Guard has retained the requirement
for pilothouse alerters, but has limited applicability to larger towing
vessels (in excess of 65 ft) with potentially higher risk profiles. To
reduce burden of this requirement the Coast Guard has also allowed for
a longer implementation period.
Equivalence of existing SMSs: For owners and operators that chose
the TSMS option, Coast Guard has sought to minimize effort to develop
and implement a TSMS by establishing a process for granting equivalency
between an existing SMS and a TSMS. Also, under the final rule,
compliance with ISM is equivalent to a TSMS.
Removing certain requirements for existing vessels: In response to
comments received on the NPRM, the Coast Guard has removed certain
requirements in parts 143 and 144 for existing vessels to decrease the
cost.
Stability documents: The Coast Guard has changed certain
requirements in part 144 to offer additional methods for compliance.
Section 144.300(b) now offers three options for an existing vessel
without a stability document to meet part 144 requirements: Findings
based on the vessel's operation or a history of satisfactory service,
successful performance on operational tests, or a satisfactory
stability assessment. In particular, allowing for a vessel's history of
satisfactory service in the final rule provides a lower cost method for
compliance, which should serve of compliance to reduce the cost on
small entities.
The Coast Guard discusses the full range of alternatives considered
in Section 6 of the RA. We monetized the impacts of three alternatives.
Table 13 above summarizes the costs, benefits and net benefits of the
alternatives considered and the preferred alternative adopted in the
final rule.
Alternative 1 estimates impacts of only implementing the inspection
requirements of the final rule, without the operational, lifesaving,
fire protection, machinery and electrical, and construction and
arrangement requirements. Although this approach reduces the cost
impacts of the final rule, the benefits fall by almost 85 percent. The
annualized net impact of the rule (benefits minus costs) falls from
$4.5 million in net benefits for the preferred alternative to a net
cost of $21.2 million. Requiring only the inspection requirements
without also increasing the standards in the other CFR parts fails to
meet the objective of improving towing vessel safety and decreasing the
risk of towing vessel accidents to a substantive degree. The Coast
Guard developed and chose the comprehensive approach that combines an
inspection regime with improved standards as it results in the greater
societal outcomes, as demonstrated by the net benefits.
Similarly, Alternative 2, which estimates the impact of delaying
implementation of the operational standards found in Part 140, also
results in lower annualized net impacts: $4.5 million net benefits for
the preferred alternative and $17.1 million net costs for Alternative
2. The Coast Guard chose not to delay implementation of the operational
standards in part 140 as it results in the greater societal outcomes,
as demonstrated by the net benefits.
Alternative 3 analyzes the impacts of not removing certain
requirements in parts 143 and 144 (as discussed above). Alternative 3
has a greater cost burden, including greater impact on small entities,
than the preferred alternative and results in net costs of $26.4
million. For these reasons, the Coast Guard has applied the certain
requirements in parts 143 and 144 to only new vessels and reduced the
burden on small entities.
We are interested in the potential impacts from this final rule on
small businesses and we request public comment on these potential
impacts.
C. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this final rule so that they can better
evaluate its effects on them and participate in the rulemaking. As
noted, we have prepared a Small Entities Guide for this rule and have
placed in it the docket for this rulemaking. If the final rule would
affect your small business, organization, or governmental jurisdiction
and you have questions concerning its provisions or options for
compliance, please consult LCDR Will Nabach, Project Manager, CG-OES-2,
Coast Guard, telephone 202-372-1386. The Coast Guard will not retaliate
against small entities that question or complain about this rule or any
policy or action of the Coast Guard.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).
D. Collection of Information
This final rule would call for a collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined
in 5 CFR 1320.3(c), ``Collection of Information'' comprises reporting,
recordkeeping, monitoring, posting, labeling, and other, similar
actions. The title and description of the information collections, a
description of those who must collect the information, and an estimate
of the total annual burden follow. The estimate covers the time for
reviewing instructions, searching existing sources of data, gathering
and maintaining the data needed, and completing and reviewing the
collection.
Title: Towing Vessels--Title 46 CFR Subchapter M.
[[Page 40097]]
Summary of the Collection of Information: Owners and managing
operators of inspected towing vessels would be required to either
develop and maintain documentation for their safety management system
and arrange periodic audits and surveys through third-party
organizations, or to demonstrate compliance with the subchapter M to
Coast Guard inspectors. Additional documentation would be required to
obtain a Certificate of Inspection for each vessel, comply with crew
and vessel operational safety standards, vessel equipment and system
standards, procedures and schedules for routine tests and inspections
of towing vessels and their onboard equipment and systems. The new
requirements for third-party auditors and surveyors include obtaining
Coast Guard approval and renewing it periodically. The Coast Guard
would be burdened by reviewing required reports, conducting compliance
examinations of towing vessels and overseeing third-party auditors and
surveyors through approval and observation.
Need for Information: The information is necessary for the proper
administration and enforcement of the towing vessel inspection program.
Proposed use of Information: The Coast Guard would use this
information to document that towing vessels meet inspection
requirements of subchapter M.
Description of the Respondents: The respondents are the owners and
managing operators of towing vessels and third-party auditors and
surveyors that would be required to complete various forms, reports and
keep reports.
Number of Respondents: The 5,694 respondents are the owners and
operators of 5,509 affected towing vessels and 185 entities that employ
the third-party auditors and surveyors.
Frequency of Response: The average responses per year are
7,660,257.
Estimate of Total Annual Burden: The total annual burden is 181,669
hours.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), we have submitted a copy of this rule to the Office of
Management and Budget (OMB) for its review of the collection of
information.
You need not respond to a collection of information unless it
displays a currently valid control number from OMB. Before the Coast
Guard could enforce the collection of information requirements in this
rule, OMB would need to approve the Coast Guard's request to collect
this information.
E. Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in E.O. 13132. Our
analysis is explained below.
It is well settled that States may not regulate in categories
reserved for regulation by the Coast Guard. It is also well settled
that all of the categories covered in 46 U.S.C. 3306, 3703, 7101, and
8101 (design, construction, alteration, repair, maintenance, operation,
equipping, personnel qualification, and manning of vessels), as well as
the reporting of casualties and any other category in which Congress
intended the Coast Guard to be the sole source of a vessel's
obligations, are within the field foreclosed from regulation by the
States. (See the decision of the Supreme Court in the consolidated
cases of United States v. Locke and Intertanko v. Locke, 529 U.S. 89,
120 S.Ct. 1135 (March 6, 2000)). This rule covers all of the foreclosed
categories, as it establishes regulations covering a new category of
inspected vessels, as mandated by Congress. Because the States are now
foreclosed from regulating towing vessels in these categories, the rule
is consistent with the principles of federalism and preemption
requirements in Executive Order 13132.
F. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538,
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.
G. Taking of Private Property
This rule will not cause a taking of private property or otherwise
have taking implications under E.O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights.
H. Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of E.O. 12988 (``Civil Justice Reform''), to minimize litigation,
eliminate ambiguity, and reduce burden.
I. Protection of Children
We have analyzed this rule under E.O. 13045 (``Protection of
Children from Environmental Health Risks and Safety Risks''). This rule
is not an economically significant rule and would not create an
environmental risk to health or risk to safety that might
disproportionately affect children.
J. Indian Tribal Governments
This rule does not have tribal implications under E.O. 13175
(``Consultation and Coordination with Indian Tribal Governments''),
because it would not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.
K. Energy Effects
We have analyzed this rule under E.O. 13211 (``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use''). We have determined that it is not a ``significant energy
action'' under E.O. 13211, because although it is a ``significant
regulatory action'' under E.O. 12866, it is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy, and the Administrator of OMB's Office of Information and
Regulatory Affairs has not designated it as a significant energy
action.
L. Technical Standards and 1 CFR Part 51
The National Technology Transfer and Advancement Act, codified as a
note to 15 U.S.C. 272, directs agencies to use voluntary consensus
standards in their regulatory activities unless the agency provides
Congress, through OMB, with an explanation of why using these standards
would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g.,
specifications of materials, performance, design, or operation; test
methods; sampling procedures; and related management systems practices)
that are developed or adopted by voluntary consensus standards bodies.
This final rule uses the following voluntary consensus standards
from:
[[Page 40098]]
The American Boat and Yacht Council (ABYC)--
ABYC E-11 (2003), AC and DC Electrical Systems on Boats.
This standard covers the design, construction, and installation of
direct current (DC) electrical systems on boats and of alternating
current (AC) electrical systems on boats. ABYC H-2 (2000), Ventilation
of Boats Using Gasoline. This standard covers the design, construction,
and installation of ventilation systems of engine and fuel tank
compartments of boats using gasoline for mechanical power, propulsion,
or auxiliary generators. ABYC H-22 (2005), Electric Bilge Pump Systems.
This standard covers the design, construction, installation, operation,
and control of electric bilge pump systems on boats.
ABYC H-24 (2007), Gasoline Fuel Systems. This standard
covers the design, choice of materials for, construction, installation,
repair, and maintenance of permanently installed gasoline fuel systems
on boats.''
ABYC H-25 (2003), Portable Gasoline Fuel Systems. This
standard covers the design, construction and stowage of portable tanks
with related fuel lines and accessories comprising a portable gas fuel
system for boats.
ABYC H-32 (2004), Ventilation of Boats Using Diesel Fuel.
This standard covers the design, construction, and installation of
ventilation systems of boats using diesel fuel only for electrical
generation, mechanical power, and propulsion.
ABYC H-33 (2005), Diesel Fuel Systems. This standard
covers the design, choice of materials, construction, installation,
repair, and maintenance of permanently installed diesel fuel systems on
boats.
ABYC P-1 (2002), Installation of Exhaust Systems for
Propulsion and Auxiliary Engines. This standard covers the design,
installation and selection of materials for exhaust systems for marine
engines of boats.
ABYC P-4 (2004), Marine Inboard Engines and Transmissions.
This standard covers the design, construction, installation, and
selection of materials for inboard engines and transmissions on boats.
The American Bureau of Shipping (ABS)--
ABS Rules for Building and Classing Steel Vessels for
Service on Rivers and Intracoastal Waterways, 2007. These standards are
for barges, towboats, cargo vessels and passenger vessels in service on
major rivers and on connecting intracoastal waterways. They are
applicable to those features that are permanent in nature and can be
verified by plan review, calculation, physical survey or other
appropriate means.
ABS Rules for Building and Classing Steel Vessels Under 90
Meters (295 Feet) in Length, 2006. These standards are applicable to
self-propelled steel vessels under 90 meters (295 feet) in length
intended for unrestricted ocean service, except where specifically
mentioned otherwise.
The American Society for Quality (ASQ), Quality Press--
ANSI/ISO/ASQ Q9001-2000, American National Standard:
Quality management systems--Requirements. This standard specifies
requirements for an organization's quality management system.
FM Approvals--
FM 6050-1996, Approval Standard for Storage Cabinets
(Flammable and Combustible Liquids). This standard contains performance
and construction requirements for cabinets designed to provide safe and
secure storage for flammable and combustible liquids.
The International Maritime Organization (IMO)--
Resolution A.520(13), Code of Practice for the Evaluation,
Testing and Acceptance of Prototype Novel Life-saving Appliances and
Arrangements, November 17, 1983. This code prescribes the appliance and
arrangement criteria which should be taken into account and prototype
tests which should be carried out for the evaluation of novel designs
for international acceptance. Resolution A.658(16), Use and Fitting of
Retro-Reflective Materials on Life-saving Appliances, October 19, 1989.
This resolution details the requirements for use, fitting, and size/
type of retro-reflective materials on life-saving appliances.
Resolution A.688(17), Fire Test Procedures For
Ignitability of Bedding Components, 1991. This resolution details the
fire test procedures to determine the ignitability of bedding
components.
Resolution A.760(18), Symbols Related to Life-Saving
Appliances and Arrangements, November 4, 1993. This resolution details
the requirements for symbols related to life-saving appliances and
arrangements.
International Convention for the Safety of Life at Sea
(SOLAS), 1974, as amended. This international convention is designed to
improve the safety of shipping.
The International Organization for Standardization (ISO)--
ISO 9001-2008(E), International Standard: Quality
management systems--Requirements, Fourth edition, dated November 15,
2008. This international standard details the requirements for quality
management systems.
ISO 14726-2008(E), International Standard: Ships and
marine technology-Identification colours for the content of piping
systems, First edition, dated May 1, 2008. This international standard
specifies main colors and additional colors for identifying piping
systems in accordance with the content or function on board ships and
marine structures.
The National Fire Protection Association (NFPA)--
NFPA 10, Standard for Portable Fire Extinguishers, 2007
Edition, effective August 17, 2006. The provisions of this standard
apply to the selection, installation, inspection, maintenance, and
testing of portable extinguishing equipment.
NFPA 70, National Electrical Code (NEC), 2002 Edition,
effective August 2, 2001. The provisions of this standard apply to the
design, modification, construction, inspection, maintenance, and
testing of electrical systems/installations and equipment.
NFPA 302, Fire Protection Standard for Pleasure and
Commercial Motor Craft, 1998 Edition. This standard specifies
provisions for fire protection on pleasure and commercial motor craft.
NFPA 306, Standard for the Control of Gas Hazards on
Vessels, 2014 Edition, effective June 17, 2013. This standard describes
the conditions required before a space can be entered or work can be
started, continued, or started and continued on any vessel under
construction, alteration, or repair, or on any vessel awaiting
shipbreaking.
NFPA 750, Standard on Water Mist Fire Protection Systems,
2006 Edition, effective February 16, 2006. This standard contains the
minimum requirements for the design, installation, maintenance, and
testing of water mist fire
[[Page 40099]]
protection systems.
NFPA 1971, Standard on Protective Ensembles for Structural
Fire Fighting and Proximity Fire Fighting, 2007 Edition, effective
August 17, 2006. This standard specifies the minimum design,
performance, testing, and certification requirements for certain types
of fire fighting protective ensembles and ensemble elements that
include coats, trousers, coveralls, helmets, gloves, footwear, and
interface components.
The Society of Automotive Engineers (SAE)--
ANSI/SAE Z 26.1-1996, American National Standard for
Safety Glazing Materials for Glazing Motor Vehicles and Motor Vehicle
Equipment Operating on Land Highways--Safety Standard. This standard
provides specifications and methods of testing for safety glazing
material used for windshields, windows, and partitions of land and
marine vehicles and aircraft.
SAE J1475-Revised JUN96--Hydraulic Hose Fitting for Marine
Applications, revised June 1996. This standard covers general and
performance specifications for certain hydraulic hose fittings used in
conjunction with nonmetallic flexible hoses for marine applications.
SAE J1942-Revised APR2007--Hose and Hose Assemblies for
Marine Applications, revised April 2007. This standard covers specific
requirements for several styles of hose and/or hose assemblies in
systems on board commercial vessels inspected and certificated by the
U.S. Coast Guard.
UL (formerly Underwriters Laboratories, Inc.)--
UL 217, Standard for Safety for Single and Multiple
Station Smoke Alarms, Sixth Edition, dated August 25, 2006. Along with
other types of smoke alarms used in different settings, this standard
specifies requirements for smoke alarms intended for use in
recreational boats.
UL 1104, Standard for Safety for Marine Navigation Lights,
Second Edition, dated October 29, 1998. These requirements cover marine
navigation light fixtures intended for use in accordance with the
applicable U. S. Coast Guard regulations.
UL 1275, Standard for Safety for Flammable Liquid Storage
Cabinets, Third Edition, dated June 30, 2005. These requirements cover
cabinets intended to be used to provide an indoor storage area for
limited quantities of flammable and combustible liquids in containers
in compliance with specified standards.
Consistent with 1 CFR part 51 incorporation-by-reference
provisions, this material is reasonably available. Interested persons
have access to it through their normal course of business, may purchase
it from sources listed in 46 CFR 136.112, or may view a copy by the
means we have identified in the ADDRESSES section. Section 136.112 also
identifies the sections that reference these standards.
M. Environment
We have analyzed this final rule under Department of Homeland
Security Management Directive 023-01 and Commandant Instruction
M16475.lD, which guide the Coast Guard in complying with the National
Environmental Policy Act of 1969, 42 U.S.C. 4321-4370f, and have
concluded that this action is one of a category of actions that do not
individually or cumulatively have a significant effect on the human
environment. A final environmental analysis checklist and categorical
exclusion determination supporting this determination are available in
the docket where indicated under the ADDRESSES section of this
preamble. This final rule involves regulations that are procedural;
regulations concerning the training of maritime personnel; regulations
concerning manning, documentation, inspection and equipping of vessels;
regulations concerning equipment approval and carriage requirements;
regulations concerning vessel operation safety standards; and
Congressionally mandated regulations designed to improve or protect the
environment. This action falls under section 2.B.2, figure 2-1,
paragraphs (34)(a), (c), (d), and (e) of the Commandant Instruction
M16475.lD, and under section 6(a) and (b) of the ``Appendix to National
Environmental Policy Act: Coast Guard Procedures for Categorical
Exclusions, Notice of Final Agency Policy'' (67 FR 48243, July 23,
2002).
List of Subjects
46 CFR Part 1
Administrative practice and procedure, Organization and functions
(Government agencies), Reporting and recordkeeping requirements.
46 CFR Part 2
Marine safety, Reporting and recordkeeping requirements, Vessels.
46 CFR Part 15
Reporting and recordkeeping requirements, Seamen, Vessels.
46 CFR Part 136
Incorporation by reference, Reporting and recordkeeping
requirements, Towing vessels.
46 CFR Part 137
Marine safety, Reporting and recordkeeping requirements, Towing
vessels.
46 CFR Part 138
Incorporation by reference, Marine safety, Reporting and
recordkeeping requirements, Towing vessels.
46 CFR Part 139
Incorporation by reference, Reporting and recordkeeping
requirements, Towing vessels.
46 CFR Part 140
Incorporation by reference, Marine safety, Occupational health and
safety, Penalties, Reporting and recordkeeping requirements, Towing
vessels.
46 CFR Part 141
Incorporation by reference, Marine safety, Occupational health and
safety, Reporting and recordkeeping requirements, Towing vessels.
46 CFR Part 142
Fire prevention, Incorporation by reference, Marine safety,
Reporting and recordkeeping requirements, Towing vessels.
46 CFR Part 143
Hazardous materials transportation, Incorporation by reference,
Marine safety, Reporting and recordkeeping requirements, Towing
vessels.
46 CFR Part 144
Cargo vessels, Incorporation by reference, Marine safety, Oil and
gas exploration, Passenger vessels, Reporting and recordkeeping
requirements, Towing vessels.
46 CFR Part 199
Cargo vessels, Marine safety, Oil and gas exploration, Passenger
vessels, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Coast Guard amends
46 CFR parts 1, 2, 15, and 199 and adds 46 CFR subchapter M, consisting
of parts 136, 137, 138, 139, 140, 141, 142, 143, and 144 as follows:
[[Page 40100]]
46 CFR CHAPTER I
PART 1--ORGANIZATION, GENERAL COURSE AND METHODS GOVERNING MARINE
SAFETY FUNCTIONS
0
1. The authority citation for part 1 is revised to read as follows:
Authority: 5 U.S.C. 552; 14 U.S.C. 633; 46 U.S.C. 7701; 46
U.S.C. Chapter 93; Secs. 101, 888, and 1512, Pub. L. 107-296, 116
Stat. 2135; Department of Homeland Security Delegation No. 0170.1;
Sec. 1.01-35 also issued under the authority of 44 U.S.C. 3507; and
Sec. 1.03-55 also issued under the authority of 46 U.S.C. 3306(j).
0
2. Add Sec. 1.03-55 to read as follows:
Sec. 1.03-55 Appeals from decisions or actions under subchapter M of
this chapter.
(a) Any person directly affected by a decision or action by a
classification society or a third-party organization performing a
survey under subchapter M of this chapter may, after requesting
reconsideration of the decision or action by the classification society
or third-party organization, make a formal appeal to the cognizant
OCMI.
(b) Any person directly affected by a decision or action by a
classification society or a third-party organization performing an
audit under subchapter M of this chapter may, after requesting
reconsideration of the decision or action by the classification society
or third-party organization, make a formal appeal to the District
Commander of the district in which the audit was performed.
(c) Any third-party organization or person from a third-party
organization directly affected by a decision or action of the Coast
Guard Towing Vessel National Center of Expertise (TVNCOE) may submit a
formal appeal to Commandant (CG-CVC) for appeals of decisions by the
TVNCOE related to subchapter M of this chapter.
(d) Any person directly affected by a decision or action by an OCMI
or District Commander may make a formal appeal pursuant to Sec. 1.03-
20 or Sec. 1.03-25, respectively.
PART 2--VESSEL INSPECTIONS
0
3. The authority citation for part 2 continues to read as follows:
Authority: Sec. 622, Pub. L. 111-281; 33 U.S.C. 1903; 43 U.S.C.
1333; 46 U.S.C. 2103, 2110, 3306, 3703; E.O. 12234, 45 FR 58801, 3
CFR, 1980 Comp., p. 277, sec. 1-105; Department of Homeland Security
Delegation No. 0170.1(II)(77), (90), (92)(a), (92)(b).
0
4. Amend Sec. 2.01-7 as follows:
0
a. In paragraph (a) introductory text, before the word ``as'', add the
word ``either''; and remove the colon, and add, in its place, the words
``or, if the vessel is a towing vessel, as provided in paragraph (b) of
this section.'';
0
b. Redesignate paragraph (b) as paragraph (c);
0
c. Add new paragraph (b) and paragraph (c)(7) to newly redesignated
paragraph (c).
The addition reads as follows:
Sec. 2.01-7 Classes of vessels (including motorboats) examined or
inspected and certificated.
* * * * *
(b)(1) A U.S.-flag towing vessel is subject to inspection and
certifying regulations in subchapter M of this chapter except:
(i) A vessel less than 26 feet (7.92 meters) in length measured
from end to end over the deck (excluding the sheer), unless that vessel
is pushing, pulling, or hauling a barge that is carrying oil or
hazardous material in bulk;
(ii) A vessel engaged in one or more of the following:
(A) Assistance towing as defined in Sec. 136.110 of this chapter;
(B) Towing recreational vessels for salvage; or
(C) Transporting or assisting the navigation of recreational
vessels within and between marinas and marina facilities, within a
limited geographic area, as determined by the local Captain of the
Port;
(iii) A workboat operating exclusively within a worksite and
performing intermittent towing within the worksite;
(iv) A seagoing towing vessel of 300 gross tons or more subject to
the provisions of subchapter I of this chapter;
(v) A vessel inspected under other subchapters of this chapter that
may perform occasional towing;
(vi) A public vessel as defined in 46 U.S.C. 2101;
(vii) A vessel which has surrendered its Certificate of Inspection
and is laid up, dismantled, or otherwise out of service; and
(viii) A propulsion unit used for the purpose of propelling or
controlling the direction of a barge where the unit is controlled from
the barge, is not normally manned, and is not utilized as an
independent vessel.
(2) A towing vessel not subject to subchapter M of this chapter
should refer to table 2.01-7 of this section.
(c) * * *
(7) For towing vessels, see part 136 of subchapter M of this
chapter.
Sec. 2.10-25 [Amended]
0
5. In Sec. 2.10-25, in the definition of ``Sea-going towing vessel'',
after the second occurrence of the word ``alongside'', add the phrase
``, that has been issued a Certificate of Inspection under the
provisions of subchapter I of this chapter''.
PART 15--MANNING REQUIREMENTS
0
6. The authority citation for part 15 is revised to read as follows:
Authority: 46 U.S.C. 2101, 2103, 3306, 3703, 8101, 8102, 8103,
8104, 8105, 8301, 8304, 8502, 8503, 8701, 8702, 8901, 8902, 8903,
8904, 8905(b), 8906 and 9102; sec. 617, Pub. L. 111-281, 124 Stat.
2905; and Department of Homeland Security Delegation No. 0170.1.
Sec. 15.501 [Amended]
0
7. Amend Sec. 15.501(b) by removing the word ``Emergency'' and adding,
in its place, the lower case word ``emergency''.
0
8. Revise Sec. 15.505 to read as follows:
Sec. 15.505 Changes in the certificate of inspection.
All requests for changes in manning as indicated on the COI must be
sent to--
(a) The Officer in Charge, Marine Inspection (OCMI) who last issued
the COI; or
(b) The OCMI conducting the inspection, if the request is made in
conjunction with an inspection for certification.
Sec. 15.510 [Amended]
0
9. Amend Sec. 15.510 by removing the word ``therefrom''.
0
10. Add Sec. 15.535 to read as follows:
Sec. 15.535 Towing vessels.
(a) Applicability. Except as provided in this paragraph (a), the
requirements in this section apply to a towing vessel subject to
subchapter M of this chapter. Vessels subject to this section must also
meet the requirements in Sec. 15.515(c). A towing vessel at least 8
meters (26 feet) in length, measured from end to end over the deck
(excluding sheer), that is not subject to subchapter M must meet the
requirements in paragraph (b) of this section if it is--
(1) A seagoing towing vessel of 300 gross tons or more subject to
the provisions of subchapter I of this chapter;
(2) A vessel inspected under other subchapters of this chapter that
may perform occasional towing; or
(3) A public vessel as defined in 46 U.S.C. 2101.
(b) Towing vessels 8 meters or more in length. Every towing vessel
of at least 8 meters (26 feet) in length, measured from end to end over
the deck (excluding sheer), must be under the direction and control of
a person
[[Page 40101]]
holding a MMC endorsed as master or mate (pilot) of towing vessels or
as master or mate of vessels of greater than 200 gross register tons,
holding a completed Towing Officer Assessment Record signed by a
designated examiner indicating that the officer is proficient in the
operation of towing vessels upon the appropriate route.
(c) Towing Vessels of Any Length on the Lower Mississippi River. In
addition to the requirements of paragraph (b) of this section, any
towing vessel operating in the pilotage waters of the Lower Mississippi
River must be under the control of an officer who holds either a first-
class pilot's endorsement for that route, or MMC officer endorsement
for the Western Rivers, or who meets the requirements of either
paragraph (c)(1) or (2) of this section, as applicable.
(1) Moving tank or hazardous material barges. To operate a towing
vessel with tank barges or a tow of barges carrying hazardous material
regulated under subchapter N or O of this chapter, the officer in
charge of the towing vessel must have completed at least 12 round trips
over this route as an observer, with at least 3 of those trips during
hours of darkness, and must provide evidence to the Coast Guard upon
request that at least 1 of the 12 round trips occurred within the last
5 years.
(2) Moving uninspected barges or no barges. To operate a towing
vessel without barges or a tow of uninspected barges, the officer in
charge of the towing vessel must have completed at least 4 round trips
over this route as an observer, with at least 1 of those trips during
hours of darkness, and must provide evidence to the Coast Guard upon
request that at least 1 of the 4 round trips occurred within the last 5
years.
0
11. Amend Sec. 15.610 as follows:
0
a. Revise the section heading;
0
b. Redesignate paragraphs (a) and (b) as paragraphs (b) and (c),
respectively;
0
c. Add new paragraph (a); and
0
d. In newly redesignated paragraph (c):
0
i. Remove the reference ``paragraph (a)'' wherever it appears, and add,
in each place, the reference ``paragraph (b)'';
0
ii. Remove the reference ``paragraphs (b)(1) or (b)(2)'' and add, in
its place, the reference ``paragraph (c)(1) or (2)''; and
0
iii. In paragraphs (c)(1) and (2), add the words ``to the Coast Guard''
immediately after the word ``evidence''.
The revision and additions read as follows:
Sec. 15.610 Master and mate (pilot) of uninspected towing vessels.
(a) The requirements in this section apply to towing vessels,
except for--
(1) Towing vessels that are subject to subchapter M in accordance
with Sec. 136.105 of this chapter;
(2) Towing vessels that are seagoing and 300 gross or more tons
subject to the provisions of subchapter I of this chapter;
(3) Towing vessels that are inspected under other subchapters of
this chapter that may perform occasional towing; and
(4) Towing vessels that are public vessels as defined in 46 U.S.C.
2101.
* * * * *
Sec. 15.815 [Amended]
0
12. In Sec. 15.815(c), remove the word ``uninspected''.
0
13. Add 46 CFR subchapter M, comprised of parts 136, 137, 138, 139,
140, 141, 142, 143, and 144, to read as follows:
SUBCHAPTER M--Towing Vessels
PART 136--CERTIFICATION
PART 137--VESSEL COMPLIANCE
PART 138--TOWING SAFETY MANAGEMENT SYSTEM (TSMS)
PART 139--THIRD-PARTY ORGANIZATIONS
PART 140--OPERATIONS
PART 141--LIFESAVING
PART 142--FIRE PROTECTION
PART 143--MACHINERY AND ELECTRICAL SYSTEMS AND EQUIPMENT
PART 144--CONSTRUCTION AND ARRANGEMENT
PART 136--CERTIFICATION
Sec.
Subpart A--General
136.100 Purpose.
136.105 Applicability.
136.110 Definitions.
136.112 Incorporation by reference.
136.115 Equivalents.
136.120 Special consideration.
136.130 Options for documenting compliance to obtain a Certificate
of Inspection.
136.172 Temporary compliance for existing towing vessels.
136.175 Approved equipment.
136.180 Appeals.
Subpart B--Certificate of Inspection
136.200 Certificate required.
136.202 Certificate of Inspection phase-in period.
136.205 Description.
136.210 Obtaining or renewing a COI.
136.212 Inspection for certification.
136.215 Period of validity.
136.220 Posting.
136.230 Routes permitted.
136.235 Certificate of Inspection amendment.
136.240 Permit to proceed.
136.245 Permit to carry an excursion party or temporary extension or
alteration of route.
136.250 Load lines.
Authority: 46 U.S.C. 3103, 3301, 3306, 3308, 3316, 8104, 8904;
33 CFR 1.05; DHS Delegation 0170.1.
Subpart A--General
Sec. 136.100 Purpose.
This part sets out the applicability for this subchapter and
describes the requirements for obtaining and renewing a Certificate of
Inspection (COI).
Sec. 136.105 Applicability.
(a) This subchapter is applicable to all U.S.-flag towing vessels
as defined in Sec. 136.110 engaged in pushing, pulling, or hauling
alongside, except--
(1) A vessel less than 26 feet (7.92 meters) in length measured
from end to end over the deck (excluding the sheer), unless that vessel
is pushing, pulling, or hauling a barge that is carrying oil or
hazardous material in bulk;
(2) A vessel engaged in one or more of the following:
(i) Assistance towing as defined in Sec. 136.110;
(ii) Towing recreational vessels for salvage; or
(iii) Transporting or assisting the navigation of recreational
vessels within and between marinas and marina facilities, within a
limited geographic area, as determined by the local Captain of the Port
(COTP);
(3) A workboat operating exclusively within a worksite and
performing intermittent towing within the worksite;
(4) A seagoing towing vessel of 300 gross tons or more subject to
the provisions of subchapter I of this chapter;
(5) A vessel inspected under other subchapters of this chapter that
may perform occasional towing;
(6) A public vessel as defined in 46 U.S.C. 2101;
(7) A vessel that has surrendered its COI and is laid up,
dismantled, or otherwise out of service; and
(8) A propulsion unit used for the purpose of propelling or
controlling the direction of a barge where the unit is
[[Page 40102]]
controlled from the barge, is not normally manned, and is not utilized
as an independent vessel.
(b) [Reserved]
Sec. 136.110 Definitions.
As used in this subchapter:
ABS Rules means the standards developed and published by the
American Bureau of Shipping regarding the design, construction and
certification of commercial vessels.
Accommodation space means any:
(1) Messroom;
(2) Lounge;
(3) Sitting area;
(4) Recreation room;
(5) Quarters;
(6) Toilet space;
(7) Shower room;
(8) Galley;
(9) Berthing space;
(10) Clothing-changing room; or
(11) A similar space open to individuals.
Anniversary date means the day and the month of each year that
corresponds to the date of expiration on the COI or Towing Safety
Management System (TSMS) Certificate.
Approval series means the first six digits of a number assigned by
the Coast Guard to approved equipment. Where approval is based on a
subpart of 46 CFR chapter I, subchapter Q, the approval series
corresponds to the number of the subpart. A list of approved equipment,
including all of the approval series, is available at http://cgmix.uscg.mil/Equipment/EquipmentSearch.aspx.
Assistance towing means towing a disabled vessel for consideration
as defined in 46 U.S.C. 2101.
Audit means a systematic, independent, and documented examination
to determine whether activities and related results comply with a
vessel's TSMS, or with another applicable Safety Management System
(SMS), and whether these planned arrangements are implemented suitably
to achieve stated objectives. This examination includes a thorough
review of appropriate reports, documents, records, and other objective
evidence to verify compliance with applicable requirements.
(1) The audit may include, but is not limited to:
(i) Examining records;
(ii) Asking responsible persons how they accomplish their assigned
duties;
(iii) Observing persons performing specific tasks within their
assigned duties;
(iv) Examining equipment to ensure proper maintenance and
operation; and
(v) Checking training records and work environments.
(2) The audit may be limited to the random selection of a
representative sampling throughout the system that presents the auditor
with sufficient, objective evidence of system compliance.
Authorized classification society means a recognized classification
society that has been delegated the authority to conduct certain
functions and certifications on behalf of the Coast Guard.
Berthing space means a space that is intended to be used for
sleeping, and is provided with installed bunks and bedding.
Bollard pull means the maximum static pulling force that a towing
vessel can exert on another vessel or on an object when its propulsion
engines are applying thrust at maximum horsepower.
Change in ownership means any change resulting in a change in the
day-to-day operational control of a third-party organization (TPO) that
conducts audits and surveys, or a change that results in a new entity
holding more than 50 percent of the ownership of the TPO.
Class Rules means the standards developed and published by a
classification society regarding the design, construction, and
certification of commercial vessels.
Coastwise means a route that is not more than 20 nautical miles
offshore on:
(1) Any ocean;
(2) The Gulf of Mexico;
(3) The Caribbean Sea;
(4) The Bering Sea;
(5) The Gulf of Alaska; or
(6) Such other similar waters as may be designated by a Coast Guard
District Commander.
Cold water means water where the monthly mean low water temperature
is normally 15 degrees Celsius (59 degrees Fahrenheit) or less.
Commandant means the Commandant of the U.S. Coast Guard or an
authorized representative of the Commandant of the U.S. Coast Guard.
Conflict of interest means a conflict between an individual's or an
organization's private interests and the interests of another party
they are providing a service to or for, including when acting in a
capacity which serves the public good.
Crewmember means crewmember as defined in 46 CFR 16.105.
Deficiency means a failure to meet the minimum requirements of the
vessel inspection laws or regulations.
Disabled vessel means a vessel that needs assistance, whether
docked, moored, anchored, aground, adrift, or under way, but does not
mean a barge or any other vessel not regularly operated under its own
power.
Downstreaming means a procedure in which a towing vessel moves
downstream with the current in order to approach and land squarely on
another object, such as a fleet, a dock, or another tow.
Drydock examination means hauling out a vessel or placing a vessel
in a drydock or slipway for an examination of all accessible parts of
the vessel's underwater body and of all through-hull fittings and
appurtenances.
Electronic position fixing device means a navigation receiver that
meets the requirements of 33 CFR 164.41.
Engine room means the enclosed space where any main-propulsion
engine is located. It comprises all deck levels within that space.
Essential system means a system that is required to ensure a
vessel's survivability, maintain safe operation, control the vessel, or
to ensure safety of onboard personnel, including:
(1) Systems for:
(i) Detection or suppression of fire;
(ii) Emergency dewatering or ballast management;
(iii) Navigation;
(iv) Internal and external communication;
(v) Vessel control, including propulsion, steering, maneuverability
and their vital auxiliaries;
(vi) Emergency evacuation and abandonment;
(vii) Lifesaving; and
(viii) Control of a tow;
(2) Any critical system identified in a SMS compliant with the
International Safety Management (ISM) Code requirements of 33 CFR part
96; and
(3) Any other marine engineering system identified in an approved
TSMS or identified by the cognizant Officer in Charge, Marine
Inspection (OCMI) as essential to the vessel's survival, ability to
maintain safe operation, ability to control the vessel, or to ensure
the safety of onboard personnel.
Excepted vessel means a towing vessel that is subject to this
subchapter but is excepted from certain provisions contained within
this subchapter. An excepted vessel is:
(1) Used solely:
(i) Within a limited geographic area, as defined in this section;
(ii) For harbor-assist, as defined in this section; or
(iii) For response to an emergency or a pollution event; or
(2) Excepted by the cognizant OCMI for purposes of some or all of
the requirements in Sec. Sec. 142.315 through 142.330, 143.235,
143.265, and subpart C of part 143 of this subchapter, based
[[Page 40103]]
on consideration of those requirements and on reasons submitted by the
vessel owner or managing operator as to why the vessel does not need to
meet these requirements for the safe operation of the vessel.
Excursion party means a temporary operation not permitted by the
vessel's COI. It is typically recreational in nature and 1 day or less
in duration.
Existing towing vessel means a towing vessel, subject to inspection
under this subchapter, that is not a new towing vessel, as defined in
this section.
External audit means an audit conducted by a party with no direct
affiliation to the vessel, owner, or managing operator being audited.
External survey program means a survey program conducted by a party
with no direct affiliation to the vessel, owner, or managing operator
being surveyed.
Fixed fire-extinguishing system means:
(1) A carbon dioxide system that meets the requirements of 46 CFR
subpart 76.15 and 46 CFR 78.47-9 and 78.47-11, and that is approved by
the Commandant;
(2) A clean agent system that satisfies the requirements in 46 CFR
subpart 95.16 and in 46 CFR 97.37-9, and is approved by the Commandant;
or
(3) A manually operated, water mist system that satisfies NFPA 750
(incorporated by reference, see Sec. 136.112) and is approved by the
Commandant.
Fleeting area means a limited geographic area, as determined by the
local COTP, where individual barges are moored or assembled to make a
tow. These barges are not in transport, but are temporarily marshaled
and waiting for pickup by different towing vessels that will transport
them to various destinations.
Galley means a space containing appliances with cooking surfaces
that may exceed 121 degrees Celsius (250 degrees Fahrenheit) such as
ovens, griddles, and deep fat fryers.
Great Lakes means a route on the waters of any of the Great Lakes
and of the St. Lawrence River as far east as a straight line drawn from
Cap de Rosiers to West Point, Anticosti Island, and west of a line
along the 63rd meridian from Anticosti Island to the north shore of the
St. Lawrence River.
Gross tons means the gross ton measurement of the vessel under 46
U.S.C. Chapter 145, Regulatory Measurement. For a vessel measured under
only 46 U.S.C. Chapter 143, Convention Measurement, the vessel's gross
tonnage measured under 46 U.S.C. Chapter 143 is used to apply all
thresholds expressed in terms of gross tons.
Harbor of safe refuge means a port, inlet, or other body of water
normally sheltered from heavy seas by land, and in which a vessel can
navigate and safely moor. The suitability of a location as a harbor of
safe refuge will be determined by the cognizant OCMI, and varies for
each vessel, dependent on the vessel's size, maneuverability, and
mooring gear.
Harbor-assist means the use of a towing vessel during maneuvers to
dock, undock, moor, or unmoor a vessel, or to escort a vessel with
limited maneuverability.
Horsepower means the horsepower stated on the vessel's COI, which
is the sum of the manufacturer's listed brake horsepower for all
installed propulsion engines.
Inland waters means the navigable waters of the United States
shoreward of the Boundary Lines as described in 46 CFR part 7,
excluding the Great Lakes and, for towing vessels, excluding the
Western Rivers.
Internal Audit means an audit that is conducted by a party that has
a direct affiliation to the vessel, owner, or managing operator being
audited.
Internal survey program means a survey program that is conducted by
a party which has a direct affiliation to the vessel, owner, or
managing operator being surveyed.
International voyage means a voyage between a country to which the
International Convention for Safety of Life at Sea, 1974, as amended
(SOLAS) applies and a port outside that country. A country, as used in
this definition, includes every territory for the international
relations of which a contracting government to the Convention is
responsible or for which the United Nations is the administering
authority. For the United States, the term ``territory'' includes the
Commonwealth of Puerto Rico, all possessions of the United States, and
all lands held by the United States under a protectorate or mandate.
For the purposes of this subchapter, vessels are not considered as
being on an ``international voyage'' when solely navigating the Great
Lakes and the St. Lawrence River as far east as a straight line drawn
from Cap des Rosiers to West Point, Anticosti Island and, on the north
side of Anticosti Island, the 63rd meridian.
Lakes, bays, and sounds means a route on any of the following
waters:
(1) A lake other than the Great Lakes.
(2) A bay.
(3) A sound.
(4) Such other similar waters as may be designated by the cognizant
Coast Guard District Commander.
Length means the horizontal distance measured from end to end over
the deck, excluding the sheer. Fittings and attachments are not
included in the length measurement.
Length between perpendiculars or LBP means the horizontal distance
measured between perpendiculars taken at the forward-most and after-
most points on the waterline corresponding to the deepest operating
draft. For a vessel that has underwater projections extending forward
of the forward-most point or aft of the after-most point on the deepest
waterline of the vessel, the Commanding Officer, U.S. Coast Guard
Marine Safety Center, may include the length or a portion of the length
of the underwater projections in the value used in the LBP for the
purposes of this subchapter. The length, or a portion of the length, of
projections that contribute more than 2 percent of the underwater
volume of the vessel is normally added to the actual LBP.
Limited coastwise means a route that is not more than 20 nautical
miles from a harbor of safe refuge, as defined in this section.
Limited geographic area means a local area of operation as
determined by the local COTP. This area is usually within a single
harbor or port.
Machinery space means any enclosed space that either contains an
installed internal combustion engine, machinery, or systems that would
raise the ambient temperature above 45 degrees Celsius (113 degrees
Fahrenheit) in all environments the vessel operates in.
Major conversion means a conversion of a vessel that:
(1) Substantially changes the dimensions or carrying capacity of
the vessel;
(2) Changes the type of the vessel;
(3) Substantially prolongs the life of the vessel; or
(4) Otherwise so changes the vessel that it is essentially a new
vessel, as determined by the Commandant.
Major non-conformity means a non-conformity that poses a serious
threat to personnel, vessel safety, or the environment, and requires
immediate corrective action.
Managing operator means an organization or person, such as the
manager or the bareboat charterer of a vessel, who has assumed the
responsibility for operation of the vessel from the vessel owner and
who, on assuming responsibility, has agreed to take over all the duties
and responsibilities imposed by this subchapter.
[[Page 40104]]
Nationally recognized testing laboratory or NRTL means an
organization that the Occupational Safety and Health Administration
(OSHA) has recognized as meeting the requirements in 29 CFR 1910.7.
These requirements are for the capability, control programs, complete
independence, and reporting and complaint-handling procedures to test
and certify specific types of products for workplace safety. This
means, in part, that an organization must have the necessary capability
both as a product safety testing laboratory and as a product
certification body to receive OSHA recognition as an NRTL.
New towing vessel means a towing vessel, subject to inspection
under this subchapter, that:
(1) Had its keel laid or was at a similar stage of construction on
or after July 20, 2017; or
(2) Underwent a major conversion that was initiated on or after
July 20, 2017.
Non-conformity means a situation where objective evidence indicates
that a specified SMS requirement is not fulfilled.
Objective evidence means quantitative or qualitative information,
records, or statements of fact pertaining to safety or to the existence
and implementation of an SMS element, which is based on observation,
measurement, or testing that can be verified. This may include, but is
not limited to, towing gear equipment certificates and maintenance
documents, training records, repair records, Coast Guard documents and
certificates, surveys, classification society reports, or TPO records.
Oceans means a route that is more than 20 nautical miles offshore
on any of the following waters:
(1) Any ocean.
(2) The Gulf of Mexico.
(3) The Caribbean Sea.
(4) The Bering Sea.
(5) The Gulf of Alaska.
(6) Such other similar waters as may be designated by the cognizant
Coast Guard District Commander.
Officer in Charge, Marine Inspection or OCMI means an officer of
the Coast Guard designated as such by the Coast Guard and who, under
the direction of the Coast Guard District Commander, is in charge of a
marine inspection zone, described in 33 CFR part 3, for the performance
of duties with respect to the inspection, enforcement, and
administration of vessel safety and navigation laws and regulations.
The ``cognizant OCMI'' is the OCMI who has immediate jurisdiction over
a vessel for the purpose of performing these duties.
Officer in charge of a (or the) navigational watch means the same
as in 46 CFR 10.107.
Oil or hazardous material in bulk, as used in this subchapter,
means that the towing vessel tows, pushes, or hauls alongside a tank
barge or barges certificated to carry cargoes under subchapters D or O
of this chapter.
Operating station means a steering station on the vessel, or the
barge being towed or pushed, from which the vessel is normally
navigated.
Owner means the owner of a vessel, as identified on the vessel's
certificate of documentation or state registration.
Persons in addition to the crew mean any people onboard the vessel,
including passengers, who are not a crewmember.
Policy means a specific statement of principles or a guiding
philosophy that demonstrates a clear commitment by management, or a
statement of values or intentions that provide a basis for consistent
decision making.
Power and lighting circuit means a branch circuit as defined in
Article 100 of NFPA's National Electrical Code (NEC) (incorporated by
reference, see Sec. 136.112) that serves any essential system,
distribution panel, lighting, motor or motor group, or group of
receptacles. Where multiple loads are served, the circuit is considered
to be the conductor run that will carry the current common to all the
loads. ``Power limited circuit'' conductors under Article 725 of the
NEC and ``instrumentation'' conductors under Article 727 of the NEC are
not considered to be power and lighting circuits.
Pressure vessel, fired or unfired, means a closed tank or cylinder
containing gas, vapor, or liquid, or a combination thereof, under
pressure greater than atmospheric pressure.
Procedure means a specification of a series of actions or
operations that must be executed in the same manner in order to
uniformly comply with applicable policies.
Protected waters means sheltered waters presenting no special
hazards, such as most rivers, harbors, and lakes, and that is not
determined to be exposed waters or partially protected waters by the
cognizant OCMI.
Propulsor means a device (e.g., propeller or water jet) that
imparts force to a column of water in order to propel a vessel,
together with any equipment necessary to transmit the power from the
propulsion machinery to the device (shafting, gearing, etc.).
Recognized classification society means a classification society
recognized by the Coast Guard in accordance with part 8 of this
chapter.
Replacement in kind means replacement of equipment or components
that have the same technical specifications as the original item and
provide the same service. If the replacement item upgrades the system
in any way, the change is not a replacement in kind.
Rescue boat means a boat designed to rescue persons in distress and
to marshal survival craft.
Rivers means a route on any river, canal, or other similar body of
water designated by the cognizant OCMI.
Safety Management System or SMS means a structured and documented
system that enables personnel involved in vessel operations or
management, as identified in the SMS, to effectively implement the
safety and environmental protection requirements of this subchapter,
and is routinely exercised and audited.
Skiff means a small auxiliary boat carried on board a towing
vessel.
Survey means an examination of the vessel, including its systems
and equipment, to verify compliance with applicable regulations,
statutes, conventions, and treaties.
Terminal gear means the additional equipment or appurtenances at
either end of the hawser or tow cable that connects the towing vessel
and its tow together. Terminal gear may include such items as winches,
thimbles, chafing gear, shackles, pendants, or bridles.
Third-party organization or TPO means an organization approved by
the Coast Guard to conduct independent verifications to assess whether
towing vessels or their TSMSs comply with applicable requirements
contained in this subchapter.
Tow means the barge(s), vessel(s), or object(s) being pulled,
pushed, or hauled alongside a towing vessel.
Towing vessel means a commercial vessel engaged in or intending to
engage in the service of pulling, pushing, or hauling alongside, or any
combination of pulling, pushing, or hauling alongside.
Towing Safety Management System or TSMS means an SMS for a towing
vessel as described in part 138 of this subchapter.
Towing vessel record or TVR means a book, notebook, or electronic
record used to document events as required by this subchapter.
Unsafe condition means a major non-conformity observed on board a
vessel, or an incident that would cause the owner or managing operator
to request
[[Page 40105]]
a permit to proceed from the Coast Guard.
Unsafe practice means a habitual or customary action or method, or
a single action, that creates a significant risk of harm to life,
property, or the marine environment, or that contravenes a recognized
standard of care contained in law; regulation; applicable international
convention; or international, national, or industry consensus standard.
Warm water means water where the monthly mean low water temperature
is normally more than 15 degrees Celsius (59 degrees Fahrenheit).
Western Rivers means the Mississippi River, its tributaries, South
Pass, and Southwest Pass, to the navigational demarcation lines
dividing the high seas from harbors, rivers, and other inland waters of
the United States, and the Port Allen-Morgan City Alternate Route, and
that part of the Atchafalaya River above its junction with the Port
Allen-Morgan City Alternate Route including the Old River and the Red
River, and those waters specified in 33 CFR 89.25 and 89.27, and such
other, similar waters as are designated by the COTP.
Workboat means a vessel that pushes, pulls, or hauls alongside
within a worksite.
Worksite means an area specified by the cognizant OCMI within which
workboats are operated over short distances for moving equipment in
support of dredging, construction, maintenance, or repair work. A
worksite may include shipyards, owner's yards, or lay-down areas used
by marine construction projects. This definition does not include the
movement of barges carrying oil or hazardous material in bulk.
Work space means any area on the vessel where the crew may be
present while on duty and performing their assigned tasks.
Sec. 136.112 Incorporation by reference.
(a) Certain material is incorporated by reference into this
subchapter with the approval of the Director of the Federal Register
under 5 U.S.C 552(a) and 1 CFR part 51. To enforce any edition other
than that specified in this section, the Coast Guard must publish a
document in the Federal Register and the material must be available to
the public. All approved material is available for inspection at the
U.S. Coast Guard, Office of Design and Engineering Standards (CG-ENG),
2703 Martin Luther King Jr. Avenue SE., Stop 7509, Washington, DC
20593-7509, and is available from the sources listed below. It is also
available for inspection at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, call 202-741-6030 or go to: http://www.archives.gov/federal_register/code_of_federalregulations/ibr_locations.html.
(b) American Boat and Yacht Council (ABYC), 613 Third Street, Suite
10, Annapolis, MD 21403, 410-990-4460, http://www.abycinc.org/.
(1) E-11 (2003)--AC and DC Electrical Systems on Boats, dated July
2003, IBR approved for Sec. 143.520(a) of this subchapter.
(2) H-2 (2000)--Ventilation of Boats Using Gasoline, dated July
2000, IBR approved for Sec. 143.520(a) of this subchapter.
(3) H-22 (2005)--Electric Bilge Pump Systems, dated July 2005, IBR
approved for Sec. 143.520(a) of this subchapter.
(4) H-24 (2007)--Gasoline Fuel Systems, dated July 2007, IBR
approved for Sec. 143.520(a) of this subchapter.
(5) H-25 (2003)--Portable Gasoline Fuel Systems, reaffirmed July
2003, IBR approved for Sec. Sec. 143.265(b) and 143.520(a) of this
subchapter.
(6) H-32 (2004)--Ventilation of Boats Using Diesel Fuel, dated July
2004, IBR approved for Sec. 143.520(a) of this subchapter.
(7) H-33 (2005)--Diesel Fuel Systems, dated July 2005, IBR approved
for Sec. Sec. 143.265(e) and 143.520(a) of this subchapter.
(8) P-1 (2002)--Installation of Exhaust Systems for Propulsion and
Auxiliary Engines, dated July 2002, IBR approved for Sec. Sec.
143.520(a) and 144.415 of this subchapter.
(9) P-4 (2004)--Marine Inboard Engines and Transmissions, dated
July 2004, IBR approved for Sec. 143.520(a) of this subchapter.
(c) American Bureau of Shipping (ABS), ABS Plaza, 16855 Northchase
Drive, Houston, TX 77060, 281-877-5800, http://www.eagle.org.
(1) Rules for Building and Classing Steel Vessels for Service on
Rivers and Intracoastal Waterways, 2007, IBR approved for Sec. Sec.
143.515(a), 143.540(b), 143.550(a), 143.580(b), and 144.205(a) of this
subchapter.
(2) Rules for Building and Classing Steel Vessels Under 90 Meters
(295 Feet) in Length, 2006, including Supplement to Part 1 (dated
January 1, 2008) and Corrigenda Notices 1 to 13 (in effect as of July
1, 2010), IBR approved for Sec. Sec. 143.515(a), 143.540(a),
143.545(b), 143.550(a), 143.555(b), 143.580(a), 143.600, and 144.205(a)
of this subchapter.
(d) American Society for Quality (ASQ), Quality Press, P.O. Box
3005, Milwaukee, WI 53201-3005, 800-248-1946, http://asq.org/.
(1) ANSI/ISO/ASQ Q9001-2000, Quality management systems--
Requirements, approved December 13, 2000, IBR approved for Sec. Sec.
138.310(d), 139.120(d) and 139.130(b) of this subchapter.
(2) [Reserved]
(e) FM Approvals, P.O. Box 9102, Norwood, MA 02062, 781-440-8000,
http://www.fmglobal.com/.
(1) Approval Standard for Storage Cabinets (Flammable and
Combustible liquids), Class Number 6050 (Standard 6050), dated December
1996, IBR approved for Sec. 142.225(c) of this subchapter.
(2) [Reserved]
(f) International Maritime Organization (IMO), Publications
Section, 4 Albert Embankment, London SE1 7SR, United Kingdom, +44 (0)20
7735 7611, http://www.imo.org/.
(1) Resolution A.520(13)--Code of Practice for the Evaluation,
Testing and Acceptance of Prototype Novel Life-saving Appliances and
Arrangements, adopted November 17, 1983, IBR approved for Sec.
141.225(c) of this subchapter.
(2) Resolution A.658(16)--Use and Fitting of Retro-Reflective
Materials on Life-saving Appliances, adopted October 19, 1989, IBR
approved for Sec. 141.340(f) of this subchapter.
(3) Resolution A.688(17)--Fire Test Procedures For Ignitability of
Bedding Components, adopted November 6, 1991, IBR approved for Sec.
144.430(b) of this subchapter.
(4) Resolution A.760(18)--Symbols Related to Life-Saving Appliances
and Arrangements, adopted November 4, 1993, IBR approved for Sec.
141.340(h) of this subchapter.
(5) International Convention for the Safety of Life at Sea, 1974,
as amended (SOLAS), Consolidated Edition (including Erratum), 2009, IBR
approved for Sec. Sec. 136.115(b), 141.105(b) and (c), and 142.205(a)
of this subchapter.
(g) International Organization for Standardization (ISO), Case
Postal 56, CH-1211 Geneva 20, Switzerland, +41 22 749 01 11, http://www.iso.org/.
(1) ISO 9001:2008(E)--International Standard: Quality management
systems--Requirements, Fourth edition, dated November 15, 2008
(corrected version dated July 15, 2009), IBR approved for Sec. Sec.
138.310(d) and 139.130(b) of this subchapter.
(2) ISO 14726:2008(E)--International Standard: Ships and marine
technology-Identification colours for the content of piping systems,
First edition, dated May 1, 2008, IBR approved for Sec. 143.250(e) of
this subchapter.
[[Page 40106]]
(h) National Fire Protection Association (NFPA), 1 Batterymarch
Park, Quincy, MA 02169, 800-344-3555, http://www.nfpa.org/.
(1) NFPA 10--Standard for Portable Fire Extinguishers, 2007
Edition, effective August 17, 2006, IBR approved for Sec. 142.240(a)
of this subchapter.
(2) NFPA 70--National Electrical Code (NEC), 2002 Edition,
effective August 2, 2001, IBR approved for Sec. Sec. 136.110,
143.555(b), and 143.565(b) of this subchapter.
(3) NFPA 302--Fire Protection Standard for Pleasure and Commercial
Motor Craft, 1998 Edition, IBR approved for Sec. Sec. 143.265(e) and
144.415 of this subchapter.
(4) NFPA 306--Standard for the Control of Gas Hazards on Vessels,
2014 Edition, effective June 17, 2013, IBR approved for Sec.
140.665(a) of this subchapter.
(5) NFPA 750--Standard on Water Mist Fire Protection Systems, 2006
Edition, effective February 16, 2006, IBR approved for Sec. 136.110.
(6) NFPA 1971--Standard on Protective Ensembles for Structural
Fire-Fighting and Proximity Fire-Fighting, 2007 Edition, effective
August 17, 2006, IBR approved for Sec. 142.226(a) of this subchapter.
(i) Society of Automotive Engineers (SAE), 400 Commonwealth Drive,
Warrendale, PA 15096, 724-776-4841, http://www.sae.org/.
(1) ANSI/SAE Z 26.1-1996, American National Standard for Safety
Glazing Materials for Glazing Motor Vehicles and Motor Vehicle
Equipment Operating on Land Highways--Safety Standard, approved August
11, 1997, IBR approved for Sec. 144.905(e) of this subchapter.
(2) SAE J1475 Revised JUN96--Hydraulic Hose Fitting for Marine
Applications, revised June 1996, IBR approved for Sec. 143.265(d) of
this subchapter.
(3) SAE J1942 Revised APR2007--Hose and Hose Assemblies for Marine
Applications, revised April 2007, IBR approved for Sec. 143.265(d) of
this subchapter.
(j) UL (formerly Underwriters Laboratories, Inc.), 12 Laboratory
Drive, Research Triangle Park, NC 27709, 919-549-1400, http://www.ul.com/.
(1) UL 217--Standard for Safety for Single and Multiple Station
Smoke Alarms, Sixth Edition, dated August 25, 2006 (including revisions
through November 20, 2012), IBR approved for Sec. 142.330(b) of this
subchapter.
(2) UL 1104--Standards for Safety for Marine Navigation Lights,
Second Edition, dated October 29, 1998, IBR approved for Sec.
143.415(a) of this subchapter.
(3) UL 1275--Standard for Safety for Flammable Liquid Storage
Cabinets, Third Edition, dated June 30, 2005 (including revisions
through February 26, 2010), IBR approved for Sec. 142.225(c) of this
subchapter.
Sec. 136.115 Equivalents.
(a) The Coast Guard may approve any arrangement, fitting,
appliance, apparatus, equipment, calculation, information, or test that
provides a level of safety equivalent to that established by any
specific provision of this subchapter. Submit requests for approval to
the Coast Guard via the cognizant OCMI. The Marine Safety Center may
require engineering evaluations and tests to verify the equivalence.
(b) The Coast Guard may accept compliance with the provisions of
SOLAS applicable to the vessel's size and route (incorporated by
reference, see Sec. 136.112), as an equivalent to specific
requirements of this subchapter. Submit requests for a determination of
equivalency for a particular vessel to the Coast Guard via the
cognizant OCMI.
(c) Alternative compliance arrangement provisions related to SMSs
are contained in Sec. 138.225 of this subchapter.
(d) Alternate compliance arrangements must be documented within the
TSMS applicable to the vessel.
Sec. 136.120 Special consideration.
Based on a review of relevant information and on the TSMS
applicable to the vessel, the cognizant OCMI who issues the COI may
give special consideration to authorizing departures from specific
requirements, when unusual circumstances or arrangements warrant such
departures and when an equivalent level of safety is provided.
Sec. 136.130 Options for documenting compliance to obtain a
Certificate of Inspection.
(a) There are two options for documenting compliance with the
requirements in this subchapter to obtain a COI:
(1) The Coast Guard option, in which all inspections of the towing
vessel are conducted by the Coast Guard, as discussed in Sec. 136.210
and parts 137 and 140 through 144 of this subchapter; or
(2) The TSMS option, as discussed in Sec. 136.210, and in parts
137 through 144 of this subchapter.
(b) Regardless of the option chosen, the Coast Guard is responsible
for issuing a towing vessel COI, and may board a vessel at any time to
verify compliance and take appropriate action.
(c) An owner or managing operator choosing the Coast Guard option
may use a management system, vessel operations manual, towing vessel
record (TVR), or logbook to meet this subchapter's recordkeeping
requirements.
(d) When submitting an application for inspection, the owner or
managing operator must specify on the application which option he or
she chooses for each particular towing vessel. Owners or managing
operators may choose different options for the individual vessels
within their fleets.
(e) Requests to change options during the period of validity of an
existing COI must be accompanied by an application to the OCMI for a
new COI. If the requirements for the new option are met, the OCMI will
issue the vessel a new COI.
Sec. 136.172 Temporary compliance for existing towing vessels.
An existing towing vessel subject to this subchapter will remain
subject to Coast Guard regulations applicable to the vessel on July 19,
2016 until either July 20, 2018 or the date the vessel obtains a COI,
whichever date is earlier.
Sec. 136.175 Approved equipment.
Where equipment in this subchapter is required to be of an approved
type, such equipment requires the specific approval of the Coast Guard.
A list of approved equipment and materials may be found online at
http://cgmix.uscg.mil/Equipment/EquipmentSearch.aspx. Any OCMI may be
contacted for information concerning approved equipment and materials.
Sec. 136.180 Appeals.
Any person directly affected by a decision or action taken under
this subchapter, by or on behalf of the Coast Guard, may appeal in
accordance with 46 CFR 1.03.
Subpart B--Certificate of Inspection
Sec. 136.200 Certificate required.
(a) A towing vessel may not be operated without having onboard a
valid COI issued by the Coast Guard as required by Sec. 136.202.
(b) Each towing vessel certificated under the provisions of this
subchapter must be in full compliance with the terms of the COI.
(c) If necessary to prevent the delay of the vessel, the Coast
Guard may issue a temporary COI to a towing vessel, pending the
issuance and delivery of the permanent COI. The temporary COI
[[Page 40107]]
must be carried in the same manner as the regular COI and is equivalent
to the permanent COI that it represents.
(d) A towing vessel on a foreign voyage between a port in the
United States and a port in a foreign country whose COI expires during
the voyage may lawfully complete the voyage without a valid COI,
provided the voyage is completed within 30 days of expiration, and
provided that the COI did not expire within 15 days of sailing on the
foreign voyage from a U.S. port.
Sec. 136.202 Certificate of Inspection phase-in period.
(a) All owners or managing operators of more than one existing
towing vessel required to have a COI by this subchapter must ensure
that each existing towing vessel under their ownership or control is
issued a valid COI according to the following schedule:
(1) By July 22, 2019, at least 25 percent of the towing vessels
must have valid COIs on board;
(2) By July 20, 2020, at least 50 percent of the towing vessels
must have valid COIs on board;
(3) By July 19, 2021, at least 75 percent of the towing vessels
must have valid COIs on board; and
(4) By July 19, 2022, 100 percent of the towing vessels must have
valid COIs on board.
(b) All owners or managing operators of only one existing towing
vessel required to have a COI by this subchapter must ensure the vessel
has an onboard, valid COI by July 20, 2020.
(c) A new towing vessel must obtain a COI before it enters into
service.
Sec. 136.205 Description.
A towing vessel's COI describes the vessel, routes that it may
travel, minimum manning requirements and total persons allowed onboard,
safety equipment and appliances required to be onboard, horsepower, and
other information pertinent to the vessel's operations as determined by
the OCMI.
Sec. 136.210 Obtaining or renewing a COI.
Owners and managing operators must submit Form CG-3752,
``Application for Inspection of U.S. Vessel,'' to the cognizant OCMI
where the inspection will take place. The owner or managing operator
must submit the application at least 30 days before the vessel will
undergo the initial inspection for certification. The owner or managing
operator must schedule an inspection for this initial certification
with the cognizant OCMI at least 3 months before the vessel is to
undergo the inspection for certification.
(a) In addition to Form CG-3752, the owner or managing operator
must submit:
(1) For initial certification:
(i) Vessel particular information; and
(ii) Number of persons in addition to the crew, if requested; or
(2) For a renewal of certification:
(i) Any changes to the information in paragraph (a)(1) of this
section; and
(ii) A description of any modifications to the vessel.
(b) In addition to Form CG-3752 and the requirements of paragraph
(a) of this section, the owner or managing operator of vessels
utilizing the TSMS option must submit:
(1) Objective evidence that the owner or managing operator and the
vessel are in compliance with the TSMS requirements in part 138 of this
subchapter; and
(2) Objective evidence that the vessel's structure, stability, and
essential systems comply with the applicable requirements of this
subchapter for the intended route and service. This objective evidence
may be in the form of a survey report issued by a TPO or another form
acceptable to the Coast Guard.
Sec. 136.212 Inspection for certification.
(a) Frequency of inspections. After a towing vessel receives its
initial COI, the OCMI will inspect a towing vessel subject to this
subchapter located in his or her jurisdiction at least once every 5
years. The OCMI must ensure that every towing vessel is of a structure
suitable for its intended route. If the OCMI deems it necessary, he or
she may direct the vessel to get underway, and may adopt any other
suitable means to test the towing vessel and its equipment.
(b) Nature of inspection. The inspection will ensure that the
vessel is in satisfactory condition and fit for the service for which
it is intended, and that it complies with the applicable statutes and
regulations for such vessels. The inspection will include inspections
of the structure, pressure vessels and their appurtenances, piping,
main and auxiliary machinery, electrical installations, lifesaving
appliances, fire detecting and extinguishing equipment, pilot boarding
equipment, and other equipment. The inspection will also determine that
the vessel is in possession of any valid certificates or licenses
issued by the Federal Communications Commission, if required. The
inspection will also include an examination of the vessel's lights,
means of making sound signals and distress signals, and pollution
prevention systems and procedures.
(c) Time of issuance of COI. The OCMI will issue a vessel a new COI
after the vessel successfully completes the inspection for
certification.
Sec. 136.215 Period of validity.
(a) A COI for a towing vessel is valid for 5 years from the date of
issue.
(b) For a towing vessel utilizing the TSMS option, the COI is
invalid upon the expiration or revocation of the owner or managing
operator TSMS certificate or the ISM Code Certificate.
(c) A COI may be suspended and withdrawn or revoked by the
cognizant Officer in Charge, Marine Inspection at any time for
noncompliance with the requirements of this subchapter.
Sec. 136.220 Posting.
(a) The original COI must be framed under glass or other
transparent material and posted in a conspicuous place onboard the
towing vessel.
(b) If posting is impracticable, the COI must be kept on board in a
weathertight container and must be readily available.
Sec. 136.230 Routes permitted.
(a) The area of operation for each towing vessel and any necessary
operational limits are determined by the cognizant OCMI and recorded on
the vessel's COI. Each area of operation, referred to as a route, is
described on the COI under the major headings ``Oceans,''
``Coastwise,'' ``Limited Coastwise,'' ``Great Lakes,'' ``Lakes, Bays,
and Sounds,'' or ``Rivers,'' as applicable. Additional limitations
imposed or extensions granted are described by reference to bodies of
waters, geographical points, distances from geographical points,
distances from land, depths of channel, seasonal limitations, and
similar factors.
(b) Operation of a towing vessel on a route of lesser severity than
those specifically described or designated on the COI is permitted,
unless the route is expressly prohibited on the COI. The general order
of decreasing severity of routes is: Oceans; coastwise; limited
coastwise; Great Lakes; lakes, bays, and sounds; and rivers. The
cognizant OCMI may prohibit a vessel from operating on a route of
lesser severity than the primary route on which a vessel is authorized
to operate, if local conditions necessitate such a restriction.
(c) When designating a permitted route or imposing any operational
limits on a towing vessel, the cognizant OCMI may consider:
(1) The route-specific requirements of this subchapter;
(2) The performance capabilities of the vessel based on design,
scantlings, stability, subdivision, propulsion,
[[Page 40108]]
speed, operating modes, maneuverability, and other characteristics;
(3) The suitability of the vessel for nighttime operations and use
in all weather conditions;
(4) Vessel operations in globally remote areas or severe
environments not covered by this subchapter. Such areas may include,
but are not limited to, polar regions, remote islands, areas of extreme
weather, or other remote areas where timely emergency assistance cannot
be anticipated; and
(5) The TSMS applicable to the vessel, if the vessel has one.
Sec. 136.235 Certificate of Inspection amendment.
(a) An amended COI may be issued at any time by the cognizant OCMI.
The amended COI replaces the original, but the expiration date remains
the same as that of the original. An amended COI may be issued to
authorize and record a change in the dimensions, gross tonnage, owner,
managing operator, manning, persons permitted, route permitted,
conditions of operations, or equipment of a towing vessel, from that
specified in the current COI.
(b) The owner or managing operator of the towing vessel must make a
request for an amended COI to the cognizant OCMI any time there is a
change in the character of the vessel or in its route, equipment,
ownership, operation, or similar factors specified in its current COI.
The OCMI may need to conduct an inspection before issuing an amended
COI.
(c) For those vessels selecting the TSMS option, the owner or
managing operator of the towing vessel must provide to the OCMI
objective evidence of compliance with the requirements in this
subchapter prior to the issuance of an amended COI. The evidence must:
(1) Be from a TPO and prepared in accordance with parts 138 and 139
of this subchapter; and
(2) Consider the change in the character of a vessel or in its
route, equipment, ownership, operation, or similar factors specified in
the vessel's current COI.
Sec. 136.240 Permit to proceed.
Permission to proceed to another port for repairs (Form CG-948) may
be required for a towing vessel that is no longer in compliance with
its COI. This permission may be necessary in certain situations,
including damage to the vessel, failure of an essential system, or
failure to comply with a regulation, including failure to comply with
the TSMS requirements, if appropriate.
(a) What a vessel with a TSMS must do before proceeding to another
port for repairs. A vessel with a TSMS may proceed to another port for
repair, if:
(1) In the judgment of the owner, managing operator, or master, the
trip can be completed safely;
(2) The TSMS addresses the condition of the vessel that has
resulted in non-compliance and the necessary conditions under which the
vessel may safely proceed to another port for repair;
(3) The vessel proceeds as provided in the TSMS and does not tow
while proceeding, unless the owner or managing operator determines that
it is safe to do so; and
(4) The owner or managing operator notifies the cognizant OCMI in
whose zone the non-compliance occurred or is discovered, before the
vessel proceeds. The owner or operator must also notify the cognizant
OCMI in any other OCMI zones through which the vessel will transit.
(b) What another vessel must do before proceeding to another port
for repairs. If a vessel does not have a TSMS, or a vessel has one but
it does not address the condition of the vessel that has resulted in
non-compliance or the necessary conditions under which the vessel may
safely proceed to another port for repair, the owner, managing
operator, or master must request permission to proceed from the
cognizant OCMI in whose zone the non-compliance occurs or is
discovered. This permission operates as follows:
(1) The request for permission to proceed may be made
electronically, in writing, or orally. The cognizant OCMI may require a
written description, a damage survey, or other documentation to assist
in determining the nature and seriousness of the non-compliance.
(2) The vessel will not engage in towing, unless the cognizant OCMI
determines it is safe to do so.
(3) The Coast Guard may issue the permit either on Form CG-948,
``Permit to Proceed to Another Port for Repairs,'' or in letter form,
and will state the conditions under which the vessel may proceed to
another port for repair.
(c) Inspection or examination. The cognizant OCMI may require an
inspection of the vessel by a Coast Guard Marine Inspector or an
examination by a surveyor from a TPO prior to the vessel proceeding.
Sec. 136.245 Permit to carry excursion party or temporary extension
or alteration of route.
(a) A towing vessel must obtain approval to engage in an excursion
prior to carrying a greater number of persons than permitted by the
COI, or to temporarily extend or alter its area of operation.
(b) For a vessel utilizing the TSMS option, the vessel may engage
in an excursion, if:
(1) In the opinion of the owner, managing operator, or master the
operation can be undertaken safely;
(2) The TSMS addresses the temporary excursion operation
contemplated; the necessary conditions under which the vessel may
safely conduct the operation, including the number of persons the
vessel may carry; the crew required; and any additional lifesaving or
safety equipment required;
(3) The vessel proceeds as provided in the TSMS; and
(4) The owner, managing operator, or master notifies the cognizant
OCMI at least 48 hours prior to the temporary excursion operation. The
cognizant OCMI may require submission of pertinent provisions of the
TSMS applicable to the vessel for review and onboard verification of
compliance. If the cognizant OCMI has reasonable cause to believe that
the TSMS applicable to the vessel is insufficient for the intended
excursion, additional information may be requested and/or additional
requirements may be imposed.
(c) If the towing vessel is not under a TSMS, or the TSMS
applicable to the vessel does not address the temporary excursion
operation:
(1) The owner or managing operator must submit an application to
the cognizant OCMI. The application must state the intended route,
number of passengers or guests, and any other conditions applicable to
the excursion that exceed those specified in its COI.
(2) The cognizant OCMI may issue the permit either on Form CG-949,
``Permit To Carry Excursion Party,'' or in letter form. The cognizant
OCMI will indicate on the permit the conditions under which it is
issued, the number of persons the vessel may carry, the crew required,
any additional lifesaving or safety equipment required, the route for
which the permit is granted, and the dates on which the permit is
valid. The application may be made electronically, in writing, or
orally.
(3) The vessel may not engage in towing during the excursion,
unless the cognizant OCMI determines it is safe to do so.
(d) The cognizant OCMI may require an inspection of the vessel by a
Coast Guard Marine Inspector or an examination by a surveyor from a TPO
prior to the vessel proceeding.
Sec. 136.250 Load lines.
Vessels described in Table 136.250 of this section that operate on
the Great Lakes or outside the Boundary Lines, as
[[Page 40109]]
set forth in 46 CFR part 7, are subject to load line requirements in
subchapter E of this chapter in the following circumstances:
Table 136.250
------------------------------------------------------------------------
Is subject to load line requirements
A vessel that-- in subchapter E of this chapter if
it is--
------------------------------------------------------------------------
(a) Is on an international voyage-- (1) Seventy nine (79) feet (24
. meters) or more in length and built
on or after July 21, 1968; or
(2) One hundred and fifty (150)
gross tons or more if built before
July 21, 1968.
(b) Is on a domestic voyage--..... (1) Seventy nine (79) feet (24
meters) or more in length and built
on or after January 1, 1986; or
(2) One hundred and fifty (150)
gross tons or more if built before
January 1, 1986.
------------------------------------------------------------------------
PART 137--VESSEL COMPLIANCE
Sec.
Subpart A--General
137.100 Purpose.
137.120 Responsibility for compliance.
137.130 Program for vessel compliance for the Towing Safety
Management System (TSMS) option.
137.135 Reports and documentation required for the TSMS option.
Subpart B--Inspections and Surveys for Certification
137.200 Documenting compliance for the Coast Guard inspection
option.
137.202 Documenting compliance for the TSMS option.
137.205 External survey program.
137.210 Internal survey program.
137.212 Coast Guard oversight of vessel survey program for vessels
under the TSMS option.
137.215 General conduct of survey.
137.220 Scope.
Subpart C--Drydock and Internal Structural Surveys
137.300 Intervals for drydock and internal structural examinations.
137.302 Documenting compliance for the Coast Guard inspection
option.
137.305 Documenting compliance for the TSMS option.
137.310 External survey program.
137.315 Internal survey program.
137.317 Coast Guard oversight of drydock and internal structural
examination program for vessels under the TSMS option.
137.320 Vessels holding a valid load line certificate.
137.322 Classed vessels.
137.325 General conduct of examination.
137.330 Scope of the drydock examination.
137.335 Underwater survey in lieu of drydocking.
Authority: 46 U.S.C. 3103, 3301, 3306, 3308, 3316, 8104, 8904;
33 CFR 1.05; DHS Delegation 0170.1.
Subpart A--General
Sec. 137.100 Purpose.
This part describes the procedures owners or managing operators of
towing vessels must use to demonstrate compliance with the requirements
of this subchapter.
Sec. 137.120 Responsibility for compliance.
(a) The owner and managing operator must ensure that the towing
vessel is in compliance with this subchapter and other applicable laws
and regulations at all times.
(b) Non-conformities and deficiencies must be corrected in a timely
manner.
Sec. 137.130 Program for vessel compliance for the Towing Safety
Management System (TSMS) option.
The owner or managing operator of a towing vessel choosing to use
the TSMS option must implement an external or internal survey program
for vessel compliance. The program for vessel compliance can be either:
(a) An external survey program, in which the owner or managing
operator would have a third-party organization (TPO) conduct either the
surveys required by Sec. 137.205, the examinations required by Sec.
137.310, or both; or
(b) An internal survey program, in which the owner or managing
operator would conduct either the surveys required by Sec. 137.210,
the examinations required by Sec. 137.315, or both, using internal
resources or contracted surveyors. The internal survey program would be
conducted with the oversight of a TPO.
(c) Each program of either type must include:
(1) Owner or managing operator policy regarding the surveying and
examination of towing vessels;
(2) Procedures for conducting towing vessel surveys and
examinations, as described in this part;
(3) Procedures for reporting and correcting non-conformities and
deficiencies;
(4) Identification of the individual or individuals responsible for
the management of the program, and their qualifications; and
(5) Documentation of compliance activities.
Sec. 137.135 Reports and documentation required for the TSMS option.
(a) The TSMS option requires a report detailing each internal
survey of a towing vessel. Each report must include:
(1) Vessel name;
(2) Other vessel identifier, such as an official number or State
number;
(3) Name and business address of owner or managing operator;
(4) Date and location of the survey;
(5) Date the report of the survey was issued, if different than the
date the survey was concluded;
(6) Name of the surveyors;
(7) Name and business address of the TPO the surveyors represent,
if applicable;
(8) Signatures of surveyors;
(9) A descriptive list of the items examined or witnessed during
each survey;
(10) A descriptive list of all non-conformities identified during
each survey, including those that were corrected during the course of
the survey;
(11) A descriptive list of:
(i) All non-conformities remaining at the end of each survey;
(ii) The required corrective actions;
(iii) The latest date of required corrective action; and
(iv) A description of the means by which the corrective actions
were verified;
(12) A descriptive list of items that need to be repaired or
replaced before the vessel continues service; and
(13) A statement that the vessel complies with the applicable
requirements of this subchapter and is fit for its route and service,
subject to the correction of non-conformities.
(b) The owner or managing operator must provide objective evidence
of compliance with this part in accordance with the TSMS applicable to
the vessel.
Subpart B--Inspections and Surveys for Certification
Sec. 137.200 Documenting compliance for the Coast Guard inspection
option.
A towing vessel subject to this subchapter and choosing the Coast
Guard inspection option, or required to have the Coast Guard inspection
option, must undergo an annual inspection within 3 months before or
after the COI anniversary date.
(a) Owners and managing operators must contact the cognizant
Officer in
[[Page 40110]]
Charge, Marine Inspection (OCMI) to schedule an inspection at a time
and place the OCMI approves. No written application is required.
(b) Annual inspections will be similar to the inspection for
certification but will cover less detail unless the marine inspector
finds deficiencies or determines that a major change has occurred since
the last inspection. If the marine inspector finds deficiencies or
finds that a major change to the vessel has occurred, he or she will
conduct a more detailed inspection to ensure that the vessel is in
satisfactory condition and fit for the service for which it is
intended. If the vessel passes the annual inspection, the Coast Guard
will endorse the vessel's current Certificate of Inspection (COI).
(c) If the annual inspection reveals the need, the owner or
managing operator must make any or all repairs or improvements within
the time period specified by the OCMI. The OCMI may use Form CG-835,
``Notice of Merchant Marine Inspection Requirements,'' to record
deficiencies discovered during the inspection. The OCMI will then give
a copy of the completed form to the master of the vessel.
(d) Nothing in this subpart limits the marine inspector from
conducting any tests or inspections he or she deems necessary to be
assured of the vessel's seaworthiness or fitness for its route and
service.
Sec. 137.202 Documenting compliance for the TSMS option.
The owner or managing operator of a towing vessel that chooses the
TSMS option for a towing vessel must document compliance with this
subpart as follows:
(a) Prior to obtaining the vessel's initial COI, the owner or
managing operator must provide a report to the Coast Guard of a survey
as described in Sec. 137.215 that demonstrates that the vessel
complies the requirements of this part.
(b) For the re-issuance of the vessel's COI, the owner or managing
operator must:
(1) Provide objective evidence of an external survey program as
described in Sec. 137.205; or
(2) Provide objective evidence of an internal survey program as
described in Sec. 137.210.
Sec. 137.205 External survey program.
(a) The owner or managing operator of a towing vessel that has
selected the TSMS option and who has chosen to demonstrate compliance
through an external survey program must:
(1) Have the vessel surveyed annually by a surveyor from a TPO;
(2) Ensure the survey is conducted in accordance with Sec.
137.215;
(3) Ensure the survey is conducted within 3 months of the
anniversary date of the COI;
(4) Ensure the TSMS applicable to the vessel includes policies and
procedures for complying with this section; and
(5) Make the applicable sections of the TSMS available to the
surveyor.
(b) The TPO must issue a report that meets the requirements in
Sec. 137.135.
Sec. 137.210 Internal survey program.
(a) The owner or managing operator of a towing vessel that has
selected the TSMS option and who has chosen to demonstrate vessel
compliance through an internal survey program must ensure that the TSMS
applicable to the vessel includes:
(1) Procedures for surveying and testing described in Sec.
137.215;
(2) Equipment, systems, and onboard procedures to be surveyed;
(3) Identification of items that would need repair or replacement
before the vessel could continue in service, such as deficiencies
identified on Form CG-835, ``Notice of Merchant Marine Inspection
Requirements,'' noted survey deficiencies, non-conformities, or other
corrective action reports;
(4) Procedures for documenting and reporting non-conformities and
deficiencies;
(5) Procedures for reporting and correcting major non-conformities;
(6) The responsible person or persons in management who have the
authority to:
(i) Stop all vessel operations pending the correction of non-
conformities and deficiencies;
(ii) Oversee vessel compliance activities; and
(iii) Track and verify that non-conformities and deficiencies were
corrected;
(7) Procedures for recordkeeping; and
(8) Procedures for assigning personnel with requisite experience
and expertise to carry out the elements of the survey.
(b) The owner or managing operator is not required to survey the
items as described in Sec. 137.220 as one event, but may survey items
on a schedule over time, provided that the interval between successive
surveys of any item does not exceed 1 year, unless otherwise
prescribed.
Sec. 137.212 Coast Guard oversight of vessel survey program for
vessels under the TSMS option.
If the cognizant OCMI has reasonable cause to believe that a
vessel's survey program is deficient, that OCMI may:
(a) Require an audit or survey of the vessel in the presence of a
representative of the cognizant OCMI;
(b) Increase the frequency of the audits;
(c) For vessels under the internal survey program, require that the
vessel comply with the external survey program requirements of Sec.
137.205;
(d) Require any other specific action within his or her authority
that he or she considers appropriate; or
(e) For repeatedly deficient surveys, remove the vessel and or
owner or managing operator from using the TSMS option.
Sec. 137.215 General conduct of survey.
(a) When conducting a survey of a towing vessel as required by this
subpart, the surveyor must determine that the item or system functions
as designed, is free of defects or modifications that reduce its
effectiveness, is suitable for the service intended, and functions
safely in a manner consistent for vessel type, service and route.
(b) The survey must address the items in Sec. 137.220 as
applicable, and must include:
(1) A review of certificates and documentation held on the vessel;
(2) A visual examination and tests of the vessel and its equipment
and systems in order to confirm that their condition is properly
maintained and that proper quantities are onboard;
(3) A visual examination of the systems used in support of drills
or training to determine that the equipment utilized during a drill
operates as intended; and
(4) A visual examination to confirm that unapproved modifications
were not made to the vessel or its equipment.
(c) Beyond the minimum standards required by this section, the
thoroughness and stringency of the survey will depend upon the
condition of the vessel and its equipment. If a surveyor finds a vessel
to have multiple deficiencies indicative of systematic failures to
maintain the installed equipment, he or she will conduct an expanded
examination to ensure all deficiencies are identified and corrective
action is promptly taken.
(d) The owner or managing operator must notify the cognizant OCMI
when the condition of the vessel, its equipment, systems, or
operations, create an unsafe condition.
(e) The cognizant OCMI may require that the owner or managing
operator provide for the attendance of a surveyor or auditor from a TPO
to assist with verifying compliance with this part.
[[Page 40111]]
Sec. 137.220 Scope.
The owner or managing operator of a towing vessel that has selected
the TSMS option must examine or must have examined the following
systems, equipment, and procedures to ensure that the vessel and its
equipment are suitable for the service for which the vessel is
certificated:
(a) TSMS. (1) Verify that the vessel is enrolled in a TSMS that
complies with part 138 of this subchapter.
(2) Verify that the policies and procedures applicable to the
vessel are available to the crew.
(3) Verify that internal and external audits are conducted in
accordance with the approved TSMS.
(4) Verify that recordkeeping requirements are met.
(b) Hull structure and appurtenances. Verify that the vessel
complies with part 144 of this subchapter, examine the condition of,
and where appropriate, witness the operation of the following:
(1) All accessible parts of the exterior and interior of the hull,
the watertight bulkheads, and weather decks.
(2) All watertight closures in the hull, decks, and bulkheads,
including through hull fittings and sea valves.
(3) Superstructure, masts, and similar arrangements constructed on
the hull.
(4) Railings and bulwarks and their attachments to the hull
structure.
(5) The presence of appropriate guards or rails.
(6) All weathertight closures above the weather deck and the
provisions for drainage of sea water from the exposed decks.
(7) Watertight doors, verifying local and remote operation and
proper fit.
(8) All accessible interior spaces to ensure that they are
adequately ventilated and drained, and that means of escape are
maintained and operate as intended.
(9) Vessel markings.
(c) Machinery, fuel, and piping systems. Verify that the vessel
complies with applicable requirements contained in part 143 of this
subchapter, examine the condition of, and where appropriate, witness
the operation of:
(1) Engine control mechanisms, including primary and alternate
means, if the vessel is equipped with alternate means, of starting
machinery, directional controls, and emergency shutdowns;
(2) All machinery essential to the routine operation of the vessel,
including generators and cooling systems;
(3) All fuel systems, including fuel tanks, tank vents, piping, and
pipe fittings;
(4) All valves in fuel lines, including local and remote operation;
(5) All overboard discharge and intake valves and watertight
bulkhead pipe penetration valves;
(6) Means provided for pumping bilges; and
(7) Machinery shut-downs and alarms.
(d) Steering systems. Examine the condition of, and where
appropriate, witness the operation of:
(1) Steering systems and equipment ensuring smooth operation;
(2) Auxiliary means of steering, if installed; and
(3) Alarms.
(e) Pressure vessels and boilers. Verify that the vessel complies
with applicable requirements in part 143 of this subchapter.
(f) Electrical. Verify that the vessel complies with applicable
requirements in part 143 of this subchapter, examine the condition of,
and where appropriate, witness the operation of:
(1) All cables, as far as practicable, without undue disturbance of
the cable or electrical apparatus;
(2) Circuit breakers, including testing by manual operation;
(3) Fuses, including ensuring the ratings of fuses are suitable for
the service intended;
(4) All generators, motors, lighting fixtures, and circuit
interrupting devices;
(5) Batteries including security of stowage;
(6) Electrical equipment, which operates as part of or in
conjunction with a fire detection or alarm system installed onboard, to
ensure operation in case of fire; and
(7) All emergency electrical systems, including any automatic
systems if installed.
(g) Lifesaving. Verify that the vessel complies with applicable
requirements contained in part 141 of this subchapter and examine the
condition of lifesaving equipment and systems as follows:
(1) Verify that the vessel is equipped with the required number of
lifejackets, work vests, and immersion suits.
(2) Verify the serviceable condition of each lifejacket, work vest,
and marine buoyant device.
(3) Verify that each item of lifesaving equipment found to be
defective has been repaired or replaced.
(4) Verify that each lifejacket, other personal floatation device,
or other lifesaving device found to be defective and incapable of
repair was destroyed or removed.
(5) Verify that each piece of expired lifesaving equipment has been
replaced.
(6) Examine each survival craft and launching appliance in
accordance with subchapter W of this chapter.
(7) Verify the servicing of each inflatable liferaft, inflatable
buoyant apparatus, and inflatable lifejacket as required by subchapter
W of this chapter.
(8) Verify the proper servicing of each hydrostatic release unit,
other than a disposable hydrostatic release unit, as required under
subchapter W of this chapter.
(9) Verify that the vessel's crew conducted abandon ship and man
overboard drills under simulated emergency conditions.
(h) Fire protection. Verify that the vessel complies with
applicable requirements contained in part 142 of this subchapter, and
examine or verify the fire protection equipment and systems as follows:
(1) Verify that the vessel is equipped with the required fire
protection equipment for the vessel's route and service.
(2) Verify that the inspection, testing, and maintenance as
required by Sec. 142.240 of this subchapter are performed.
(3) Verify that the training requirements of Sec. 142.245 of this
subchapter are carried out.
(i) Towing gear. Verify that the vessel complies with the
applicable requirements in parts 140 of this subchapter, and examine or
verify the condition of, and where appropriate, the operation of the
following:
(1) Deck machinery including controls, guards, alarms and safety
features.
(2) Hawsers, wires, bridles, push gear, and related vessel fittings
for damage or wear.
(3) Verify that the vessel complies with 33 CFR part 164, if
applicable.
(j) Navigation equipment. Verify that the vessel complies with the
applicable requirements in part 140 of this subchapter, and examine or
verify the condition of and, where appropriate, the operation of the
following:
(1) Navigation systems and equipment.
(2) Navigation lights.
(3) Navigation charts or maps appropriate to the area of operation
and corrected up to date.
(4) Examine the operation of equipment and systems necessary to
maintain visibility through the pilothouse windows.
(5) Verify that the vessel complies with 33 CFR part 164, if
applicable.
(k) Sanitary examination. Examine the quarters, toilet and washing
spaces, galleys, serving pantries, lockers, and similar spaces to
ensure that they are clean and decently habitable.
(l) Unsafe practices. (1) Verify that all observed unsafe
practices, fire hazards,
[[Page 40112]]
and other hazardous situations are corrected, and that all required
guards and protective devices are in satisfactory condition.
(2) Verify that bilges and other spaces are free of excessive
accumulation of oil, trash, debris, or other matter that might create a
fire hazard, clog bilge pumping systems, or block emergency escapes.
(m) Vessel personnel. Verify that the:
(1) Vessel is manned in accordance with the vessel's COI;
(2) Crew is maintaining vessel logs and records in accordance with
applicable regulations and the TSMS appropriate to the vessel;
(3) Crew is complying with the crew safety and personnel health
requirements of part 140 of this subchapter; and
(4) Crew has received training required by parts 140, 141, and 142
of this subchapter.
(n) Prevention of oil pollution. Examine the vessel to ensure
compliance with the oil pollution prevention requirements in Sec.
140.655 of this subchapter.
(o) Miscellaneous systems and equipment. Examine all items in the
vessel's outfit, such as ground tackle, markings, and placards that are
required to be carried in accordance with the regulations in this
subchapter.
Subpart C--Drydock and Internal Structural Surveys
Sec. 137.300 Intervals for drydock and internal structural
examinations.
(a) Regardless of the option chosen to obtain a COI, upon obtaining
a COI each towing vessel must then undergo a drydock and internal
structural examination at the following intervals:
(1) A vessel that is exposed to salt water more than 6 months in
any 12-month period since the last examination or initial certification
must undergo a drydock and internal structural examination at least
twice every 5 years, with not more than 36 months between examinations.
(2) A vessel that is exposed to salt water not more than 6 months
in any 12-month period since the last examination or initial
certification must undergo a drydock and internal structural
examination at least once every 5 years.
(b) The cognizant OCMI may require additional examinations of the
vessel whenever he or she discovers or suspects damage or deterioration
to hull plating or structural members that may affect the seaworthiness
or fitness for the route or service of a vessel. These examinations may
include a drydock examination, including:
(1) An internal structural examination of any affected space of a
vessel, including its fuel tanks;
(2) A removal of the vessel from service to assess the extent of
the damage and to affect permanent repairs; or
(3) An adjustment of the drydock examination intervals to monitor
the vessel's structural condition.
Sec. 137.302 Documenting compliance for the Coast Guard inspection
option.
The managing owner or managing operator of a towing vessel, who has
selected the Coast Guard inspection option, must make their vessel
available for the Coast Guard to conduct the examinations required by
this subpart in accordance with the intervals prescribed in Sec.
137.300.
Sec. 137.305 Documenting compliance for the TSMS option.
The owner or managing operator of a towing vessel, who has selected
the TSMS option, must document compliance with this subpart as follows:
(a) For vessels under the external survey program, provide
objective evidence of compliance with Sec. 137.310.
(b) For vessels under the internal survey program, provide
objective evidence of compliance with Sec. 137.315.
(c) Provide objective evidence that the vessel has undergone a
drydock and internal structural examination, including options
permitted in Sec. 137.320 or Sec. 137.322.
Sec. 137.310 External survey program.
(a) The owner or managing operator of a towing vessel that has
selected the TSMS option and who has chosen to demonstrates compliance
through an external survey program must:
(1) Have the vessel examined by a surveyor from a TPO at the
intervals prescribed in Sec. 137.300;
(2) Ensure the examination is conducted in accordance with Sec.
137.325;
(3) Ensure the TSMS applicable to the vessel includes policies and
procedures for complying with this section; and
(4) Make the applicable sections of the TSMS available to the
surveyor.
(b) The drydock examination and internal structural examination
must be documented in a report that contains the information required
in Sec. 137.135.
Sec. 137.315 Internal survey program.
(a) The owner or managing operator of a towing vessel that has
selected the TSMS option and who has chosen to demonstrate vessel
compliance with this subpart through an internal survey program must
ensure that the TSMS applicable to the vessel includes:
(1) A survey program that meets the requirements contained in Sec.
137.325;
(2) Qualifications of the personnel authorized to carry out a
survey program that are comparable to the requirements of a surveyor
from a TPO as described in Sec. 139.130 of this subchapter;
(3) Procedures for documenting and reporting non-conformities and
deficiencies;
(4) Procedures for reporting and correcting major non-conformities;
(5) The identification of a responsible person in management who
has the authority to stop all vessel operations pending corrections, to
oversee vessel compliance activities, and to track and verify the
corrections of non-conformities and deficiencies; and
(6) Objective evidence that supports the completion of all elements
of a vessel's drydock and internal structural examinations.
(b) The owner or managing operator must notify the TPO responsible
for auditing the TSMS whenever activities related to credit drydocking
or internal structural examinations are to be carried out prior to
commencing the activities.
(c) The interval between examinations of each item may not exceed
the applicable interval described in Sec. 137.300.
(d) The owner or managing operator must notify the cognizant OCMI
of the zone within which activities related to credit drydocking or
internal structural examinations are to be carried out prior to
commencing the activities.
Sec. 137.317 Coast Guard oversight of drydock and internal structural
examination program for vessels under the TSMS option.
If the cognizant OCMI has reasonable cause to believe the program
for the drydock examination and internal structural examination is
deficient, he or she may:
(a) Require an audit of ongoing drydocking procedures and of
documentation applicable to the vessel, in the presence of a
representative of the cognizant OCMI;
(b) Increase the frequency of the audits;
(c) For vessels under the internal survey program, require an
examination by a TPO;
(d) Require any other action within his or her authority that he or
she considers appropriate; or
(e) For continued deficiencies, remove the vessel, owner, managing
operator, or all three, from the TSMS option.
[[Page 40113]]
Sec. 137.320 Vessels holding a valid load line certificate.
A drydock and internal structural examination performed for a
towing vessel to maintain a valid load line certificate issued in
accordance with subchapter E of this chapter would count as an
examination required under Sec. 137.300.
Sec. 137.322 Classed vessels.
(a) A drydock and internal structural examination performed for a
towing vessel to maintain class by the American Bureau of Shipping in
accordance with their rules, as appropriate for the intended service
and routes, would count as an examination required under Sec. 137.300.
(b) A drydock and internal structural examination performed for a
towing vessel to maintain class by a recognized classification society
in accordance with their rules, as appropriate for the intended service
and routes, would count as an examination required under Sec. 137.300,
provided the Coast Guard has accepted their applicable rules.
Sec. 137.325 General conduct of examination.
(a) When conducting an examination of a towing vessel as required
by this subpart, the surveyor must determine whether any defect,
deterioration, damage, or modifications of the hull and related
structure and components may adversely affect the vessel's
seaworthiness or fitness or suitability for its route or service.
(b) The examination must address the items in Sec. 137.330 as
applicable, and must include:
(1) Access to internal spaces as appropriate;
(2) A visual examination of the external structure of the vessel to
confirm that the condition is properly maintained; and
(3) A visual examination to confirm that unapproved modifications
were not made to the vessel.
(c) The thoroughness and stringency of the examination will depend
upon the condition of the vessel.
(d) The owner or managing operator must notify the cognizant OCMI
when the condition of the vessel may create an unsafe condition.
(e) The cognizant OCMI may require the owner or managing operator
to provide for the attendance of a surveyor or auditor from a TPO to
assist with verifying the vessel's compliance with the requirements in
this subpart.
Sec. 137.330 Scope of the drydock examination.
(a) This regulation applies to all towing vessels covered by this
subchapter. The drydock examination must be conducted while the vessel
is hauled out of the water or placed in a drydock or slipway. The Coast
Guard inspector or surveyor conducting this examination must:
(1) Examine the exterior of the hull, including bottom, sides,
headlog, and stern, and examine all appendages for damage, fractures,
wastage, pitting, or improper repairs;
(2) Examine each tail shaft for bends, cracks, and damage,
including the sleeves or other bearing contact surfaces on the tail
shaft for wear. The tail shaft need not be removed for examination if
these items can otherwise be properly evaluated;
(3) Examine the rudders for damage, the upper and lower bearings
for wear, and the rudder stock for damage or wear. Rudders need not be
removed for examination if these items can be otherwise properly
evaluated. This also includes other underwater components of steering
and propulsion mechanisms;
(4) Examine the propellers for cracks and damage;
(5) Examine the exterior components of the machinery cooling system
for leaks, damage, or deterioration;
(6) Open and examine all sea chests, through-hull fittings, and
strainers for damage, deterioration, or fouling; and
(7) On wooden vessels, pull fastenings as required for examination.
(b) An internal structural examination required by this part may be
conducted while the vessel is afloat or while it is out of the water.
It consists of a complete examination of the vessel's main strength
members, including the major internal framing, the hull plating and
planking; voids; and ballast, cargo, and fuel oil tanks. Where the
internal framing, plating, or planking of the vessel is concealed,
sections of the lining, ceiling, or insulation may be removed or the
parts otherwise probed or exposed to determine the condition of the
hull structure. Fuel oil tanks need not be cleaned out and internally
examined if the general condition of the tanks is determined to be
satisfactory by an external examination.
Sec. 137.335 Underwater survey in lieu of drydocking.
(a) This section applies to all towing vessels subject to this
subchapter. If a TSMS is applicable to the vessel, the TSMS may include
policies and procedures for employing and documenting an underwater
survey in lieu of drydocking (UWILD). A vessel is eligible for UWILD if
the Coast Guard determines that:
(1) There is no obvious damage or defect in the hull adversely
affecting the seaworthiness or fitness for the vessel's route or
service;
(2) The vessel has been operated satisfactorily since the last
drydocking;
(3) The vessel is less than 15 years of age;
(4) The vessel has a steel or aluminum hull; and
(5) The vessel is fitted with a hull protection system.
(b) The owner or managing operator must submit an application to
the cognizant OCMI at least 90 days before the vessel's next required
drydock examination. The application must include:
(1) The procedure for carrying out the underwater survey;
(2) The time and place of the underwater survey;
(3) The method used to accurately determine the diver's or the
remotely operated vehicle's location relative to the hull;
(4) The means for examining all through-hull fittings and
appurtenances;
(5) The condition of the vessel, including the anticipated draft of
the vessel at the time of the survey;
(6) A description of the hull protection system; and
(7) The names and qualifications of all personnel involved in
conducting the UWILD.
(c) If a vessel is 15 years of age or older, the Commandant may
approve a UWILD at alternating intervals provided that:
(1) All provisions of paragraphs (a) and (b) of this section are
complied with, except that the vessel does not need to be less than 15
years of age; and
(2) During the vessel's drydock examination preceding the
underwater survey, a complete set of hull gauging was taken which
indicated that the vessel was free from hull deterioration.
PART 138--TOWING SAFETY MANAGEMENT SYSTEM (TSMS)
Sec.
Subpart A--General
138.100 Purpose.
138.115 Compliance.
Subpart B--Towing Safety Management System (TSMS)
138.205 Purpose of a TSMS.
138.210 Objectives of a TSMS.
138.215 Functional requirements of a TSMS.
138.220 TSMS elements.
138.225 Existing safety management systems (SMSs).
Subpart C--Documenting Compliance
138.305 TSMS certificate.
138.310 Internal audits for a TSMS certificate.
[[Page 40114]]
138.315 External audits for a TSMS certificate.
Subpart D--Audits
138.400 General.
138.405 Conduct of internal audits.
138.410 Conduct of external audits.
Subpart E--Coast Guard or Organizational Oversight and Review
138.500 Notification prior to audit.
138.505 Submittal of external audit results.
138.510 Required attendance.
Authority: 46 U.S.C. 3103, 3301, 3306, 3308, 3316, 8104, 8904;
33 CFR 1.05; DHS Delegation 0170.1.
Subpart A--General
Sec. 138.100 Purpose.
The purpose of this part is to prescribe requirements for owners or
managing operators of towing vessels who adopt a Towing Safety
Management System (TSMS) under this subchapter.
Sec. 138.115 Compliance.
Owners or managing operators selecting the TSMS option must obtain
a TSMS certificate issued under Sec. 138.305 at least 6 months before
obtaining a Certificate of Inspection (COI) for any of their vessels
covered by the TSMS certificate.
Subpart B--Towing Safety Management System (TSMS)
Sec. 138.205 Purpose of a TSMS.
(a) The purpose of a TSMS is to establish policies, procedures, and
required documentation to ensure the owner or managing operator meets
its established goals while ensuring continuous compliance with all
regulatory requirements. The TSMS must contain a method to ensure all
levels of the organization are working within the framework.
(b) A TSMS establishes and maintains:
(1) Management policies and procedures that serve as an operational
protocol for all levels within management;
(2) Procedures to produce objective evidence that demonstrates
compliance with the requirements of this subchapter;
(3) Procedures for an owner or managing operator to evaluate that
they are following their own policies and procedures and complying with
the requirements of this subchapter;
(4) Arrangements for a periodic evaluation by an independent third-
party organization (TPO) to determine how well an owner or managing
operator and their towing vessels are complying with their stated
policies and procedures, and to verify that those policies and
procedures comply with the requirements of this subchapter; and
(5) Procedures for correcting problems identified by management
personnel and TPOs and facilitating continuous improvement.
Sec. 138.210 Objectives of a TSMS.
The TSMS, through policies, procedures, and documentation, must:
(a) Demonstrate management responsibility. The management must
demonstrate that they implemented the policies and procedures as
contained in the TSMS and the entire organization is adhering to their
safety management program.
(b) Document management procedures. A TSMS must describe and
document the owner or managing operator's organizational structure,
responsibilities, procedures, and resources which ensure quality
monitoring.
(c) Ensure document and data control. There must be clear
identification of what types of documents and data are to be
controlled, and who is responsible for controlling activities,
including approval, issue, distribution, modification, removal of
obsolete materials, and other related administrative functions.
(d) Provide a process and criteria for selection of third parties.
Procedures for selection of TPOs must exist that include how third
parties are evaluated, including selection criteria.
(e) Establish a system of recordkeeping. Records must be maintained
to demonstrate effective implementation of the TSMS. This must include
audit records, non-conformity reports and corrective actions, auditor
qualifications, auditor training, and other records as considered
necessary.
(f) Identify and meet training needs. The owner or operator must
establish and maintain documented procedures for identifying training
needs and providing training.
(g) Ensure adequate resources. Identify adequate resources and
procedures necessary to comply with the TSMS.
Sec. 138.215 Functional requirements of a TSMS.
The functional requirements of a TSMS include:
(a) Policies and procedures to provide direction for the safe
operation of towing vessels and protection of the marine environment in
compliance with applicable U.S. law, including the Code of Federal
Regulations, and, if on an international voyage, applicable
international conventions to which the United States is a party;
(b) Defined levels of authority and lines of communication between
shoreside and vessel personnel;
(c) Procedures for reporting accidents and non-conformities;
(d) Procedures to prepare for and respond to emergency situations
by shoreside and vessel personnel;
(e) Procedures for verification of vessel compliance with this
subchapter;
(f) Procedures for internal auditing of the TSMS, including
shoreside and vessel operations;
(g) Procedures for external audits;
(h) Procedures for management review of internal and external audit
reports and correction of non-conformities; and
(i) Procedures to evaluate recommendations made by management and
other personnel.
Sec. 138.220 TSMS elements.
The TSMS must include the elements listed in paragrahs (a) through
(d) of this section. If an element listed is not applicable to an owner
or managing operator, appropriate justification must be documented and
is subject to acceptance by the TPO.
(a) Administration and management organization. A policy must be in
place that outlines the TSMS culture and how management intends to
ensure compliance with this subpart. Supporting this policy, the
following procedures and documentation must be included:
(1) Management organization--(i) Responsibilities. The management
organization, authority, and responsibilities of individuals must be
documented.
(ii) Designated person. Each owner or managing operator must
designate in writing the shoreside person(s) responsible for ensuring
the TSMS is implemented and continuously functions throughout
management and the fleet. They must also designate the shoreside
person(s) responsible for ensuring that the vessels are properly
maintained and in operable condition, including those responsible for
emergency assistance to each towing vessel.
(iii) Master authority. Each owner or managing operator must define
the scope of the master's authority. The master's authority must
provide for the ability to make final determinations on safe operations
of the towing vessel. Specifically, it must provide the authority for
the master to cease operation if an unsafe condition exists.
(2) Audits--(i) Procedures for conducting internal and external
audits.
[[Page 40115]]
The TSMS must contain procedures for audits in accordance with
Sec. Sec. 138.310 and 138.315.
(ii) Procedures for identifying and correcting non-conformities.
The TSMS must contain procedures for any person to report non-
conformities. The procedures must describe how an initial report should
be made and the actions taken to follow-up and ensure appropriate
resolution.
(b) Personnel. Policies must be in place that cover the owner or
managing operator's approach to managing personnel, including, but not
limited to, employment, training, and health and safety of personnel.
Supporting these polices, the following procedures and documentation
must be included:
(1) Employment procedures. The TSMS must contain procedures related
to the employment of individuals. Procedures must be in place to ensure
adequate qualifications of personnel, to include background checks,
compliance with drug and alcohol standards, and that personnel are able
to perform required tasks.
(2) Training of personnel. The TSMS must contain a policy related
to the training of personnel, including:
(i) New-hire orientation;
(ii) Duties associated with the execution of the TSMS;
(iii) Execution of operational duties;
(iv) Execution of emergency procedures;
(v) Occupational health;
(vi) Crew safety; and
(vii) Training required by this Subchapter.
(c) Verification of vessel compliance. Policies must be in place
that cover the owner or managing operator's approach for ensuring
vessel compliance, including, but not limited to, policies on
maintenance and survey, safety, the environment, security, and
emergency preparedness. Supporting these policies, the following
procedures and documentation must be included:
(1) Maintenance and survey. Procedures outlining the owner or
managing operator's survey regime must specify all maintenance,
examination, and survey requirements, including the minimum
qualifications of persons assigned to carry out required surveys the
owner or managing operator is using the internal examination program.
Applicable documentation must be maintained for all activities for a
period of 5 years.
(2) Safety, environment, and security. Procedures must be in place
to ensure safety of property, the environment, and personnel. This must
include procedures to ensure the selection of the appropriate vessel,
including adequate maneuverability and horsepower, appropriate rigging
and towing gear, proper management of the navigational watch, and
compliance with applicable security measures.
(d) Compliance with this subchapter. Procedures and documentation
must be in place to ensure that each towing vessel complies with the
operational, equipment, and personnel requirements of this subchapter.
Sec. 138.225 Existing safety management systems (SMSs).
(a) A safety management system (SMS) which is fully compliant with
the International Safety Management (ISM) Code requirements,
implemented in 33 CFR part 96, will be deemed in compliance with TSMS-
related requirements in this subchapter.
(b) Other existing SMSs may be considered for acceptance as meeting
the TSMS requirements of this part. The Coast Guard may:
(1) Accept such system in full;
(2) Require modifications to the system as a condition of
acceptance; or
(3) Reject the system.
(c) An owner or managing operator who seeks to meet TSMS
requirements using provisions in paragraph (a) or (b) of this section
must submit documentation to the Coast Guard based on the initial audit
and one full audit cycle of at least 3 years.
(d) The Coast Guard may elect to inspect equipment and records,
including:
(1) Contents of the SMS;
(2) Objective evidence of internal and external audits;
(3) Objective evidence that non-conformities were identified and
corrected; and
(4) Objective evidence of vessel compliance with applicable
regulations.
Subpart C--Documenting Compliance
Sec. 138.305 TSMS certificate.
(a) The owner or managing operator will be issued a TSMS
certificate by a TPO when his or her organization is deemed in
compliance with the TSMS requirements. It should be kept on file at the
owner or managing operator's shoreside office and available for review,
at the request of the Coast Guard.
(b) A TSMS certificate is valid for 5 years from the date of issue,
unless suspended, revoked or rescinded as provided in paragraphs (d)
and (e) of this section.
(c) The vessel owner or managing operator must maintain a list of
vessels currently covered by each TSMS certificate and must provide it
to the Coast Guard upon request.
(d) A TSMS certificate may be suspended or revoked by the Coast
Guard at any time for non-compliance with the requirements of this
part.
(e) The TPO that issued the TSMS certificate may rescind the
certificate for non-compliance with the requirements of this part.
(f) A copy of the TSMS certificate must be maintained on each
towing vessel that is covered by the TSMS certificate and on file at
the owner or managing operator's shoreside office.
Sec. 138.310 Internal audits for a TSMS certificate.
(a) Internal management audits must be conducted annually, within 3
months of the anniversary date of the TSMS certificate, to ensure the
owner or managing operator is effectively implementing all elements of
their TSMS.
(b) The internal management audit must ensure that management has
implemented the TSMS throughout all levels of the organization,
including audits of all the owner or managing operator's towing vessels
to which a TSMS applies to ensure implementation at the operational
level.
(c) The results of internal audits must be documented and
maintained for a period of 5 years and made available to the Coast
Guard upon request.
(d) Internal auditors:
(1) Must have knowledge of the management, its SMS, and the
standards contained in this subchapter;
(2) Must have completed an ANSI/ISO/ASQ Q9001-2000 or ISO
9001:2008(E) (incorporated by reference, see Sec. 136.112 of this
subchapter) internal auditor/assessor course or Coast Guard-recognized
equivalent;
(3) May not be the designated person, or any other person, within
the organization that is responsible for development or implementation
of the TSMS; and
(4) Must be independent of the procedures being audited, unless
this is impracticable due to the size and the nature of the
organization.
Sec. 138.315 External audits for a TSMS certificate.
External audits for obtaining and renewing a TSMS certificate are
conducted through a TPO and must include both management and vessels as
follows:
(a) Management audits. (1) Prior to the issuance of an owner or
managing operator's initial TSMS certificate, or subsequent renewals,
an external management audit must be conducted by an auditor from a
TPO.
(2) A mid-period external management audit must be conducted
[[Page 40116]]
between the 27th and 33rd month of the certificate's period of
validity.
(b) Vessel audits. (1) An external audit must be conducted prior to
the issuance of the initial COI for vessels subject to an owner or
managing operator's TSMS that have been owned or operated for 6 or more
months prior to receiving the initial COI.
(2) An external audit must be conducted no later than 6 months
after the issuance of the initial COI for vessels subject to the owner
or managing operator's TSMS that have been owned or operated for fewer
than 6 months prior to receiving the initial COI.
(3) An external audit of all vessels covered by a TSMS certificate
must be conducted during the 5-year period of validity of the TSMS
certificate. The vessels must be selected randomly and distributed as
evenly as possible.
(4) External audits may include the use of objective evidence which
may be available at the owner or managing operator's corporate office.
Some portions of this audit require visiting each vessel at some point
during the 5-year period of validity of the TSMS certificate.
(c) Documentation. The results of the external audit must be
documented and maintained for a period of 5 years and made available to
the Coast Guard or the external auditor upon request.
Subpart D--Audits
Sec. 138.400 General.
Management and vessels are subject to internal and external audits
to assess compliance with TSMS and the vessel standards requirements of
this subchapter.
Sec. 138.405 Conduct of internal audits.
(a) Internal audits are conducted by, or on behalf of, the
management and may be performed by a designated employee or by
contracted individual(s) who conduct the audit as if an employee of the
owner or managing operator.
(b) Internal audits are not necessarily conducted as one event;
they can be taken in segments over time.
(c) Internal audits must be of sufficient depth and breadth to
ensure the owner or managing operator established adequate procedures
and documentation to comply with the TSMS requirements of this part,
that the TSMS was implemented throughout all levels of the
organization, and that the owner or managing operator's vessels comply
with this subchapter and the TSMS.
(d) The auditor must have the authority to examine documentation,
question personnel, examine vessel equipment, witness system testing,
and observe personnel training, including drills, as necessary to
verify TSMS effectiveness.
Sec. 138.410 Conduct of external audits.
(a) External audits must be conducted by an auditor from a TPO and
cover all elements of the TSMS requirements of this subchapter, but may
be conducted on a sampling basis of each of those TSMS elements.
(b) External audits must be of sufficient depth and breadth to
ensure the owner or operating manager effectively implemented its TSMS
throughout all levels of the organization, including onboard its
vessels.
(c) The auditor must be provided access to examine any requested
documentation, question personnel, examine vessel equipment, witness
system testing, and observe personnel training, including drills, as
necessary to verify TSMS effectiveness.
(d) The auditor may broaden the scope of the audit if:
(1) The TSMS is incomplete or not effectively implemented;
(2) Conditions found are not consistent with the records; or
(3) Unsafe conditions are identified.
(e) The auditor may verify compliance with vessel standards and
TSMS requirements through a review of objective evidence such as
checklists, invoices, and reports, and may conduct a visual sampling
onboard the vessels to determine whether or not the conditions onboard
the vessel are consistent with the records reviewed.
(f) If an auditor identifies a major non-conformity during the
course of the external audit, then the auditor must notify the local
Officer in Charge, Marine Inspection (OCMI) within 24 hours and the
owner or managing operator's designated representative in accordance
with the TSMS applicable to the vessel.
Subpart E--Coast Guard or Organizational Oversight and Review
Sec. 138.500 Notification prior to audit.
(a) The owner or managing operator of a towing vessel must notify
the local OCMI at least 72 hours prior to an external audit being
conducted under this part.
(b) The Coast Guard may require that a Coast Guard representative
accompany the auditor during part, or all, of an external audit.
(c) The Coast Guard may conduct a separate audit of the owner or
managing operator or its towing vessels, at its discretion.
Sec. 138.505 Submittal of external audit results.
(a) Submission of external management audits. The results of an
external management audit as required by Sec. 138.315 must be
submitted to the Towing Vessel National Center of Expertise within 30
days of audit completion by the TPO conducting the external audit. The
mailing address for the Coast Guard Towing Vessel National Center of
Expertise is 504 Broadway Street, Suite 101, Paducah, Kentucky 42001.
(b) Submission of external vessel audits. The results of any
external vessel audits required by Sec. 138.315 must be submitted to
the cognizant OCMI within 30 days of audit completion by the TPO
conducting the external audit.
(c) Electronic submissions. The results of external audits required
by this section may be submitted electronically so long as the means
used allows the Coast Guard to reliably verify the person making the
submission and the authenticity of the records submitted. For those
seeking to submit external audit records to the Coast Guard
electronically, the TSMS must address the means to be used to make
these electronic submissions.
Sec. 138.510 Required attendance.
(a) The TPO and the owner or managing operator may be required to
explain or otherwise demonstrate areas of the TSMS to the Coast Guard
if there is evidence that a TSMS, for which a TSMS certificate was
issued, is not in compliance with the provisions of this part. The
Coast Guard may require a third party's attendance at the vessel or the
office of the owner or managing operator for this purpose.
(b) The Coast Guard will not bear any of the costs for a third
party's attendance at the vessel or the office of the owner or managing
operator when complying with this provision.
PART 139--THIRD-PARTY ORGANIZATIONS
Sec.
139.100 Purpose.
139.110 Organizations not subject to further approval.
139.115 General.
139.120 Application for approval as a TPO.
139.125 Approval of TPO.
139.130 Qualifications of auditors and surveyors.
139.135 Addition and removal of auditors and surveyors.
139.140 Renewal of TPO approval.
139.145 Suspension of approval.
139.150 Revocation of approval.
139.155 Appeals of suspension or revocation of approval.
139.160 Coast Guard oversight activities.
[[Page 40117]]
139.165 Documentation.
Authority: 46 U.S.C. 3103, 3301, 3306, 3308, 3316, 8104, 8904;
33 CFR 1.05; DHS Delegation 0170.1.
Sec. 139.100 Purpose.
(a) This part states the requirements applicable to third-party
organizations (TPOs) that conduct audits and surveys for towing vessels
as required by this subchapter.
(b) The Commandant delegates to the Towing Vessel National Center
of Expertise (TVNCOE) the authority to carry out the functions of this
part associated with approval of TPOs, including revocation and
suspension of approval.
Sec. 139.110 Organizations not subject to further approval.
(a) A recognized classification society, which has satisfied the
requirements in 46 CFR 8.230, meets the requirements of a TPO for the
purposes of this part and may perform the work as a third-party
auditor.
(b) An authorized classification society, which has been authorized
under 46 CFR part 8, subpart C or D, meets the requirements of a TPO
for the purposes of this part and may perform the work as a third-party
surveyor.
(c) The organizations qualifying as TPOs under paragraph (a) or (b)
of this section must ensure that employees providing services under
this part hold proper qualifications for the particular type of service
being performed.
Sec. 139.115 General.
(a) The Coast Guard approves TPOs to carry out functions related to
ensuring that towing vessels comply with provisions of this subchapter.
Organizations may be approved to:
(1) Conduct audits of a Towing Safety Management System (TSMS), and
the vessels to which the TSMS applies, to verify compliance with the
applicable provisions of this subchapter;
(2) Issue TSMS certificates to the owner or managing operator who
is in compliance with part 138 of this subchapter;
(3) Conduct surveys of towing vessels to verify compliance with the
applicable provisions of this subchapter; and
(4) Issue survey reports detailing the results of surveys, carried
out in compliance with part 137 of this subchapter.
(b) An organization seeking approval under this part must provide
objective evidence to the Coast Guard that its program:
(1) Is independent of the owner or managing operator and vessels
that it audits or surveys;
(2) Operates within a quality management system acceptable to the
Coast Guard;
(3) Ensures its auditors and surveyors are qualified and maintain
continued competence;
(4) Demonstrates the ability to carry out the responsibilities of
approval; and
(5) Meets all other requirements of this part.
(c) A list of TPOs will be maintained by the Coast Guard, and made
available upon request.
Sec. 139.120 Application for approval as a TPO.
An organization, which may include a business entity or an
association, desiring to be approved as a TPO under this part must
submit a written request to the Towing Vessel National Center of
Expertise, 504 Broadway St Suite 101, Paducah, KY 42001. The
organization must provide the following information:
(a) A description of the organization, including the ownership,
structure, and organizational components.
(b) A general description of the clients being served or intended
to be served.
(c) A description of the types of work performed by the
organization or by the principals of the organization in the past,
noting the amount and extent of such work performed within the previous
3 years.
(d) Objective evidence of an internal quality system based on ANSI/
ISO/ASQ Q9001-2000 (incorporated by reference, see Sec. 136.112 of
this subchapter) or an equivalent quality standard.
(e) Organization procedures and supporting documentation that
describe processes used to perform an audit and records to show system
effectiveness.
(f) Copies of checklists, forms, or other tools to be used as
guides or for recording the results of audits and/or surveys.
(g) Organization procedures for appeals and grievances.
(h) The organization's code of ethics applicable to the
organization and its auditors and/or surveyors.
(i) A list of the organization's auditors and/or surveyors who meet
the requirements of Sec. 139.130. This list must include the
experience, background, and qualifications for each auditor and/or
surveyor.
(j) A description of the organization's means of assuring continued
competence of its personnel.
(k) The organization's procedures for terminating or removing
auditors and/or surveyors.
(l) A description of the organization's means of assuring the
availability of its personnel to meet the needs of the towing companies
for conducting audits and surveys within the intervals established in
this subchapter.
(m) A description of the organization's apprentice or associate
program for auditors and/or surveyors.
(n) A statement that the Coast Guard may inspect the organization's
facilities and records and may accompany auditors and/or surveyors in
the performance of duties related to the requested approval.
(o) Disclosure of any potential conflicts of interest.
(p) A statement that the organization, its managers, and employees
engaged in audits and/or surveys are not, and will not be involved in
any activities which could result in a conflict of interest or
otherwise limit the independent judgment of the auditor and/or surveyor
or organization.
(q) Any additional information that the applicant deems pertinent.
Sec. 139.125 Approval of TPOs.
(a) The Commandant delegates to the Towing Vessel National Center
of Expertise (TVNCOE) the authority to carry out the review and
approval described in this section, and the related authority to
suspend and revoke approval.
(b) The Coast Guard will review the request and notify the
organization in writing whether their request is granted.
(c) If a request for approval is denied, the Coast Guard will
inform the organization of the reasons for the denial and will describe
what corrections are required for an approval to be granted.
(d) An approval for a TPO that meets the requirements of this part
will expire:
(1) Five years after the last day of the month in which it is
granted;
(2) When the TPO gives notice that it will no longer offer towing
vessel audit and/or survey services;
(3) When revoked by the Coast Guard in accordance with Sec.
139.150; or
(4) On the date of a change in ownership, as defined in Sec.
136.110, of the TPO for which approval was granted.
Sec. 139.130 Qualifications of auditors and surveyors.
(a) A prospective auditor or surveyor must have the skills and
experience necessary to assess compliance with all requirements of this
subchapter.
(b) Auditors must meet the following qualifications:
(1) High school diploma or equivalent.
(2) Four years of working on towing vessels or other relevant
marine experience such as Coast Guard marine inspector, licensed
mariner, military
[[Page 40118]]
personnel with relevant maritime experience, or marine surveyor.
(3) Successful completion of an ANSI/ISO/ASQ Q9001-2000 or ISO
9001:2008(E) (incorporated by reference, see Sec. 136.112 of this
subchapter) lead auditor/assessor course or Coast Guard recognized
equivalent.
(4) Successful completion of a training course for the auditing of
a TSMS.
(5) Audit experience, as demonstrated by:
(i) Documented experience in auditing the ISM Code or the American
Waterways Operators Responsible Carrier Program, consisting of at least
two management audits and six vessel audits within the past 5 years; or
(ii) Successful completion of an auditor apprenticeship, consisting
of at least one management audit and three vessel audits under the
direction of a lead auditor.
(c) Surveyors must meet the following qualifications:
(1) High school diploma or equivalent.
(2) At least one of the following:
(i) Four years of experience working on towing vessels as master,
mate (pilot), or engineer; or
(ii) Other relevant marine experience such as Coast Guard marine
inspector, military personnel with relevant maritime experience, marine
surveyor, accredited marine surveyor, experience on vessels of similar
operating and physical characteristics.
Sec. 139.135 Addition and removal of auditors and surveyors.
(a) A TPO must maintain a list of current and former auditors and
surveyors.
(b) To add an auditor or surveyor, the TPO must submit that
person's experience, background, and qualifications to the TVNCOE.
(c) The TVNCOE must be notified when an auditor or surveyor is
removed from employment.
Sec. 139.140 Renewal of TPO approval.
(a) To renew an approval, a TPO must submit a written request to
the TVNCOE at the address listed in Sec. 139.120.
(b) For the request to be approved, the Coast Guard must be
satisfied that the applicant continues to fully meet approval criteria.
(c) The Coast Guard may request any additional information
necessary to properly evaluate the request.
Sec. 139.145 Suspension of approval.
(a) The Coast Guard may suspend the approval of a TPO approved
under this part whenever the Coast Guard determines that the TPO does
not comply with the provisions of this part. The Coast Guard must:
(1) Notify the TPO in writing of the intention to suspend the
approval;
(2) Provide the details of the TPO's failure to comply with this
part; and
(3) Advise the TPO of the time period, not to exceed 60 days,
within which the TPO must correct its failure to comply with this part.
If the TPO fails to correct its failure to comply with this part within
the time period allowed, the approval will be suspended.
(b) The Coast Guard may also partially suspend the approval of a
TPO, using the process described in paragraph (a) of this section. This
may include suspension of an individual auditor or surveyor or
suspension of the authority of the TPO to carry out specific duties
whenever the Coast Guard determines that the provisions of this part
are not complied with.
Sec. 139.150 Revocation of approval.
(a) The Coast Guard may revoke the approval of a TPO if the
organization has demonstrated a pattern or history of:
(1) Failure to comply with this part;
(2) Substantial deviations from the terms of the approval granted
under this part; or
(3) Failures, including ethical violations, conflicts of interest,
or inadequate performance, that indicate to the Coast Guard that the
TPO is no longer capable of carrying out its duties as a TPO.
(b) If the Coast Guard seeks to revoke the approval of a TPO, it
must:
(1) Notify the TPO in writing of the intention to revoke the
approval;
(2) Provide the details of the TPO's demonstrated pattern or
history of actions described in paragraph (a) of this section; and
(3) Advise the TPO that it may appeal this decision to the Coast
Guard in accordance with the provisions of 46 CFR subpart 1.03.
Sec. 139.155 Appeals of suspension or revocation of approval.
Anyone directly affected by a decision to suspend or revoke an
approval granted under this part may appeal the decision to the Coast
Guard in accordance with the provisions of 46 CFR subpart 1.03.
Sec. 139.160 Coast Guard oversight activities.
(a) The Coast Guard will provide notice to the TPO 48 hours in
advance of any site visit, unless the visit is in response to a
complaint or other evidence of regulatory non-compliance. During the
visit, the Coast Guard may:
(1) Inspect a TPO's records;
(2) Conduct interviews of auditors or surveyors to aid in the
evaluation of the organization; and
(3) Observe audits or surveys.
(b) The Coast Guard may require that the owner or managing operator
make available a copy of the TSMS upon request.
(c) The Coast Guard may require a revision of a previously approved
TSMS if it is determined that requirements of this subchapter are not
met.
Sec. 139.165 Documentation.
(a) Each TPO must retain the results of each survey or audit
conducted under its approval, including:
(1) The names of the auditors and/or surveyors;
(2) The results of each audit or survey conducted; and
(3) Documentation showing continuing actions relative to an audit
or survey, such as resolution of deficiencies and non-conformities.
(b) Each TPO must also retain the results of audits of their
organization conducted by the Coast Guard.
(c) Records required by this part must be retained for a period of
5 years.
PART 140--OPERATIONS
Sec.
Subpart A--General
140.100 Purpose.
140.105 Applicability and delayed implementation for existing
vessels.
Subpart B--General Operational Safety
140.205 General vessel operation.
140.210 Responsibilities of the master and crew.
Subpart C--[Reserved]
Subpart D--Crew Safety
140.400 Personnel records.
140.405 Emergency duties and duty stations.
140.410 Safety orientation.
140.415 Orientation for individuals that are not crewmembers.
140.420 Emergency drills and instruction.
140.425 Fall overboard prevention.
140.430 Wearing of work vests.
140.435 First aid equipment.
Subpart E--Safety and Health
140.500 General.
140.505 General health and safety requirements.
140.510 Identification and mitigation of health and safety hazards.
140.515 Training requirements.
Subpart F--Vessel Operational Safety
140.600 Applicability.
140.605 Vessel stability.
140.610 Hatches and other openings.
140.615 Examinations and tests.
140.620 Navigational safety equipment.
140.625 Navigation underway.
[[Page 40119]]
140.630 Lookout.
140.635 Navigation assessment.
140.640 Pilothouse resource management.
140.645 Navigation safety training.
140.650 Operational readiness of lifesaving and fire suppression and
detection equipment.
140.655 Prevention of oil and garbage pollution.
140.660 Vessel security.
140.665 Inspection and testing required when making alterations,
repairs, or other such operations involving riveting, welding,
burning, or like fire-producing actions.
140.670 Use of auto pilot.
Subpart G--Navigation and Communication Equipment
140.700 Applicability.
140.705 Charts and nautical publications.
140.710 Marine radar.
140.715 Communications equipment.
140.720 Navigation lights, shapes, and sound signals.
140.725 Additional navigation equipment.
Subpart H--Towing Safety
140.800 Applicability.
140.801 Towing gear.
140.805 Towing safety.
140.820 Recordkeeping for towing gear.
Subpart I--Vessel Records
140.900 Marine casualty reporting.
140.905 Official logbooks.
140.910 Towing vessel record or record specified by TSMS.
140.915 Items to be recorded.
Subpart J--Penalties
140.1000 Statutory penalties.
140.1005 Suspension and revocation.
Authority: 46 U.S.C. 3103, 3301, 3306, 3308, 3316, 8104, 8904;
33 CFR 1.05; DHS Delegation 0170.1.
Subpart A--General
Sec. 140.100 Purpose.
This part contains the health, safety, and operational requirements
for towing vessels and the crewmembers serving onboard them.
Sec. 140.105 Applicability and delayed implementation for existing
vessels.
This part applies to all towing vessels subject to this subchapter.
(a) With the exception Sec. 140.500, which has a later
implementation date, an existing towing vessel must comply with the
requirements in this part no later than either July 20, 2018 or the
date the vessel obtains a Certificate of Inspection (COI), whichever
date is earlier.
(b) The delayed implementation provisions in paragraph (a) of this
section do not apply to a new towing vessel.
Subpart B--General Operational Safety
Sec. 140.205 General vessel operation.
(a) A vessel must be operated in accordance with applicable laws
and regulations and in such a manner as to afford protection against
hazards to life, property, and the environment.
(b) Towing vessels with a Towing Safety Management System (TSMS)
must be operated in accordance with the TSMS applicable to the vessel.
(c) Vessels must be manned in accordance with the COI. Manning
requirements are contained in part 15 of this chapter.
(d) Each crewmember that is required to hold a Merchant Mariner
Credential (MMC) must have the credential on board and available for
examination at all times when the vessel is operating.
(e) All individuals who are not required to hold an MMC permitted
onboard the vessel must have and present on request a valid personal
identification that meets the requirements set forth in 33 CFR 101.515.
Sec. 140.210 Responsibilities of the master and crew.
(a) The safety of the towing vessel is the responsibility of the
master and includes:
(1) Adherence to the provisions of the COI;
(2) Compliance with the applicable provisions of this subchapter;
(3) Compliance with the TSMS, if one is applicable to the vessel;
and
(4) Supervision of all persons onboard in carrying out their
assigned duties.
(b) If the master or officer in charge of a navigational watch
believes it is unsafe for the vessel to proceed, that an operation
endangers the vessel or crew, or that an unsafe condition exists, he or
she must ensure that adequate corrective action is taken and must not
proceed until it is safe to do so.
(c) Nothing in this subpart may be construed in a manner which
limits the master or officer in charge of a navigational watch, at his
or her own responsibility, from diverting from the route prescribed in
the COI or taking such steps as deemed necessary and prudent to assist
vessels in distress or for other emergency conditions.
(d) It is the responsibility of the crew to:
(1) Adhere to the provisions of the COI;
(2) Comply with the applicable provisions of this subchapter;
(3) Comply with the TSMS, if one is applicable to the vessel;
(4) Ensure that the master or officer in charge of a navigational
watch is made aware of all known aspects of the condition of the
vessel, including:
(i) Those vessels being pushed, pulled, or hauled alongside; and
(ii) Equipment and other accessories used for pushing, pulling, or
hauling alongside other vessels.
(5) Minimize any distraction from the operation of the vessel or
performance of duty; and
(6) Report unsafe conditions to the master or officer in charge of
a navigational watch and take effective action to prevent accidents.
Subpart C--[Reserved]
Subpart D--Crew Safety
Sec. 140.400 Personnel records.
(a) The master of each towing vessel must keep an accurate list of
crewmembers and their assigned positions and responsibilities aboard
the vessel.
(b) The master must keep an accurate list of individuals to be
carried as persons in addition to the crew and any passengers.
(c) The date and time that a navigation watchstander, including
master, officer in charge of a navigational watch, and lookout assumes
a watch and is relieved of a watch must be recorded in the towing
vessel record (TVR), official logbook, or in accordance with the TSMS
applicable to the vessel. If an engineering watch is maintained,
comparable records documenting the engineering watch are required.
Sec. 140.405 Emergency duties and duty stations.
(a) Crewmembers must meet the requirements in Sec. Sec. 15.405 and
15.1105 of this chapter, as appropriate.
(b) Any towing vessel with alternating watches (shift work) or
overnight accommodations must identify the duties and duty stations of
each person onboard during an emergency, including:
(1) Responding to fires and flooding;
(2) Responding to emergencies that necessitate abandoning the
vessel;
(3) Launching survival craft;
(4) Taking action during heavy weather;
(5) Taking action in the event of a person overboard;
(6) Taking action relative to the tow;
(7) Taking action in the event of failure of propulsion, steering,
or control system;
(8) Managing individuals onboard who are not crewmembers;
(9) Managing any other event or condition which poses a threat to
life, property, or the environment; and
[[Page 40120]]
(10) Responding to other special duties essential to addressing
emergencies as determined by the TSMS applicable to the vessel, if a
TSMS is used.
(c) The emergency duties and duty stations required by this section
must be posted at each operating station and in a conspicuous location
in a space commonly visited by crewmembers. If posting is impractical,
such as in an open boat, they may be kept onboard in a location readily
available to the crew.
Sec. 140.410 Safety orientation.
(a) Personnel must meet the requirements in Sec. Sec. 15.405 and
15.1105 of this chapter, as appropriate.
(b) Prior to getting underway for the first time on a particular
towing vessel, each crewmember must receive a safety orientation on:
(1) His or her duties in an emergency;
(2) The location, operation, and use of lifesaving equipment;
(3) Prevention of falls overboard;
(4) Personal safety measures;
(5) The location, operation, and use of Personal Protective
Equipment;
(6) Emergency egress procedures;
(7) The use and operation of watertight and weathertight closures;
(8) Responsibilities to provide assistance to individuals that are
not crewmembers;
(9) How to respond to emergencies relative to the tow; and
(10) Awareness of, and expected response to, any other hazards
inherent to the operation of the towing vessel which may pose a threat
to life, property, or the environment.
(c) The safety orientation provided to crewmembers who received a
safety orientation on another vessel may be modified to cover only
those areas unique to the other vessel on which service will occur.
(d) Safety orientations and other crew training must be documented
in the TVR, official logbook, or in accordance with the TSMS applicable
to the vessel. The entry must include:
(1) The date of the safety orientation or training;
(2) A general description of the safety orientation or training
topics;
(3) The name(s) and signature(s) of individual(s) providing the
orientation or training; and
(4) The name(s) of the individual(s) receiving the safety
orientation or training.
Sec. 140.415 Orientation for individuals that are not crewmembers.
Individuals, who are not crewmembers, on board a towing vessel must
receive a safety orientation prior to getting underway or as soon as
practicable thereafter, to include:
(a) The location, operation, and use of lifesaving equipment;
(b) Emergency procedures;
(c) Methods to notify crewmembers in the event of an emergency; and
(d) Prevention of falls overboard.
Sec. 140.420 Emergency drills and instruction.
(a) Master's responsibilities. The master of a towing vessel must
ensure that drills are conducted and instructions are given to ensure
that all crewmembers are capable of performing the duties expected of
them during emergencies. This includes abandoning the vessel,
recovering persons from the water, responding to onboard fires and
flooding, or responding to other threats to life, property, or the
environment.
(b) Nature of drills. Each drill must, as far as practicable, be
conducted as if there was an actual emergency.
(c) Annual instruction for each crew member. Unless otherwise
stated, each crewmember must receive the instruction required by this
section annually.
(d) Instructions and drills required. The following instruction and
drills are required:
(1) Response to fires, as required by Sec. 142.245 of this
subchapter;
(2) Launching of a skiff, if listed as an item of emergency
equipment to abandon ship or recover a person-overboard;
(3) Instruction on the use of davit-launched liferafts, if
installed.
(4) If a rescue boat is installed, instruction on how it must be
launched, with its assigned crew aboard, and maneuvered in the water as
if during an actual man-overboard situation.
(5) Credentialed mariners holding an officer endorsement do not
require instruction in accordance with paragraphs (d)(1), (3), and (4)
of this section.
(e) Alternative forms of instruction. (1) Instruction as required
by this section may be conducted via an electronic format followed by a
discussion and demonstration by a competent individual. This
instruction may occur either on board or off the vessel but must
include the equipment that is the subject of the instruction.
(2) Instruction as required by this section may be performed in
accordance with the TSMS applicable to the vessel, provided that it
meets the minimum requirements of this section.
(f) Location of drills, full crew participation, and use of
equipment. As far as practicable, drills must take place on board the
vessel. They must include:
(1) Participation by all crewmembers; and
(2) Actual use of, or realistic simulation of the use of, emergency
equipment.
(g) Recordkeeping. Records of drills and instruction must be
maintained in the TVR, official logbook, or in accordance with the TSMS
applicable to the vessel. The record must include:
(1) The date of the drill and instruction;
(2) A description of the drill scenario and instruction topics;
(3) The personnel involved.
Sec. 140.425 Fall overboard prevention.
(a) The owner or managing operator of a towing vessel must
establish procedures to address fall overboard prevention and recovery
of persons in the water, including, but not limited to:
(1) Personal protective equipment;
(2) Safely working on the tow;
(3) Safety while line handling;
(4) Safely moving between the vessel and a tow, pier, structure, or
other vessel; and
(5) Use of retrieval equipment.
(b) The owner, managing operator, or master must ensure that all
persons on board comply with the policies and procedures in this
section.
Sec. 140.430 Wearing of work vests.
(a) Personnel dispatched from the vessel or that are working in an
area on the exterior of the vessel without rails and guards must wear a
lifejacket meeting requirements in 46 CFR 141.340, an immersion suit
meeting requirements in 46 CFR 141.350, or a work vest approved by the
Commandant under 46 CFR subpart 160.053. When worn at night, the work
vest must be equipped with a light that meets the requirements of 46
CFR 141.340(g)(1). Work vests may not be substituted for the
lifejackets required by 46 CFR part 141.
(b) Each storage container containing a work vest must be marked
``WORK VEST''.
Sec. 140.435 First aid equipment.
Each towing vessel must be equipped with an industrial type first
aid cabinet or kit, appropriate to the size of the crew and operating
conditions. Each towing vessel operating on oceans, coastwise, or Great
Lakes routes must have a means to take blood pressure readings, splint
broken bones, and apply large bandages for serious wounds.
Subpart E--Safety and Health
Sec. 140.500 General.
(a) No later than July 22, 2019, the owner or managing operator
must
[[Page 40121]]
implement a health and safety plan. The health and safety plan must
document compliance with this part and include recordkeeping
procedures.
(b) The owner, managing operator, or master must ensure that all
persons on board a towing vessel comply with the health and safety
plan.
Sec. 140.505 General health and safety requirements.
(a) The owner or managing operator must implement procedures for
reporting unsafe conditions and must have records of the activities
conducted under this section. The owner or managing operator must
maintain records of health and safety incidents that occur on board the
vessel, including any medical records associated with the incidents.
Upon request, the owner or managing operator must provide crewmembers
with incident reports and the crewmember's own associated medical
records.
(b) All vessel equipment must be used in accordance with the
manufacturer's recommended practice and in a manner that minimizes risk
of injury or death. This includes machinery, deck machinery, towing
gear, ladders, embarkation devices, cranes, portable tools, and safety
equipment.
(c) All machinery and equipment that is not in proper working order
(including missing or malfunctioning guards or safety devices) must be
removed; made safe through marking, tagging, or covering; or otherwise
made unusable.
(d) Personal Protective Equipment (PPE). (1) Appropriate Personal
Protective Equipment (PPE) must be made available and on hand for all
personnel engaged in an activity that requires the use of PPE.
(2) PPE must be suitable for the vessel's intended service; meet
the standards of 29 CFR part 1910, subpart I; and be used, cleaned,
maintained, and repaired in accordance with manufacturer's
requirements.
(3) All individuals must wear PPE appropriate to the activity being
performed;
(4) All personnel engaged in an activity must be trained in the
proper use, limitations, and care of the PPE specified by this subpart;
(e) The vessel, including crew's quarters and the galley, must be
kept in a sanitary condition.
Sec. 140.510 Identification and mitigation of health and safety
hazards.
(a) The owner or managing operator must implement procedures to
identify and mitigate health and safety hazards, including but not
limited to:
(1) Tools and equipment, including deck machinery, rigging, welding
and cutting, hand tools, ladders, and abrasive wheel machinery found on
board the vessel;
(2) Slips, trips, and falls;
(3) Working aloft;
(4) Hazardous materials;
(5) Confined space entry;
(6) Blood-borne pathogens and other biological hazards;
(7) Electrical;
(8) Noise;
(9) Falls overboard;
(10) Vessel embarkation and disembarkation (including pilot
transfers);
(11) Towing gear, including winches, capstans, wires, hawsers and
other related equipment;
(12) Personal hygiene;
(13) Sanitation and safe food handling; and
(14) Potable water supply.
(b) As far as practicable, the owner or managing operator must
implement other types of safety control measures before relying on
Personal Protective Equipment. These controls may include
administrative, engineering, source modification, substitution, process
change or controls, isolation, ventilation, or other controls.
Sec. 140.515 Training requirements.
(a) All crewmembers must be provided with health and safety
information and training that includes:
(1) Content and procedures of the owner or managing operator's
health and safety plan;
(2) Procedures for reporting unsafe conditions;
(3) Proper selection and use of PPE appropriate to the vessel
operation;
(4) Safe use of equipment including deck machinery, rigging,
welding and cutting, hand tools, ladders, and abrasive wheel machinery
found onboard the vessel;
(5) Hazard communication and cargo knowledge;
(6) Safe use and storage of hazardous materials and chemicals;
(7) Confined space entry;
(8) Respiratory protection; and
(9) Lockout/Tagout procedures.
(b) Individuals, other than crewmembers, must be provided with
sufficient information or training on hazards relevant to their
potential exposure on or around the vessel.
(c) Crewmember training required by this section must be conducted
as soon as practicable, but not later than 5 days after employment.
(d) Refresher training must be repeated annually and may be
conducted over time in modules covering specific topics. Refresher
training may be less comprehensive, provided that the information
presented is sufficient to provide employees with continued
understanding of workplace hazards. The refresher training of persons
subject to this subpart must include the information and training
prescribed in this section.
(e) The owner, managing operator, or master must determine the
appropriate training and information to provide to each individual
permitted on the vessel who is not a crewmember, relative to the
expected risk exposure of the individual.
(f) All training required in this section must be documented in
owner or managing operator's records.
Subpart F--Vessel Operational Safety
Sec. 140.600 Applicability.
This subpart applies to all towing vessels unless otherwise
specified. Certain vessels remain subject to the navigation safety
regulations in 33 CFR part 164.
Sec. 140.605 Vessel stability.
(a) Prior to getting underway, and at all other times necessary to
ensure the safety of the vessel, the master or officer in charge of a
navigational watch must determine whether the vessel complies with all
stability requirements in the vessel's trim and stability book,
stability letter, COI, and Load Line Certificate, as applicable.
(b) A towing vessel must be maintained and operated so the
watertight integrity and stability of the vessel are not compromised.
Sec. 140.610 Hatches and other openings.
(a) All towing vessels must be operated in a manner that minimizes
the risk of down-flooding and progressive flooding.
(b) The master must ensure that all hatches, doors, and other
openings designed to be watertight or weather-tight function properly.
(c) The master or officer in charge of a navigational watch must
ensure all hatches and openings of the hull and deck are kept tightly
closed except:
(1) When access is needed through the opening for transit;
(2) When operating on rivers with a tow, if the master determines
the safety of the vessel is not compromised; or
(3) When operating on lakes, bays, and sounds, without a tow during
calm weather, and only if the master determines that the safety of the
vessel is not compromised.
(d) Where installed, all watertight doors in watertight bulkheads
must be
[[Page 40122]]
closed during the operation of the vessel, unless they are being used
for transit between compartments; and
(e) When downstreaming, all exterior openings at the main deck
level must be closed.
(f) Decks and bulkheads designed to be watertight or weathertight
must be maintained in that condition.
Sec. 140.615 Examinations and tests.
(a) This section applies to a towing vessel not subject to 33 CFR
164.80.
(b) Prior to getting underway, the master or officer in charge of a
navigational watch of the vessel must examine and test the steering
gear, signaling whistle, propulsion control, towing gear, navigation
lights, navigation equipment, and communication systems of the vessel.
This examination and testing does not need to be conducted more than
once in any 24-hour period.
(c) The results of the examination and testing must be recorded in
the TVR, official logbook, or in accordance with the TSMS applicable to
the vessel.
Sec. 140.620 Navigational safety equipment.
(a) This section applies to a towing vessel not subject to the
requirements of 33 CFR 164.82.
(b) The owner, managing operator, or master of each towing vessel
must maintain the required navigational-safety equipment in a fully-
functioning, operational condition.
(c) Navigational safety equipment such as radar, gyrocompass, echo
depth-sounding or other sounding device, automatic dependent
surveillance equipment, or navigational lighting that fails during a
voyage must be repaired at the earliest practicable time. The owner,
managing operator, or master must consider the state of the equipment
(along with such factors as weather, visibility, traffic, and the
dictates of good seamanship) when deciding whether it is safe for the
vessel to proceed.
(d) The failure and subsequent repair or replacement of
navigational safety equipment must be recorded. The record must be made
in the TVR, official logbook, or in accordance with the TSMS applicable
to the vessel.
Sec. 140.625 Navigation underway.
(a) At all times, the movement of a towing vessel and its tow must
be under the direction and control of a master or mate (pilot) properly
licensed under subchapter B of this chapter.
(b) The master or officer in charge of a navigational watch must
operate the vessel in accordance with the conditions and restrictions
stated on the COI and the TSMS applicable to the vessel.
Note to Sec. 140.625. Certain towing vessels subject to Sec.
140.625 are also subject to the requirements of 33 CFR 164.78.
Sec. 140.630 Lookout.
(a) Throughout the trip or voyage the master and officer in charge
of the navigational watch must assess the requirement for a lookout,
consistent with 33 CFR 83.05. A lookout in addition to the master or
mate (pilot) should be added when necessary to:
(1) Maintain a state of vigilance with regard to any significant
change in the operational environment;
(2) Assess the situation and the risk of collision/allision;
(3) Anticipate stranding and other dangers to navigation; and
(4) Detect any other potential hazards to safe navigation.
(b) In determining the requirement for a lookout, the officer in
charge of the navigational watch must take full account of relevant
factors including, but not limited to: state of weather, visibility,
traffic density, proximity of dangers to navigation, and the attention
necessary when navigating in areas of increased vessel traffic.
Sec. 140.635 Navigation assessment.
(a) The officer in charge of a navigational watch must conduct a
navigation assessment for the intended route and operations prior to
getting underway. The navigation assessment must incorporate the
requirements of pilothouse resource management of Sec. 140.640, assess
operational risks, and anticipate and manage workload demands. At a
minimum, this assessment must consider:
(1) The velocity and direction of currents in the area being
transited;
(2) Water depth, river stage, and tidal state along the route and
at mooring location;
(3) Prevailing visibility and weather conditions and changes
anticipated along the intended route;
(4) Density (actual and anticipated) of marine traffic;
(5) The operational status of pilothouse instrumentation and
controls, to include alarms, communication systems, variation and
deviation errors of the compass, and any known nonconformities or
deficiencies;
(6) Air draft relative to bridges and overhead obstructions taking
tide and river stage into consideration;
(7) Horizontal clearance, to include bridge transits;
(8) Lock transits;
(9) Navigation hazards such as logs, wrecks or other obstructions
in the water;
(10) Any broadcast notice to mariners, safety or security zones or
special navigation areas;
(11) Configuration of the vessel and tow, including handling
characteristics, field of vision from the pilothouse, and activities
taking place onboard;
(12) The knowledge, qualifications, and limitations of crewmembers
who are assigned as members on watch and the experience and familiarity
of crewmembers with the towing vessels particulars and equipment; and
(13) Any special conditions not covered above that impact the
safety of navigation.
(b) The officer in charge of a navigational watch must keep the
navigation assessment up-to-date to reflect changes in conditions and
circumstances. This includes updates during the voyage or trip as
necessary. At each change of the navigational watch, the oncoming
officer in charge of the navigational watch must review the current
navigation assessment for necessary changes.
(c) The officer in charge of a navigational watch must ensure that
the navigation assessment and any updates are communicated to other
members of the navigational watch.
(d) A navigation assessment entry must be recorded in the TVR,
official log, or in accordance with the TSMS applicable to the vessel.
The entry must include the date and time of the assessment, the name of
the individual making the assessment, and the starting and ending
points of the voyage or trip that the assessment covers.
Note to Sec. 140.635. Certain towing vessels subject to Sec.
140.635 are also subject to the voyage planning requirements of 33 CFR
164.80.
Sec. 140.640 Pilothouse resource management.
(a) The officer in charge of a navigational watch must:
(1) Ensure that other members of the navigational watch have a
working knowledge of the navigation assessment required by Sec.
140.635, and understand the chain of command, the decision-making
process, and the fact that information sharing is critical to the
safety of the vessel.
(2) Ensure that the navigation assessment required by Sec. 140.635
is complete, updated, communicated and available throughout the trip.
(3) Ensure that watch change procedures incorporate all items
listed in paragraph (a)(1) of this section.
(4) Take actions (to include delaying watch change or pausing the
voyage) if
[[Page 40123]]
there is reasonable cause to believe that an oncoming watchstander is
not immediately capable of carrying out his or her duties effectively.
(5) Maintain situational awareness and minimize distractions.
(b) Prior to assuming duties as officer in charge of a navigational
watch, a person must:
(1) Complete the navigation assessment required by Sec. 140.635;
(2) Verify the operational condition of the towing vessel; and
(3) Verify that there are adequate personnel available to assume
the watch.
(c) If at any time the officer in charge of a navigational watch is
to be relieved when a maneuver or other action to avoid any hazard is
taking place, the relief of that officer in charge of a navigational
watch must be deferred until such action has been completed.
Sec. 140.645 Navigation safety training.
(a) Prior to assuming duties related to the safe operation of a
towing vessel, each crewmember must receive training to ensure that
they are familiar with:
(1) Watchstanding terms and definitions;
(2) Duties of a lookout;
(3) Communication with other watchstanders;
(4) Change of watch procedures;
(5) Procedures for reporting other vessels or objects; and
(6) Watchstanding safety.
(b) Crewmember training must be recorded in the TVR, official
logbook, or in accordance with the TSMS applicable to the vessel.
(c) Credentialed mariners holding Able Seaman or officer
endorsements will be deemed to have met the training requirements in
this section.
Sec. 140.650 Operational readiness of lifesaving and fire suppression
and detection equipment.
The owner, managing operator, or master of a towing vessel must
ensure that the vessel's lifesaving and fire suppression and detection
equipment complies with the applicable requirements of parts 141 and
142 of this subchapter and is in good working order.
Sec. 140.655 Prevention of oil and garbage pollution.
(a) Each towing vessel must be operated in compliance with:
(1) Applicable sections of the Federal Water Pollution Control Act,
including section 311 of the Federal Water Pollution Control Act, as
amended (33 U.S.C. 1321);
(2) Applicable sections of the Act to Prevent Pollution from Ships
(33 U.S.C. 1901 et seq.); and
(3) Parts 151, 155, and 156, of 33 CFR, as applicable.
(b) Each towing vessel must be capable of preventing all oil spills
from reaching the water during transfers by:
(1) Pre-closing the scuppers/freeing ports, if the towing vessel is
so equipped;
(2) Using fixed or portable containment of sufficient capacity to
contain the most likely spill, if 33 CFR 155.320 does not apply; or
(3) Pre-deploying sorbent material on the deck around vents and
fills.
(c) No person may intentionally drain oil or hazardous material
into the bilge of a towing vessel from any source. For purposes of this
section, ``oil'' has the same meaning as ``oil'' defined in 33 U.S.C.
1321.
Sec. 140.660 Vessel security.
Each towing vessel must be operated in compliance with:
(a) The Maritime Transportation Security Act of 2002 (46 U.S.C.
Chapter 701); and
(b) 33 CFR parts 101 and 104, as applicable.
Sec. 140.665 Inspection and testing required when making alterations,
repairs, or other such operations involving riveting, welding, burning,
or like fire-producing actions.
(a) The inspections and issuance of certificates required by this
section must be conducted in accordance with the provisions of NFPA 306
(incorporated by reference, see Sec. 136.112 of this subchapter)
before alterations, repairs, or other operations involving riveting,
welding, burning, or other fire producing actions may be made aboard a
vessel.
(b) Until an inspection has been made to determine that such
operation can be undertaken with safety, no alterations, repairs, or
other such operations involving riveting, welding, burning, or like
fire-producing actions must be made:
(1) Within or on the boundaries of cargo tanks which have been used
to carry combustible liquid or chemicals in bulk;
(2) Within or on the boundaries of fuel tanks; or,
(3) To pipe lines, heating coils, pumps, fittings, or other
appurtenances connected to such cargo or fuel tanks.
(c) Such inspections must be made and evidenced as follows:
(1) In ports or places in the United States or its territories and
possessions the inspection must be made by a marine chemist
certificated by the National Fire Protection Association. However, if
the services of such certified marine chemist are not reasonably
available, the Officer in Charge, Marine Inspection (OCMI), upon the
recommendation of the vessel owner and his or her contractor or their
representative, must select a person who, in the case of an individual
vessel, must be authorized to make such inspection. If the inspection
indicated that such operations can be undertaken with safety, a
certificate setting forth the fact in writing and qualified as may be
required, must be issued by the certified marine chemist or the
authorized person before the work is started. Such qualifications must
include any requirements as may be deemed necessary to maintain the
safe conditions in the spaces certified throughout the operation and
must include such additional tests and certifications as considered
required. Such qualifications and requirements must include precautions
necessary to eliminate or minimize hazards that may be present from
protective coatings or residues from cargoes.
(2) When not in such a port or place, and a marine chemist or such
person authorized by the OCMI, is not reasonably available, the
inspection must be made by the master or person in charge and a proper
entry must be made in the vessel's logbook.
(d) The master or person in charge must secure copies of
certificates issued by the certified marine chemist or such person
authorized by the OCMI. The master or person in charge must maintain a
safe condition on the vessel by full observance of all qualifications
and requirements listed by the marine chemist or person authorized by
the OCMI in the certificate.
Sec. 140.670 Use of auto pilot.
Except for towing vessels in compliance with requirements in 33 CFR
164.13(d), when an automatic pilot is used in areas of high traffic
density, conditions of restricted visibility, or any other hazardous
navigational situations, the master must ensure that:
(a) It is possible to immediately establish manual control of the
ship's steering;
(b) A competent person is ready at all times to take over steering
control; and
(c) The changeover from automatic to manual steering and vice versa
is made by, or under, the supervision of the officer in charge of the
navigational watch.
Subpart G--Navigation and Communication Equipment
Sec. 140.700 Applicability.
This subpart applies to all towing vessels unless otherwise
specified.
[[Page 40124]]
Certain towing vessels are also subject to the navigation safety
regulations in 33 CFR part 164.
Sec. 140.705 Charts and nautical publications.
(a) This section applies to a towing vessel not subject to the
requirements of 33 CFR 164.72.
(b) A towing vessel must carry adequate and up-to-date charts,
maps, and nautical publications for the intended voyage, including:
(1) Charts, including electronic charts acceptable to the Coast
Guard, of appropriate scale to make safe navigation possible. Towing
vessels operating on the Western Rivers must have maps of appropriate
scale issued by the Army Corps of Engineers or a river authority;
(2) ``U.S. Coast Pilot'' or similar publication;
(3) Coast Guard light list; and
(4) Towing vessels that operate the Western Rivers must have river
stage(s) or Water Surface Elevations as appropriate to the trip or
route, as published by the U.S. Army Corps of Engineers or a river
authority, must be available to the person in charge of the navigation
watch.
(c) Extracts or copies from the publications listed in paragraph
(b) of this section may be carried, so long as they are applicable to
the route.
Sec. 140.710 Marine radar.
Requirements for marine radar are set forth in 33 CFR 164.72.
Sec. 140.715 Communications equipment.
(a) Towing vessels must meet the communications requirements of 33
CFR part 26 and 33 CFR 164.72, as applicable.
(b) Towing vessels not subject to the provisions of 33 CFR part 26
or 33 CFR 164.72 must have a Very High Frequency-Frequency Modulated
(VHF-FM) radio installed and capable of monitoring VHF-FM Channels 13
and 16, except when transmitting or receiving traffic on other VHF-FM
channels, when participating in a Vessel Traffic Service (VTS), or when
monitoring a channel of a VTS. The VHF-FM radio must be installed at
each operating station and connected to a functioning battery backup.
(c) All towing vessels must have at least one properly operating
handheld VHF-FM radio in addition to the radios otherwise required.
Sec. 140.720 Navigation lights, shapes, and sound signals.
Each towing vessel must be equipped with navigation lights, shapes,
and sound signals in accordance with the International Regulations for
Prevention of Collisions at Sea (COLREGS) or 33 CFR part 84 as
appropriate to its area of operation.
Sec. 140.725 Additional navigation equipment.
Towing vessels must be equipped with the following equipment, as
applicable to the area of operation:
(a) Fathometer (except Western Rivers).
(b) Search light, controllable from the vessel's operating station
and capable of illuminating objects at a distance of at least two times
the length of the tow.
(c) Electronic position-fixing device, satisfactory for the area in
which the vessel operates, if the towing vessel engages in towing
seaward of the navigable waters of the U.S. or more than 3 nautical
miles from shore on the Great Lakes.
(d) Illuminated magnetic compass or an illuminated swing-meter
(Western Rivers vessels only). The compass or swing-meter must be
readable from each operating station.
Note to Sec. 140.725. Certain towing vessels subject to Sec.
140.725 are also subject to the requirements of 33 CFR 164.72 and
Automatic Identification System requirements of 33 CFR 164.46.
Subpart H--Towing Safety
Sec. 140.800 Applicability.
This subpart applies to all towing vessels unless otherwise
specified. Certain vessels are also subject to the navigation safety
regulations in 33 CFR parts 163 and 164.
Sec. 140.801 Towing gear.
The owner, managing operator, master or officer in charge of a
navigational watch of a towing vessel must ensure the following:
(a) The strength of each component used for securing the towing
vessel to the tow and for making up the tow is adequate for its
intended service.
(b) The size, material, and condition of towlines, lines, wires,
push gear, cables, and other rigging used for making up a tow or
securing the towing vessel to a tow must be appropriate for:
(1) The horsepower or bollard pull of the vessel;
(2) The static loads and dynamic loads expected during the intended
service;
(3) The environmental conditions expected during the intended
service; and
(4) The likelihood of mechanical damage.
(c) Emergency procedures related to the tow have been developed and
appropriate training provided to the crew for carrying out their
emergency duties.
Sec. 140.805 Towing safety.
Prior to getting underway, and giving due consideration to the
prevailing and expected conditions of the trip or voyage, the officer
in charge of the navigational watch for a towing vessel must ensure
that:
(a) The barges, vessels, or objects making up the tow are properly
configured and secured;
(b) Equipment, cargo, and industrial components on board the tow
are properly secured and made ready for transit;
(c) The towing vessel is safely and securely made up to the tow;
and
(d) The towing vessel has appropriate horsepower or bollard pull
and is capable of safely maneuvering the tow.
Sec. 140.820 Recordkeeping for towing gear.
(a) The results of the inspections required by 33 CFR 164.76 must
be documented in the TVR, official logbook, or in accordance with the
TSMS applicable to the vessel.
(b) A record of the type, size, and service of each towline, face
wire, and spring line, used to make the towing vessel fast to her tow,
must be available to the Coast Guard or third-party auditor for review.
The following minimum information is required in the record: The dates
when examinations were performed, the identification of each item of
towing gear examined, and the name(s) of the person(s) conducting the
examinations.
Subpart I--Vessel Records
Sec. 140.900 Marine casualty reporting.
Each towing vessel must comply with the requirements of part 4 of
this chapter for reporting marine casualties and retaining voyage
records.
Sec. 140.905 Official logbooks.
(a) A towing vessel of the United States, except one on a voyage
from a port in the United States to a port in Canada, is required by 46
U.S.C. 11301 to have an official logbook if the vessel is:
(1) On a voyage from a port in the United States to a foreign port;
or
(2) Of at least 100 gross tons and on a voyage between a port in
the United States on the Atlantic Ocean and one on the Pacific Ocean.
(b) The Coast Guard furnishes, without fee, to masters of vessels
of the United States, the official logbook as Form CG-706B or CG-706C,
depending on the number of persons employed as crew. The first several
pages of this logbook list various acts of Congress
[[Page 40125]]
governing logbooks and the entries required in them.
(c) When a voyage is completed, or after a specified time has
elapsed, the master must file the official logbook containing required
entries with the cognizant OCMI at or nearest the port where the vessel
may be.
Sec. 140.910 Towing vessel record or record specified by TSMS.
(a) This section applies to a towing vessel other than a vessel
operating only in a limited geographic area or a vessel required by
Sec. 140.905 to maintain an official logbook.
(b) A towing vessel subject to this section must maintain a TVR or
in accordance with the TSMS applicable to the towing vessel.
(c) The TVR must include a chronological record of events as
required by this subchapter. The TVR may be electronic or paper.
(d) Except as required by Sec. Sec. 140.900 and 140.905, records
do not need to be filed with the Coast Guard, but must be kept
available for review by the Coast Guard upon request. Records, unless
required to be maintained for a longer period by statute or other
federal regulation, must be retained for at least 1 year after the date
of the latest entry.
Sec. 140.915 Items to be recorded.
(a) The following list of items must be recorded in the TVR,
official logbook, or in accordance with the TSMS applicable to the
vessel:
(1) Personnel records, in accordance with Sec. 140.400;
(2) Safety orientation, in accordance with Sec. 140.410;
(3) Record of drills and instruction, in accordance with Sec.
140.420;
(4) Examinations and tests, in accordance with Sec. 140.615;
(5) Operative navigational safety equipment, in accordance with
Sec. 140.620;
(6) Navigation assessment, in accordance with Sec. 140.635;
(7) Navigation safety training, in accordance with Sec. 140.645;
(8) Oil residue discharges and disposals, in accordance with Sec.
140.655;
(9) Record of inspection of towing gear, in accordance with Sec.
140.820; and
(10) Fire-detection and fixed fire-extinguishing, in accordance
with Sec. 142.240.
(b) For the purposes of this subchapter, if items are recorded
electronically in a TVR or other record as specified by the TSMS
applicable to the towing vessel, these electronic entries must include
the date and time of entry and name of the person making the entry. If
after an entry has been made, someone responsible for entries
determines there is an error in an entry, any entries to correct the
error must include the date and time of entry and name of the person
making the correction and must preserve a record of the original entry
being corrected.
Note to Sec. 140.915. For towing vessels subject to 46 U.S.C.
11301, there are statutory requirements in that U.S. Code section for
additional items that must be entered in the official logbook.
Regarding requirements outside this subchapter, such as requirements in
33 CFR 151.25 to make entries in an oil record book, Sec. 140.915 does
not change those requirements.
Subpart J--Penalties
Sec. 140.1000 Statutory penalties.
Violations of the provisions of this subchapter will subject the
violator to the applicable penalty provisions of Subtitle II of Title
46, and Title 18, United States Code.
Sec. 140.1005 Suspension and revocation.
An individual is subject to proceedings under the provisions of 46
U.S.C. 7703 and 7704, and part 5 of this chapter with respect to
suspension or revocation of a license, certificate, document, or
credential if the individual holds a license, certificate of registry,
merchant mariner document, or merchant mariner credential and:
(a) Commits an act of misconduct, negligence or incompetence;
(b) Uses or is addicted to a dangerous drug; or
(c) Violates or fails to comply with this subchapter or any other
law or regulation intended to promote marine safety; or
(d) Becomes a security risk, as described in 46 U.S.C. 7703.
PART 141--LIFESAVING
Sec.
Subpart A--General
141.100 Purpose.
141.105 Applicability and delayed implementation for existing
vessels.
Subpart B--General Requirements for Towing Vessels
141.200 General provisions.
141.225 Alternate arrangements or equipment.
141.230 Readiness.
141.235 Inspection, testing, and maintenance.
141.240 Requirements for training crews.
Subpart C--Lifesaving Requirements for Towing Vessels
141.305 Survival craft requirements for towing vessels.
141.310 Stowage of survival craft.
141.315 Marking of survival craft and stowage locations.
141.320 Inflatable survival craft placards.
141.325 Survival craft equipment.
141.330 Skiffs as survival craft.
141.340 Lifejackets.
141.350 Immersion suits.
141.360 Lifebuoys.
141.370 Miscellaneous lifesaving requirements for towing vessels.
141.375 Visual distress signals.
141.380 Emergency position indicating radio beacon (EPIRB).
141.385 Line throwing appliance.
Authority: 46 U.S.C. 3103, 3301, 3306, 3308, 3316, 8104, 8904;
33 CFR 1.05; DHS Delegation 0170.1.
Subpart A--General
Sec. 141.100 Purpose.
This part contains requirements for lifesaving equipment,
arrangements, systems, and procedures on towing vessels.
Sec. 141.105 Applicability and delayed implementation for existing
vessels.
(a) This part applies to all towing vessels subject to this
subchapter.
(1) An existing towing vessel must comply with the requirements in
this part no later than either July 20, 2018 or the date the vessel
obtains a Certificate of Inspection (COI), whichever date is earlier.
(2) The delayed implementation provisions in paragraph (a)(1) of
this section do not apply to a new towing vessel.
(b) A towing vessel on an international voyage, subject to SOLAS
(incorporated by reference, see Sec. 136.112 of this subchapter), must
meet the applicable requirements in subchapter W of this chapter.
(c) Towing vessels in compliance with SOLAS Chapter III will be
deemed in compliance with this part.
Subpart B--General Requirements for Towing Vessels
Sec. 141.200 General provisions.
(a) Unless otherwise specified, all lifesaving equipment must be
approved by the Commandant under the approval series specified in each
section. Lifesaving equipment for personal use which is not required by
this part need not be approved by the Commandant.
(b) A listing of approved equipment and materials may be found at
https://cgmix.uscg.mil/equipment. Each cognizant Officer in Charge,
Marine Inspection (OCMI) may be contacted for information concerning
approved equipment and materials.
(c) Equipment requirements are based on the area in which a towing
vessel is operating, not the route for which it is
[[Page 40126]]
certificated. However, the towing vessel must be equipped per the
requirements of its certificated route at the time of certification.
Sec. 141.225 Alternate arrangements or equipment.
(a) Alternate arrangements or equipment to comply with this part
may be approved in accordance with Sec. 136.115 of this subchapter.
(b) If a Towing Safety Management System (TSMS) is applicable to
the towing vessel, alternative means for complying with Sec. Sec.
141.340, 141.350, and 141.360 may be approved by a third-party
organization (TPO) and documented in the TSMS applicable to the vessel.
(c) The Coast Guard may approve a novel lifesaving appliance or
arrangement as an equivalent if it has performance characteristics at
least equivalent to the appliance or arrangement required under this
subchapter, and if it has been evaluated and tested under IMO
Resolution A.520(13) (incorporated by reference, see Sec. 136.112 of
this subchapter). Requests for evaluation of novel lifesaving
appliances must be sent to the Commandant (CG-ENG).
(d) The cognizant OCMI may require a towing vessel to carry
specialized or additional lifesaving equipment if:
(1) He or she determines that the conditions of the voyage render
the requirements of this part inadequate; or
(2) The towing vessel is operated in globally remote areas or
severe environments not covered under this part. Such areas may
include, but are not limited to, polar regions, remote islands, areas
of extreme weather, and other remote areas where timely emergency
assistance cannot be anticipated.
Sec. 141.230 Readiness.
The master must ensure that all lifesaving equipment is properly
maintained and ready for use at all times.
Sec. 141.235 Inspection, testing, and maintenance.
(a) All lifesaving equipment must be tested and maintained in
accordance with the minimum requirements of Sec. 199.190 of this
chapter, as applicable, and the vessel's TSMS, if the vessel has a
TSMS.
(b) Inspections and tests of lifesaving equipment must be recorded
in the TVR, official logbook, or in accordance with any TSMS applicable
to the vessel. The following minimum information is required:
(1) The dates when inspections and tests were performed, the number
or other identification of each unit inspected and tested, the results
of the inspections and tests, and the name of the crewmember, surveyor
or auditor and any others conducting the inspections and tests; and
(2) Receipts and other records documenting these inspections and
tests must be retained for at least 1 year after the expiration of the
COI and made available upon request.
Sec. 141.240 Requirements for training crews.
Training requirements are contained in part 140 of this subchapter.
Subpart C--Lifesaving Requirements for Towing Vessels
Sec. 141.305 Survival craft requirements for towing vessels.
(a) General purpose. Survival craft provide a means for survival
when evacuation from the towing vessel is necessary. The craft and
related equipment should be selected so as to provide for the basic
needs of the crew, such as shelter from life threatening elements,
until rescue resources are expected to arrive, taking into account the
scope and nature of the towing vessel's operations.
(b) Functional requirements. A towing vessel's survival craft must
meet the functional requirements of paragraphs (b)(1) through (5) of
this section. Functional requirements describe the objectives of the
regulation. Survival craft must:
(1) Be readily accessible;
(2) Have an aggregate capacity sufficient to accommodate the total
number of individuals onboard, as specified in paragraph (c) of this
section;
(3) Provide a means for sheltering its complement appropriate to
the route;
(4) Provide minimum equipment for survival if recovery time is
expected to be greater than 24 hours; and
(5) Be marked so that an individual not familiar with the operation
of the specific survival craft has sufficient guidance to utilize the
craft for its intended use.
(c) Compliance options. A towing vessel must meet the applicable
functional requirements. Compliance with the functional requirements of
paragraph (b) of this section may be met by one of these two options:
(1) A towing vessel that meets the prescriptive requirements of
paragraph (d) of this section will have complied with the functional
requirements; or
(2) If an owner or managing operator chooses to meet the functional
requirement through means other than as specified in paragraph (c)(1)
of this section, the means must be accepted by the cognizant OCMI or,
if the vessel has a TSMS, then by a TPO and, in the latter case,
documented in the TSMS applicable to the vessel. The design, testing,
and examination scheme for meeting these functional requirements must
be included as part of the TSMS applicable to the vessel.
(d) Prescriptive requirements. (1) Except as provided in paragraphs
(d)(2) through (4) of this section, each towing vessel must carry the
survival craft specified in Table 141.305 of this section, as
appropriate for the towing vessel, in an aggregate capacity to
accommodate the total number of individuals onboard.
Table 141.305--Survival Craft
--------------------------------------------------------------------------------------------------------------------------------------------------------
Area of operation
----------------------------------------------------------------------------------------------------------------
Great Lakes and lakes, Coastwise and ltd.
bays, and sounds as coastwise
Equipment (approval series) Limited geographic area or defined in Sec. 136.110 ----------------------------
protected waters Rivers ---------------------------- Oceans
<=3 miles >3 miles <= 3 miles > 3 miles
from shore from shore from shore from shore
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cold Water Operation
--------------------------------------------------------------------------------------------------------------------------------------------------------
Inflatable Buoyant Apparatus (160.010). None \1\................... \2\ 100% \2\ 100% ............ \2\ 100%
Inflatable Liferaft with SOLAS B Pack None \1\................... ............ ............ 100% ............ 100%
(160.151).
[[Page 40127]]
Inflatable Liferaft with SOLAS A Pack None \1\................... ............ ............ ............ ............ ............ 100%
(160.151).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Warm Water Operation
--------------------------------------------------------------------------------------------------------------------------------------------------------
Rigid Buoyant Apparatus (160.010)...... None \1\................... \2\ 100% \2\ 100% \2\ 100% \2\ 100%
Inflatable Liferaft with SOLAS B Pack None \1\................... ............ ............ ............ ............ \3\ 100%
(160.151).
Inflatable Liferaft with SOLAS A Pack None \1\................... ............ ............ ............ ............ ............ 100%
(160.151).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ No survival craft are required unless deemed necessary by the cognizant OCMI or a TSMS applicable to the towing vessel.
\2\ A skiff that meets requirements in Sec. 141.330(a) through (f) may be substituted for all or part of required equipment.
\3\ Inflatable buoyant apparatus (approval series 160.010) may be accepted or substituted if the vessel carries a 406 MHz Cat 1 emergency position
indicating radio beacon (EPIRB) meeting 47 CFR part 80.
(2) The following approved survival craft may be substituted for
survival craft required by Table 141.305 of this section:
(i) A lifeboat approved under approval series 160.135 may be
substituted for any survival craft required by this section, provided
it is arranged and equipped in accordance with part 199 of this
chapter.
(ii) An inflatable liferaft approved under approval series 160.051
or 160.151, may be substituted for an inflatable buoyant apparatus or
rigid buoyant apparatus.
(iii) An inflatable buoyant apparatus approved under approval
series 160.010 may be substituted for a rigid buoyant apparatus.
(iv) A life float approved under approval series 160.027 may be
substituted for a rigid buoyant apparatus.
(3) Unless it is determined to be necessary by the cognizant OCMI
under Sec. 141.225, or a TSMS applicable to the towing vessel, each
towing vessel that operates solely on rivers need not carry survival
craft if:
(i) It carries a 406 MHz Cat 1 EPIRB meeting 47 CFR part 80;
(ii) It is designed for pushing ahead and has a TSMS that contains
procedures for evacuating crewmembers onto the tow or other safe
location; or
(iii) It operates within 1 mile of shore.
(4) A towing vessel which is not required by this part to carry
survival craft may carry a non-approved survival craft as excess
equipment, provided that it is maintained in good working condition and
maintained according to the manufacturer's instructions.
Sec. 141.310 Stowage of survival craft.
Survival craft must be stowed in accordance with the requirements
of Sec. 199.130 of this chapter, as far as is practicable on existing
towing vessels.
Sec. 141.315 Marking of survival craft and stowage locations.
Survival craft and stowage locations must be marked in accordance
with the requirements of Sec. Sec. 199.176 and 199.178 of this
chapter.
Sec. 141.320 Inflatable survival craft placards.
Every towing vessel equipped with an inflatable survival craft must
have, in conspicuous places near each inflatable survival craft,
approved placards or other posted instructions for launching and
inflating inflatable survival craft.
Sec. 141.325 Survival craft equipment.
(a) Each item of survival craft equipment must be of good quality,
effective for the purpose it is intended to serve, and secured to the
craft.
(b) Each towing vessel carrying a lifeboat must carry equipment in
accordance with Sec. 199.175 of this chapter.
(c) Each life float and rigid buoyant apparatus must be fitted with
a lifeline, pendants, a painter, and floating electric water light
approved under approval series 161.010.
Sec. 141.330 Skiffs as survival craft.
A skiff may be substituted for all or part of the approved survival
craft for towing vessels that do not operate more than 3 miles from
shore. A skiff used as a survival craft does not require Coast Guard
approval but must:
(a) Be capable of being launched within 5 minutes under all
circumstances;
(b) Be of suitable size for all persons on board the towing vessel;
(c) Not exceed the loading specified on the capacity plate required
by 33 CFR 183.23;
(d) Not contain modifications affecting the buoyancy or structure
of the skiff;
(e) Be of suitable design for the vessel's intended service; and
(f) Be marked in accordance with Sec. Sec. 199.176 and 199.178 of
this chapter.
Sec. 141.340 Lifejackets.
(a) Each towing vessel must carry at least one appropriately-sized
lifejacket, approved under approval series 160.002, 160.005, 160.055,
160.155, or 160.176, for each person on board.
(b) For towing vessels with berthing aboard, a sufficient number of
additional lifejackets must be carried so that a lifejacket is
immediately available for persons at each normally manned watch
station.
(c) Where alternative means are used to meet the requirements of
this section, as permitted by Sec. 141.225, there must be at least one
lifejacket for each person onboard. Any TSMS applicable to the towing
vessel must specify the number and location of lifejackets in such a
manner as to facilitate immediate accessibility at normally occupied
spaces including, but not limited to, accommodation spaces and watch
stations.
(d) Lifejackets must be readily accessible.
(e) If the towing vessel carries inflatable lifejackets they must
be of
[[Page 40128]]
similar design to each other and have the same mode of operation.
(f) Each lifejacket must be marked:
(1) In block capital letters with the name of the vessel; and
(2) With Type I retro-reflective material approved under approval
series 164.018. The arrangement of the retro-reflective material must
meet IMO Resolution A.658(16) (incorporated by reference, see Sec.
136.112 of this subchapter).
(g) Lifejackets must have the following attachments and fittings:
(1) Each lifejacket must have a lifejacket light approved under
approval series 161.012 or 161.112 securely attached to the front
shoulder area of the lifejacket.
(2) Each lifejacket must have a whistle firmly secured by a cord to
the lifejacket.
(h) Stowage positions for lifejackets stowed in a berthing space or
stateroom and all lifejacket containers must be marked in block capital
letters and numbers with the minimum quantity, identity, and, if sizes
other than adult or universal sizes are used on the vessel, the size of
the lifejackets stowed inside the container. The equipment may be
identified in words or with the appropriate symbol from IMO Resolution
A.760(18) (incorporated by reference, see Sec. 136.112 of this
subchapter).
Sec. 141.350 Immersion suits.
(a) Except as provided in paragraph (a)(4) of this section, each
towing vessel operating north of lat. 32[deg] N. or south of lat.
32[deg] S. must carry the number of immersion suits as prescribed in
this paragraph (a):
(1) Each towing vessel operating in those regions must carry at
least one appropriate-size immersion suit, approved under approval
series 160.171, for each person onboard.
(2) In addition to the immersion suits required under paragraph
(a)(1) of this section, each watch station, work station, and
industrial work site must have enough immersion suits to equal the
number of persons normally on watch in, or assigned to, the station or
site at one time. However, an immersion suit is not required at a
station or site for a person whose cabin or berthing area (and the
immersion suits stowed in that location) is readily accessible to the
station or site.
(3) Where alternative means are used to meet the requirements of
this section, as permitted by Sec. 141.225, there must be at least one
immersion suit of the appropriate size for each person onboard. Any
TSMS applicable to the towing vessel must specify the number and
location of immersion suits in such a manner as to facilitate immediate
accessibility at normally occupied spaces including, but not limited
to, accommodation spaces and watch stations.
(4) A towing vessel operating on rivers or in a limited geographic
area is not required to carry immersion suits.
(b) Immersion suits carried on towing vessels must meet the
requirements of Sec. 199.70(c) and (d) of this chapter.
Sec. 141.360 Lifebuoys.
(a) A towing vessel must carry lifebuoys as follows:
(1) A towing vessel less than 26 feet length must carry a minimum
of one lifebuoy of not less than 510 millimeters (20 inches) in
diameter.
(2) A towing vessel of at least 26 feet, but less than 79 feet, in
length must carry a minimum of two lifebuoys located on opposite sides
of the vessel where personnel are normally present. Lifebuoys must be
at least 610 millimeters (24 inches) in diameter.
(3) A towing vessel 79 feet or more in length must carry four
lifebuoys, with one lifebuoy located on each side of the operating
station. Lifebuoys must be at least 610 millimeters (24 inches) in
diameter.
(4) Where alternative means are used to meet the requirements of
this section, as permitted by Sec. 141.225, any TSMS applicable to the
towing vessel must specify the number and location of lifebuoys in such
a manner as to facilitate rapid deployment of lifebuoys from exposed
decks, including the pilot house.
(b) Each lifebuoy on a towing vessel must:
(1) Be approved under approval series 160.050 or 160.150;
(2) Be capable of being rapidly cast loose;
(3) Not be permanently secured to the vessel in any way;
(4) Be marked in block capital letters with the name of the vessel;
and
(5) Be orange in color, if on a vessel on an oceans or coastwise
route.
(c) Lifebuoys must have the following attachments and fittings:
(1) At least one lifebuoy must have a lifeline, secured around the
body of the lifebuoy. If more than one lifebuoy is carried, at least
one must not have a lifeline attached. Each lifeline on a lifebuoy
must:
(i) Be buoyant;
(ii) Be of at least 18.3 meters (60 feet) in length;
(iii) Be non-kinking;
(iv) Have a diameter of at least 7.9 millimeters (\5/16\ inch);
(v) Have a breaking strength of at least 5 kilonewtons (1,124
pounds); and
(vi) Be of a dark color if synthetic, or of a type certified to be
resistant to deterioration from ultraviolet light.
(2) At least two lifebuoys on a towing vessel greater than 26 feet
must be fitted with a floating electric water light approved under
approval series 161.010 or 161.110, unless the towing vessel is limited
to daytime operation, in which case no floating electric water light is
required.
(3) If a towing vessel carries only one lifebuoy, the lifebuoy must
be fitted with a floating electric water light approved under approval
series 161.010 or 160.110, unless the towing vessel is limited to
daytime operation, in which case no floating electric water light is
required. The water light must be attached by the lanyard with a
corrosion-resistant clip to allow the water light to be quickly
disconnected from the lifebuoy. The clip must have a strength of at
least 22.7 kilograms (50 pounds).
(4) Each lifebuoy with a floating electric water light must have a
lanyard of at least 910 millimeters (3 feet) in length, but not more
than 1,830 millimeters (6 feet), securing the water light around the
body of the lifebuoy.
Sec. 141.370 Miscellaneous life saving requirements for towing
vessels.
Miscellaneous lifesaving requirements are summarized in Table
141.370 of this section. Equipment requirements are based on the area
in which a towing vessel is operating, not the route for which it is
certificated.
[[Page 40129]]
Table 141.370--Miscellaneous Lifesaving Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Area of operation
--------------------------------------------------------------------------------------------------------------------------
Great Lakes and lakes, bays, and Coastwise and ltd. coastwise
Equipment (46 CFR section) sounds as defined in Sec. ----------------------------------
Limited Rivers ---------------136.110-------------- Oceans
geographic area <= 3 miles from <= 3 miles from <= 3 miles from > 3 miles from
shore shore shore shore
--------------------------------------------------------------------------------------------------------------------------------------------------------
Visual Distress Signals (Sec. 3 day and 3 3 day and 3 3 day and 3 6 day and 6 3 day and 3 6 day and 6 6 day and 6
141.375). night. night. night. night. night. night. night.
EPIRBs (Sec. 141.380)...... ................ ................ ................ 1 \1\........... 1-............. 1.............. 1
Line Throwing Appliances ................ ................ ................ ................ ............... 1-............. 1
(Sec. 141.385).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Great Lakes service only.
Sec. 141.375 Visual distress signals.
(a) Carriage requirement. A towing vessel must carry a combination
of day and night visual distress signals indicated in Table 141.370 of
Sec. 141.370 for specified areas where the vessel operates.
(b) Day and night visual distress signals. Hand-held red flare
distress signals, approved under approval series 160.021 or 160.121,
and hand-held rocket-propelled parachute red flares, approved under
approval series 160.036 or 160.136, are acceptable as both day and
night signals.
(c) Signals for day visual distress only. Floating orange smoke
signals, approved under approval series 160.022, 160.122, or 160.157,
and hand-held orange smoke distress signals, approved under approval
series 160.037, are only acceptable as day signals.
(d) Limited geographic area. A vessel operating in a limited
geographic area on a short run limited to approximately 30 minutes away
from the dock is not required to carry visual distress signals under
this section.
(e) Stowage. Each pyrotechnic distress signal carried to meet this
section must be stowed in either:
(1) A portable watertight container carried at the operating
station. Portable watertight containers for pyrotechnic distress
signals must be of a bright color and must be clearly marked in legible
contrasting letters at least 12.7 millimeters (0.5 inches) high with
``DISTRESS SIGNALS''; or
(2) A pyrotechnic locker secured above the freeboard deck, away
from heat, in the vicinity of the operating station.
Sec. 141.380 Emergency position indicating radio beacon (EPIRB).
(a) Each towing vessel operating on oceans, coastwise, limited
coastwise, or beyond 3 nautical miles from shore upon the Great Lakes
must carry a Category 1, 406 MHz satellite Emergency Position
Indicating Radio Beacon (EPIRB) that meets the requirements of 47 CFR
part 80.
(b) When the towing vessel is underway, the EPIRB must be stowed in
its float-free bracket with the controls set for automatic activation
and be mounted in a manner so that it will float free if the towing
vessel sinks.
(c) The name of the towing vessel must be marked or painted in
clearly legible letters on each EPIRB, except on an EPIRB in an
inflatable liferaft.
(d) The owner or managing operator must maintain valid proof of
registration.
Note to paragraph (d). Registration information can be found at
www.beaconregistration.noaa.gov/.
Sec. 141.385 Line throwing appliance.
Each towing vessel operating in oceans and coastwise service must
have a line throwing appliance approved under approval series 160.040.
(a) Stowage. The line throwing appliance and its equipment must be
readily accessible for use.
(b) Additional equipment. The line throwing appliance must have:
(1) The equipment on the list provided by the manufacturer with the
approved appliance; and
(2) An auxiliary line that:
(i) Is at least 450 meters (1,500 feet) long;
(ii) Has a breaking strength of at least 40 kilonewtons (9,000
pounds-force); and
(iii) Is, if synthetic, of a dark color or certified by the
manufacturer to be resistant to deterioration from ultraviolet light.
PART 142--FIRE PROTECTION
Sec.
Subpart A --General
142.100 Purpose.
142.105 Applicability and delayed implementation for existing
vessels.
Subpart B--General Requirements for Towing Vessels
142.205 Alternate standards.
142.210 Alternate arrangements or equipment.
142.215 Approved equipment.
142.220 Fire hazards to be minimized.
142.225 Storage of flammable or combustible products.
142.226 Firefighter's outfit.
142.227 Fire axe.
142.230 Hand-portable fire extinguishers and semi-portable fire-
extinguishing systems.
142.235 Vessels contracted for prior to November 19, 1952.
142.240 Inspection, testing, maintenance, and records.
142.245 Requirements for training crews to respond to fires.
Subpart C--Fire Extinguishing and Detection Requirements
142.300 Excepted vessels.
142.315 Additional fire-extinguishing equipment requirements.
142.325 Fire pumps, fire mains, and fire hoses.
142.330 Fire-detection system requirements.
Authority: 46 U.S.C. 3103, 3301, 3306, 3308, 3316, 8104, 8904;
33 CFR 1.05; DHS Delegation 0170.1.
Subpart A--General
Sec. 142.100 Purpose.
This part contains requirements for fire suppression and detection
equipment and arrangements on towing vessels.
Sec. 142.105 Applicability and delayed implementation for existing
vessels.
This part applies to all towing vessels subject to this subchapter.
(a) An existing towing vessel must comply with the requirements in
this part no later than either July 20, 2018 or the date the vessel
obtains a Certificate of Inspection (COI), whichever date is earlier.
(b) The delayed implementation provisions in paragraph (a) of this
[[Page 40130]]
section do not apply to a new towing vessel.
Subpart B--General Requirements for Towing Vessels
Sec. 142.205 Alternate standards.
(a) Towing vessels in compliance with Chapter II-2 of SOLAS
(incorporated by reference, see Sec. 136.112 of this subchapter) will
be deemed to be in compliance with this part.
(b) Towing vessels that comply with other alternate standards,
deemed by the Commandant to provide an equivalent level of safety and
performance, will be in compliance with this part.
Sec. 142.210 Alternate arrangements or equipment.
(a) Alternate arrangements or equipment to comply with this part
may be approved in accordance with Sec. 136.115 of this subchapter.
(b) All owners or operators of towing vessels with a Towing Safety
Management System (TSMS) may comply with the requirements of subpart B
of this part by outfitting their vessels with appropriate alternate
arrangements or equipment so long as these variations provide an
equivalent level of safety and performance and are properly documented
in the TSMS.
(c) The cognizant Officer in Charge, Marine Inspection (OCMI) may
require a towing vessel to carry specialized or additional fire
protection, suppression, or detection equipment if:
(1) He or she determines that the conditions of the voyage render
the requirements of this part inadequate; or
(2) The towing vessel is operated in globally remote areas or
severe environments not covered under this part. These areas may
include, but are not limited to, polar regions, remote islands, areas
of extreme weather, and other remote areas where timely emergency
assistance cannot be anticipated.
Sec. 142.215 Approved equipment.
(a) All hand-portable fire extinguishers, semi-portable fire-
extinguishing systems, and fixed fire-extinguishing systems required by
this part must be approved by the Commandant (CG-ENG). Where other
equipment in this part is required to be approved, such equipment
requires the specific approval of the Commandant.
(b) A listing of approved equipment and materials may be found
online at https://cgmix.uscg.mil/equipment. Each cognizant OCMI may be
contacted for information concerning approved equipment and materials.
(c) New installations of fire-extinguishing and fire-detection
equipment of a type not required, or in excess of that required by this
part, may be permitted if Coast Guard approved, or if accepted by the
local OCMI, a TPO, or a Nationally Recognized Testing Laboratory
(NRTL). Existing equipment and installations not meeting the applicable
requirements of this part may be continued in service so long as they
are in good condition and accepted by the local OCMI or TPO.
Sec. 142.220 Fire hazards to be minimized.
Each towing vessel must be maintained and operated so as to
minimize fire hazards and to ensure the following:
(a) All bilges and void spaces are kept free from accumulation of
combustible and flammable materials and liquids insofar as practicable.
(b) Storage areas are kept free from accumulation of combustible
and flammable materials insofar as practicable.
Sec. 142.225 Storage of flammable or combustible products.
(a) Paints, coatings, or other flammable or combustible products
onboard a towing vessel must be stored in a designated storage room or
cabinet when not in use.
(b) If a storage room is provided, it may be any room or
compartment that is free of ignition sources.
(c) If a dedicated storage cabinet is provided it must be secured
to the vessel so that it does not move and must be either:
(1) A flammable liquid storage cabinet that satisfies UL 1275
(incorporated by reference, see Sec. 136.112 of this subchapter); or
(2) A flammable liquid storage cabinet that satisfies FM Approvals
Standard 6050 (incorporated by reference, see Sec. 136.112 of this
subchapter); or
(3) Another suitable steel container that provides an equivalent
level of protection.
(d) A B-II portable fire extinguisher must be located near the
storage room or cabinet. This is in addition to the portable fire
extinguishers required by Tables 142.230(d)(1) and 142.230(d)(2) of
Sec. 142.230.
Sec. 142.226 Firefighter's outfit.
Each towing vessel 79 feet or more in length operating on oceans
and coastwise routes that does not have an installed fixed fire-
extinguishing system must have the following:
(a) At least two firefighter's outfits that meet NFPA 1971
(incorporated by reference, see Sec. 136.112 of this subchapter); and
(b) Two self-contained breathing apparatus of the pressure demand,
open circuit type, approved by the National Institute for Occupational
Safety and Health (NIOSH), under 42 CFR part 84. The breathing
apparatus must have a minimum 30-minute air supply and full facepiece.
Sec. 142.227 Fire axe.
Each towing vessel must be equipped with at least one fire axe that
is readily accessible for use from the exterior of the vessel.
Sec. 142.230 Hand-portable fire extinguishers and semi-portable fire-
extinguishing systems.
(a) Hand-portable fire extinguishers and semi-portable fire-
extinguishing systems are classified by a combination letter and Roman
numeral. The letter indicates the type of fire which the unit could be
expected to extinguish, and the Roman numeral indicates the relative
size of the unit.
(b) For the purpose of this subchapter, all required hand-portable
fire extinguishers and semi-portable fire-extinguishing systems must
include Type B classification, suitable for extinguishing fires
involving flammable liquids, grease, etc.
(c) The number designations for size run from ``I'' for the
smallest to ``V'' for the largest. Sizes I and II are hand-portable
fire extinguishers; sizes III, IV, and V are semi-portable fire-
extinguishing systems, which must be fitted with hose and nozzle or
other practical means to cover all portions of the space involved.
Examples of the sizes for some of the typical hand-portable fire
extinguishers and semi-portable fire-extinguishing systems appear in
Table 142.230(c) of this section.
Table 142.230(c)--Portable and Semi-Portable Extinguishers
----------------------------------------------------------------------------------------------------------------
Carbon dioxide, Dry chemical,
Classification Foam, liters kilograms kilograms
(gallons) (pounds) (pounds)
----------------------------------------------------------------------------------------------------------------
B-I.................................................... 4.75 (1.25) 2 (4) 1 (2)
[[Page 40131]]
B-II................................................... 9.5 (2.5) 7 (15) 4.5 (10)
B-III.................................................. 45 (12) 16 (35) 9 (20)
B-IV................................................... 75 (20) 23 (50) 13.5 (30)
B-V.................................................... 125 (33) 45 (100) 23 (50)
----------------------------------------------------------------------------------------------------------------
(d)(1) Towing vessels of 65 feet or less in length must carry at
least the minimum number of hand-portable fire extinguishers set forth
in Table 142.230(d)(1) of this section.
Table 142.230(d)(1)--B-I Hand-Portable Fire Extinguishers
----------------------------------------------------------------------------------------------------------------
Minimum number of B-I hand-portable fire
extinguishers required \1\
---------------------------------------------
Length, feet No fixed fire- Fixed fire-
extinguishing system extinguishing system
in machinery space in machinery space
----------------------------------------------------------------------------------------------------------------
Under 26 \2\...................................................... 1 0
26 and over, but under 40......................................... 2 1
40 and over, but not over 65...................................... 3 2
----------------------------------------------------------------------------------------------------------------
\1\ One B-II hand-portable fire extinguisher may be substituted for two B-I hand-portable fire extinguishers.
\2\ See Sec. 136.105 of this subchapter concerning vessels under 26 feet.
(2) Towing vessels of more than 65 feet in length must carry at
least the minimum number of hand-portable fire extinguishers set forth
in Table 142.230(d)(2) of this section.
Table 142.230(d)(2)--B-II Hand-Portable Fire Extinguishers
------------------------------------------------------------------------
Gross tonnage-- Minimum number of
------------------------------------------------------ B-II hand-
portable fire
Over Not over extinguishers
------------------------------------------------------------------------
50................. 1
50.............................. 100................ 2
100............................. 500................ 3
500............................. 1,000.............. 6
1,000........................... ................... 8
------------------------------------------------------------------------
(i) In addition to the hand-portable extinguishers required by
paragraph (d)(2) of this section, one Type B-II hand-portable fire
extinguisher must be fitted in the engine room for each 1,000 brake
horsepower of the main engines or fraction thereof. A towing vessel is
not required to carry more than six additional B-II extinguishers in
the engine room for this purpose, irrespective of horsepower.
(ii) [Reserved]
(e) The frame or support of any size III, IV, or V semi-portable
extinguisher fitted with wheels must be welded or otherwise permanently
attached to a steel bulkhead or deck to prevent it from rolling under
heavy sea conditions.
Sec. 142.235 Vessels contracted for prior to November 19, 1952.
(a) Towing vessels contracted for construction prior to November
19, 1952, must meet the applicable provisions of this part concerning
the number and general type of equipment required.
(b) Existing equipment and installations previously approved, but
not meeting the applicable requirements for approval by the Commandant,
may be continued in service so long as they are in good condition.
(c) All new installations and replacements must meet the
requirements of this part.
Sec. 142.240 Inspection, testing, maintenance, and records.
(a) Inspection and testing. All hand-portable fire extinguishers,
semi-portable fire-extinguishing systems, fire-detection systems, and
fixed fire-extinguishing systems, including ventilation, machinery
shutdowns, and fixed fire-extinguishing system pressure-operated
dampers onboard the vessel, must be inspected or tested at least once
every 12 months, as prescribed in paragraphs (a)(1) through (8) of this
section, or more frequently if otherwise required by the TSMS
applicable to the vessel.
(1) Portable fire extinguishers must be tested in accordance with
the inspection, maintenance procedures and hydrostatic pressure tests
required by Chapters 7 and 8 of NFPA 10, Portable
[[Page 40132]]
Fire Extinguishers (incorporated by reference, see Sec. 136.112 of
this subchapter), with the frequency as specified by NFPA 10. In
addition, carbon dioxide and Halocarbon portable fire extinguishers
must be refilled when the net content weight loss exceeds that
specified for fixed systems in Table 142.240 of this section.
(2) Semi-portable and fixed fire-extinguishing systems must be
inspected and tested, as required by Table 142.240 of this section, in
addition to the tests required by Sec. Sec. 147.60 and 147.65 of this
chapter.
(3) Flexible connections and discharge hoses on all semi-portable
extinguishers and fixed extinguishing systems must be inspected and
tested in accordance with Sec. 147.65 of this chapter.
(4) All cylinders containing compressed gas must be tested and
marked in accordance with Sec. 147.60 of this chapter.
(5) All piping, controls, valves, and alarms must be inspected; and
the operation of controls, alarms, ventilation shutdowns, and pressure-
operated dampers for each fixed fire-extinguishing system and detecting
system must be tested, to determine that the system is operating
properly.
(6) The fire main system must be charged, and sufficient pressure
must be verified at the most remote and highest outlets.
(7) All fire hoses must be inspected for excessive wear, and
subjected to a test pressure equivalent to the maximum service
pressure. All fire hoses which are defective and incapable of repair
must be destroyed.
(8) All smoke- and fire-detection systems, including detectors and
alarms, must be tested.
Table 142.240--Semi-Portable and Fixed Fire-Extinguishing Systems
------------------------------------------------------------------------
Type system Test
------------------------------------------------------------------------
Carbon dioxide.................... Weigh cylinders. Recharge if weight
loss exceeds 10 percent of weight
of the charge. Test time delays,
alarms, and ventilation shutdowns
with carbon dioxide, nitrogen, or
other nonflammable gas as stated in
the system manufacturer's
instruction manual. Inspect hoses
for damage or decay. Ensure that
nozzles are unobstructed. Cylinders
must be tested and marked, and all
flexible connections on fixed
carbon dioxide systems must be
tested or renewed, as required by
Sec. Sec. 147.60 and 147.65 of
this chapter.
Halon and Halocarbon.............. Recharge or replace if weight loss
exceeds 5 percent of the weight of
the charge or if cylinder has a
pressure gauge, recharge cylinder
if pressure loss exceeds 10 percent
adjusted for temperature. Test time
delays, alarms, and ventilation
shutdowns with carbon dioxide,
nitrogen, or other nonflammable gas
as stated in the system
manufacturer's instruction manual.
Inspect hoses for damage or decay.
Ensure that nozzles are
unobstructed. Cylinders must be
tested and marked, and all flexible
connections to Halon 1301 and
halocarbon cylinders must be tested
or renewed, as required by Sec.
Sec. 147.60 and 147.65 or Sec.
147.67 of this chapter.
NOTE: Halon 1301 system approvals
have expired, but existing systems
may be retained if they are in good
and serviceable condition to the
satisfaction of the Coast Guard
inspector.
Dry Chemical (cartridge operated). Inspect pressure cartridge and
replace if end is punctured or if
determined to have leaked or is in
an unsuitable condition. Inspect
hose and nozzle to see if they are
clear. Insert charged cartridge.
Ensure dry chemical is free flowing
(not caked) and extinguisher
contains full charge.
Dry chemical (stored pressure).... See that pressure gauge is within
operating range. If not, or if the
seal is broken, weigh or otherwise
determine that extinguisher is
fully charged with dry chemical.
Recharge if pressure is low or dry
chemical is needed.
Foam (stored pressure)............ See that pressure gauge, if so
equipped, is within the operating
range. If not, or if the seal is
broken, weigh or otherwise
determine that extinguisher is
fully charged with foam. Recharge
if pressure is low or foam is
needed. Replace premixed agent
every 3 years.
Inert gas......................... Recharge or replace if cylinder
pressure loss exceeds 5 percent,
adjusted for temperature. Test time
delays, alarms, and ventilation
shutdowns with carbon dioxide,
nitrogen, or other nonflammable gas
as stated in the system
manufacturer's instruction manual.
Inspect hoses and nozzles to ensure
they are clear.
Water mist........................ Test and inspect system in
accordance with the maintenance
instructions in the system
manufacturer's design,
installation, operation, and
maintenance manual.
------------------------------------------------------------------------
(b) Maintenance. In addition to the requirements in paragraph (a)
of this section, all fire-suppression and detection equipment and
systems on board a towing vessel must be maintained in accordance with
the attached nameplate, manufacturer's approved design manual, or as
otherwise provided in any TSMS applicable to the vessel.
(c) Records. (1) The records of inspections and tests of fire-
detection systems and fixed fire-extinguishing systems must be recorded
in the TVR, official logbook, or in accordance with any TSMS applicable
to the vessel. The following minimum information is required:
(i) The dates when inspections and tests were performed, the number
and any other identification of each unit inspected and tested, the
results of the inspections and tests, and the name of the crewmember,
surveyor or auditor and any others conducting the inspections and
tests, must be included.
(ii) Receipts and other records generated by these inspections and
tests must be retained for at least 1 year and made available upon
request.
(2) The records of inspections and tests of hand-portable fire
extinguishers and semi-portable fire-extinguishing systems may be
recorded in accordance with paragraph (c)(1) of this section, or on a
tag attached to each unit by a qualified servicing organization.
Sec. 142.245 Requirements for training crews to respond to fires.
(a) Drills and instruction. The master of a towing vessel must
ensure that each crewmember participates in fire-fighting drills and
receives instruction at least once each month. The instruction may
coincide with the drills, but is not required to do so. All crewmembers
must be familiar with their fire-fighting duties, and, specifically how
to:
(1) Fight a fire in the engine room and elsewhere onboard the
towing vessel, including how to:
(i) Operate all of the fire-extinguishing equipment onboard the
towing vessel;
(ii) Stop any mechanical ventilation system for the engine room and
effectively seal all natural openings to
[[Page 40133]]
the space to prevent leakage of the extinguishing agent; and
(iii) Operate the fuel shut-off(s) for the engine room.
(2) Activate the general alarm;
(3) Report inoperative alarm systems and fire-detection systems;
and
(4) Don a firefighter's outfit and a self-contained breathing
apparatus, if the vessel is so equipped.
(b) Alternative form of instruction. Video training, followed by a
discussion led by someone familiar with the contingencies listed in
paragraph (a) of this section, is an acceptable, alternative form of
instruction. This instruction may occur either onboard or off the
towing vessel.
(c) Participation in drills. Drills must take place onboard the
towing vessel as if there were an actual emergency. They must include:
(1) Participation by all crewmembers;
(2) Breaking out and using, or simulating the use of, emergency
equipment;
(3) Testing of all alarm and detection systems by operation of the
test switch or by activation of one or more devices;
(4) Putting on protective clothing by at least one person, if the
towing vessel is so equipped; and
(5) Functionally testing the self-priming capability of the
portable fire pump, if the towing vessel is so equipped.
(d) Safety orientation. The master must ensure that each crewmember
who has not participated in the drills required by paragraph (a) of
this section and received the instruction required by that paragraph
(a) receives a safety orientation within 24 hours of reporting for
duty. The safety orientation must cover the particular contingencies
listed in paragraph (a) of this section.
Note to Sec. 142.245. See Sec. 140.915 for requirements for
keeping records of training.
Subpart C--Fire Extinguishing and Detection Equipment Requirements
Sec. 142.300 Excepted vessels.
Excepted vessels, as defined in Sec. 136.110 of this subchapter,
need not comply with the provisions of Sec. Sec. 142.315 through
142.330.
Sec. 142.315 Additional fire-extinguishing equipment requirements.
(a) A towing vessel that is:
(1) Certificated for rivers, lakes, bays, and sounds, less than 3
nautical miles from shore on the Great Lakes; or
(2) Certificated for limited coastwise, coastwise, oceans or waters
beyond 3 nautical miles from shore on the Great Lakes, whose contract
for construction was executed prior to August 27, 2003; or
(3) Pushing a barge ahead or hauling a barge alongside, when the
barge's coastwise, limited coastwise, or Great Lakes route is
restricted, as indicated on its COI, so that the barge may operate ``in
fair weather only, within 12 miles of shore'' or with words to that
effect, must be equipped with either:
(i) An approved B-V semi-portable fire-extinguishing system to
protect the engine room; or
(ii) A fixed fire-extinguishing system installed to protect the
engine room.
(b) A towing vessel that is certificated for limited coastwise,
coastwise, oceans, or beyond 3 nautical miles from shore on the Great
Lakes whose contract for construction was executed on or after August
27, 2003, except for those specified in paragraph (a)(3) of this
section, must be equipped with both:
(1) An approved B-V semi-portable fire-extinguishing system to
protect the engine room; and
(2) A fixed fire-extinguishing system installed to protect the
engine room.
Sec. 142.325 Fire pumps, fire mains, and fire hoses.
Each towing vessel must have either a self-priming, power-driven,
fixed fire pump, a fire main, and hoses and nozzles in accordance with
paragraphs (a) through (d) of this section; or a portable pump, and
hoses and nozzles, in accordance with paragraphs (e) and (f) of this
section.
(a) A fixed fire pump must be capable of:
(1) Delivering water simultaneously from the two highest hydrants,
or from both branches of the fitting if the highest hydrant has a
Siamese fitting, at a pitot-tube pressure of at least 344 kilopascals
(kPa) (50 pounds per square inch (psi)), and a flow rate of at least
300 liters per minute (lpm) (80 gallons per minute (gpm)); and
(2) Being energized remotely from a safe place outside the engine
room and at the pump.
(b) All suction valves necessary for the operation of the fire main
must be kept in the open position or capable of operation from the same
place where the remote fire pump control is located.
(c) The fire main must have a sufficient number of fire hydrants
with attached hose to allow a stream of water to reach any part of the
machinery space using a single length of fire hose.
(d) The hose must be a lined commercial fire hose 15 meters (50
feet) in length, at least 40 millimeters (1.5 inches) in diameter, and
fitted with a nozzle made of corrosion-resistant material capable of
providing a solid stream and a spray pattern.
(e) The portable fire pump must be self-priming and power-driven,
with:
(1) A minimum capacity of at least 300 LPM (80 gpm) at a discharge
gauge pressure of not less than 414 kPa (60 psi), measured at the pump
discharge;
(2) A sufficient amount of lined commercial fire hose 15 meters (50
feet) in length, at least 40 mm (1.5 inches) in diameter and
immediately available to attach to it so that a stream of water will
reach any part of the vessel; and
(3) A nozzle made of corrosion-resistant material capable of
providing a solid stream and a spray pattern.
(f) The pump must be stowed with its hose and nozzle outside of the
machinery space.
Sec. 142.330 Fire-detection system requirements.
(a) Fire-detection systems. Except as provided in paragraph (a)(8)
of this section, each towing vessel must have a fire-detection system
installed to detect engine room fires. The owner or managing operator
must ensure the following:
(1) Each detector, control panel, remote indicator panel, and fire
alarm are approved by the Commandant under approval series 161.002 or
listed by a NRTL as set forth in 29 CFR 1910.7;
(2) The system is installed, tested, and maintained in accordance
with the manufacturer's design manual;
(3) The system is arranged and installed so a fire in the engine
room automatically sets off alarms on a fire detection control panel at
the operating station. On vessels with more than one operating station,
only one of them must be outfitted with a fire detection control panel.
Any other operating station must be outfitted with either a fire
detection control panel or a remote indicator panel;
(4) The control panel includes:
(i) A power available light;
(ii) An audible to notify crew of a fire;
(iii) Visual alarm alarms to identify the zone or zones of origin
of the fire;
(iv) A means to silence the audible alarm while maintaining
indication by the visual alarms;
(v) A circuit-fault detector test-switch, or internal supervision
of circuit integrity; and
(vi) Labels for all switches and indicator lights, identifying
their functions.
(5) The system draws power from two sources. Switchover from the
primary source to the secondary source may be either manual or
automatic;
(6) The system serves no other purpose, unless it is an engine room
monitoring system complying with paragraph (a)(8) of this section; and
[[Page 40134]]
(7) The design of the system and its installation on the towing
vessel is certified and inspected by a registered professional engineer
with experience in fire-detection system design, by a technician with
qualifications as a National Institute for Certification in Engineering
Technologies (NICET) level IV fire alarm engineering technician, or by
an authorized classification society with equivalent experience, to
comply with paragraphs (a)(1) through (6) of this section.
(8) A towing vessel whose construction was contracted for prior to
January 18, 2000, may use an existing engine room monitoring system
(with fire-detection capability) instead of a fire-detection system, if
the monitoring system is operable and complies with paragraphs (a)(2)
through (7) of this section, and uses detectors listed by an NRTL.
(b) Smoke detection in berthing spaces. Each towing vessel must be
equipped with a means to detect smoke in the berthing spaces and
lounges that alerts individuals in those spaces. This may be
accomplished by an installed detection system, or by using individual
battery-operated detectors meeting UL 217 (incorporated by reference,
see Sec. 136.112 of this subchapter). Detection systems or individual
detectors must be kept operational at all times when the crew is
onboard the towing vessel.
(c) Heat-detection system in galley. Each new towing vessel
equipped with a galley must have a heat-detection system with one or
more restorable heat-sensing detectors to detect fires in the galley.
The system must be arranged to sound an audible alarm at each operating
station. This may be a separate zone in the detection system required
by paragraph (a) of this section, or a separate detection system
complying with paragraphs (a)(1) and (2) of this section.
PART 143--MACHINERY AND ELECTRICAL SYSTEMS AND EQUIPMENT
Sec.
Subpart A--General
143.100 Purpose.
143.105 Applicability.
143.115 Definitions.
Subpart B--Requirements for All Towing Vessels
143.200 Applicability.
143.205 General.
143.210 Alternate design or operational considerations.
143.215 Existing vessels built to class.
143.220 Machinery space fire prevention.
143.225 Control and monitoring requirements.
143.230 Alarms and monitoring.
143.235 General alarms.
143.240 Communication requirements.
143.245 Readiness and testing.
143.250 System isolation and markings.
143.255 Fuel system requirements.
143.260 Fuel shutoff requirements.
143.265 Additional fuel system requirements for towing vessels built
after January 18, 2000.
143.270 Piping systems and tanks.
143.275 Bilge pumps or other dewatering capability.
143.300 Pressure vessels.
143.400 Electrical systems, general.
143.410 Shipboard lighting.
143.415 Navigation lights.
143.450 Pilothouse alerter system.
143.460 Towing machinery.
Subpart C--Requirements for New Towing Vessels
143.500 Applicability.
143.510 Verification of compliance with design standards.
143.515 Towing vessels built to recognized classification society
rules.
143.520 Towing vessels built to American Boat and Yacht Council
standards.
143.540 Pumps, pipes, valves, and fittings for essential systems.
143.545 Pressure vessels.
143.550 Steering systems.
143.555 Electrical power sources, generators, and motors.
143.560 Electrical distribution panels and switchboards.
143.565 Electrical overcurrent protection other than generators and
motors.
143.570 Electrical grounding and ground detection.
143.575 Electrical conductors, connections, and equipment.
143.580 Alternative electrical installations.
143.585 General requirements for propulsion, steering, and related
controls on vessels that move tank barges carrying oil or hazardous
material in bulk.
143.590 Propulsor redundancy on vessels that move tank barges
carrying oil or hazardous material in bulk.
143.595 Vessels with one propulsor that move tank barges carrying
oil or hazardous material in bulk.
143.600 Alternative standards for vessels that move tank barges
carrying oil or hazardous material in bulk.
143.605 Demonstration of compliance on vessels that move tank barges
carrying oil or hazardous material in bulk.
Authority: 46 U.S.C. 3103, 3301, 3306, 3308, 3316, 8104, 8904;
33 CFR 1.05; DHS Delegation No. 0170.1.
Subpart A--General
Sec. 143.100 Purpose.
This part contains requirements for the design, installation, and
operation of primary and auxiliary machinery and electrical systems and
equipment on towing vessels.
Sec. 143.105 Applicability.
This part applies to all towing vessels subject to this subchapter.
The specific applicability of requirements in each subpart is set forth
in that subpart.
Sec. 143.115 Definitions.
The definitions provided in Sec. 136.110 of this subchapter apply
to this part. In addition, the following definition applies exclusively
to this part:
Independent means the equipment is arranged to perform its required
function regardless of the state of operation, or failure, of other
equipment.
Subpart B--Requirements for All Towing Vessels
Sec. 143.200 Applicability.
(a) This subpart applies to all towing vessels subject to this
subchapter.
(b) Except as noted paragraph (c) of this section, which lists
later implementation dates for requirements in Sec. Sec. 143.450 and
143.460, an existing towing vessel must comply with the applicable
requirements in this part no later than either July 20, 2018 or the
date the vessel obtains a Certificate of Inspection (COI), whichever
date is earlier. The delayed implementation provisions in this section
do not apply to a new towing vessel.
(c) Existing vessels must meet the pilothouse alerter and towing
machinery requirements of Sec. Sec. 143.450 and 143.460 no later than
5 years after the issuance of the first COI for the vessel.
Sec. 143.205 General.
(a) Machinery and electrical systems must be designed and
maintained to provide for safe operation of the towing vessel and
safety of persons onboard under normal and emergency conditions.
(b) The crew of each towing vessel must demonstrate the ability to
operate the primary and auxiliary machinery and electrical systems for
which they are responsible, and to do so under normal and emergency
conditions. This includes, but is not limited to, responses to alarms
and restoration of propulsion and steering in the event of failure.
(c) Propulsion machinery, including main engines, reduction gears,
shafting, bearings, and electrical equipment and systems, must:
(1) Be maintained to ensure proper operation;
(2) Be suitable for route and service; and
(3) Have suitable propulsion controls to provide the operator full
control at each operating station.
(d) Repairs and minor alterations to existing towing vessels must
be made in accordance with this part. New
[[Page 40135]]
installations that are not replacements in kind must comply with the
requirements of subpart C of this part, if applicable.
Sec. 143.210 Alternate design or operational considerations.
(a) Machinery or electrical systems of a novel design, unusual
form, or special material that cannot be reviewed or approved in
accordance with this part, may be approved by the Commanding Officer,
Marine Safety Center. It must be shown by systematic analysis, based on
engineering principles, that the machinery or electrical equipment or
system provides an equivalent level of safety. The owner or managing
operator must submit detailed plans, material component specifications,
and design criteria, including the expected towing vessel service and
operating environment, to the Marine Safety Center. Examples of novel
design include use of liquefied natural gas, compressed natural gas, or
propane fuel for propulsion, and hybrid, fuel cell, or battery
propulsion.
(b) Alternate arrangements or equipment to comply with this part
may be approved in accordance with Sec. 136.115 of this subchapter.
Sec. 143.215 Existing vessels built to class.
(a) An existing towing vessel classed by a recognized
classification society, as appropriate for the intended service and
routes, is considered in compliance with the machinery and electrical
standards of this subpart.
(b) An existing vessel built and equipped to conform to a
recognized classification society's rules, appropriate for the intended
service and routes, but not currently classed, may be deemed by the
Officer in Charge, Marine Inspection (OCMI), or third-party
organization (TPO), to be in compliance with this part, provided that
the towing vessel conforms to the class rules.
(c) Existing vessels meeting either paragraph (a) or (b) of this
section must also meet the requirements of Sec. Sec. 143.245 and
143.450.
Sec. 143.220 Machinery space fire prevention.
(a) All seals and gaskets must be properly maintained to prevent
leaks of flammable or combustible liquid, as those terms are defined in
46 CFR subpart 30.10, into the machinery space.
(b) Piping and machinery components that exceed 220 [deg]C (428
[deg]F), including fittings, flanges, valves, exhaust manifolds, and
turbochargers, must be insulated. Measures must be in place to prevent
flammable or combustible liquid piping leaks from coming into contact
with these components.
(c) Flammable and combustible products must not be stored in
machinery spaces, unless they are stored in a suitable container that
meets the requirements of Sec. 142.225 of this subchapter.
Sec. 143.225 Control and monitoring requirements.
(a) Each towing vessel must have a means to monitor and control the
amount of thrust, rudder angle, and (if applicable) direction of
thrust, at each operating station.
(b) Each towing vessel equipped with rudder(s) must have a means to
monitor and control the position of the rudder(s) at each operating
station.
Sec. 143.230 Alarms and monitoring.
(a) Each towing vessel must have a reliable means to provide
notification when an emergency condition exists or an essential system
develops problems that require attention. The following alarms must be
provided:
(1) Main engine low lubricating oil pressure;
(2) Main engine high cooling water temperature;
(3) Auxiliary generator engine low lubricating oil pressure;
(4) Auxiliary generator engine high cooling water temperature;
(5) High bilge levels;
(6) Low hydraulic steering fluid levels, if applicable; and
(7) Low fuel level, if fitted with a day tank.
(b) Alarms must:
(1) Be visible and audible at each operating station. The alarm
located at the operating station may be a summary alarm; if the alarm
at the operating station is a summary alarm, the specific alarm
condition must be indicated at the machinery or bilge location;
(2) Have a means to test actuation at each operating station or
have a continuous self-monitoring alarm system which actuates if an
alarm point fails or becomes disabled;
(3) Continue until they are acknowledged; and
(4) Not interfere with night vision at the operating station.
(c) The following systems must be equipped with gauges at the
machinery location:
(1) Main engine lubricating oil pressure and main engine RPM;
(2) Main engine cooling water temperature;
(3) Auxiliary generator engine lubricating oil pressure and
auxiliary generator engine RPM;
(4) Auxiliary generator engine cooling water temperature; and
(5) Hydraulic steering fluid pressure, if the vessel is equipped
with hydraulic steering systems.
Sec. 143.235 General alarms.
(a) This section does not apply to an excepted vessel as defined in
Sec. 136.110 of this subchapter.
(b) Each towing vessel must be fitted with a general alarm that:
(1) Is activated at each operating station and can notify persons
onboard in the event of an emergency;
(2) Is capable of notifying persons in any accommodation, work
space, and the engine room;
(3) Has installed, in the engine room and any other area where
background noise makes a general alarm hard to hear, a supplemental
flashing red light that is identified with a sign that reads:
``Attention General Alarm--When Alarm Sounds or Flashes Go to Your
Station''; and
(4) A public-address (PA) system or other means of alerting all
persons on the towing vessel may be used in lieu of the general alarm
in paragraph (b) of this section if the system meets the requirements
of paragrahs (b)(2) and (3) of this section.
Sec. 143.240 Communication requirements.
(a) This section does not apply to an excepted towing vessel as
defined in Sec. 136.110 of this subchapter.
(b) Each towing vessel must be fitted with a communication system
between the pilothouse and the engine room that:
(1) Consists of either fixed or portable equipment, such as a
sound-powered telephone, portable radios, or other reliable method of
voice communication, with a main or reserve power supply that is
independent of the towing vessel's electrical system; and
(2) Provides two-way voice communication and calling between the
pilothouse and either the engine room or a location immediately
adjacent to an exit from the engine room.
(c) Towing vessels with more than one propulsion unit and
independent pilothouse control for all engines are not required to have
internal communication systems.
(d) When the pilothouse engine controls and the access to the
engine room are within 3 meters (10 feet) of each other and allow
unobstructed visible contact between them, direct voice communication
is acceptable instead of a communication system.
Sec. 143.245 Readiness and testing.
(a) Essential systems or equipment must be regularly tested and
examined. Tests and examinations must verify that the system or
equipment functions as
[[Page 40136]]
designed. If a component is found unsatisfactory, it must be repaired
or replaced. Test and examination procedures must be in accordance with
manufacturer's instructions or the Towing Safety Management System
(TSMS) applicable to the vessel, if the vessel has a TSMS.
(b) Each towing vessel must perform the applicable tests in Table
143.245(b) of this section. The tests required by this section must be
recorded in accordance with part 140 of this subchapter.
Table 143.245(b)--Required Tests and Frequency
------------------------------------------------------------------------
Tests of: Frequency:
------------------------------------------------------------------------
Propulsion controls; ahead and astern Before the vessel gets
at the operating station. underway, but no more than
once in any 24 hour period.
Steering controls at the operating Before the vessel gets
station. underway, but no more than
once in any 24 hour period.
Pilothouse alerter system.............. Weekly.
All alternate steering and propulsion At least once every 3 months.
controls.
Power supply for alarm actuation At least once every 3 months.
circuits for alarms required by Sec.
143.230.
Communications required by Sec. Weekly.
143.240.
General alarm if the vessel is so Weekly.
equipped.
Emergency lighting and power if the At least once every 3 months.
vessel is so equipped.
Charge of storage batteries if the At least once every 3 months.
vessel is so equipped, for emergency
lighting and power.
Alarm setpoints........................ Twice every 5 years, with no
more than 3 years elapsing
since last test.
Pressure vessel relief valves.......... Twice every 5 years, with no
more than 3 years elapsing
since last test.
All other essential systems............ At least once every 3 months.
------------------------------------------------------------------------
Sec. 143.250 System isolation and markings.
Electrical equipment, piping for flammable or combustible liquid,
seawater cooling, or fire-fighting systems must be provided with
isolation devices and markings as follows:
(a) Electrical equipment must be provided with circuit isolation
and must be marked as described in Sec. 143.400.
(b) Electrical panels or other enclosures containing more than one
source of power must be fitted with a sign warning persons of this
condition and identifying where to secure all sources.
(c) Piping for flammable or combustible liquid, seawater cooling,
or firefighting systems must be fitted with isolation valves that are
clearly marked by labeling or color coding that enables the crew to
identify its function.
(d) Any piping system that penetrates the hull below the waterline
must be fitted with an accessible valve, located as close to the hull
penetration as is practicable, for preventing the accidental admission
of water into the vessel either through such pipes or in the event of a
fracture of such pipe. The valve must be clearly marked by labeling or
color coding that enables the crew to identify its function.
(e) Color coding required by this section may be met by complying
with coding standards contained in the ISO 14726:2008(E) (incorporated
by reference, see Sec. 136.112 of this subchapter), or in accordance
with the TSMS applicable to the vessel.
Sec. 143.255 Fuel system requirements.
(a) Fuel systems for towing vessel main engines and generators must
have a documented maintenance plan to ensure proper operation of the
system.
(b) A continuous supply of clean fuel must be provided to main
propulsion engines and generators.
(c) The fuel system must include filters and/or purifiers. Where
filters are used:
(1) A supply of spare fuel filters must be provided onboard; and
(2) Fuel filters must be replaced in accordance with manufacturer's
requirements or the vessel's TSMS, if applicable.
(d) Except as otherwise permitted under Sec. 143.210 or Sec.
143.520, no fuel other than diesel fuel may be used.
Sec. 143.260 Fuel shutoff requirements.
(a) This section does not apply to an excepted towing vessel as
defined in Sec. 136.110 of this subchapter.
(b) To stop the flow of fuel in the event of a fire or break in the
fuel line, a remote fuel shutoff valve must be fitted on any fuel line
that supplies fuel directly to a propulsion engine or generator prime
mover.
(c) The valve must be installed in the fuel piping directly outside
of the fuel oil supply tank.
(d) The valve must be operable from a safe place outside the space
where the valve is installed.
(e) Each remote valve control must be marked in clearly legible
letters, at least 25 millimeters (1 inch) high, indicating the purpose
of the valve and the way to operate it.
Sec. 143.265 Additional fuel system requirements for towing vessels
built after January 18, 2000.
(a) Applicability. This section applies to towing vessels that are
not excepted vessels, as defined in Sec. 136.110 of this subchapter,
and that were built after January 18, 2000. Except for outboard engines
or portable bilge or fire pumps, each fuel system must comply with this
section.
(b) Portable fuel systems. The vessel must not incorporate or carry
portable fuel systems, including portable tanks and related fuel lines
and accessories, except when used for outboard engines or portable
bilge or fire pumps. The design, construction, and stowage of portable
tanks and related fuel lines and accessories must comply with the ABYC
H-25 (incorporated by reference, see Sec. 136.112 of this subchapter).
(c) Vent pipes for integral fuel tanks. Each integral fuel tank
must have a vent that connects to the highest point of the tank,
discharges on a weather deck through a bend of 180 degrees, and is
fitted with a 30-by-30-mesh corrosion-resistant flame screen. Vents
from two or more fuel tanks may combine in a system that discharges on
a weather deck. The net cross-sectional area of the vent pipe for the
tank must be not less than 312.3 square millimeters (0.484 square
inches), for any tank filled by gravity. The cross-sectional area of
the vent pipe, or the sum of the vent areas when multiple vents are
used, must not
[[Page 40137]]
be less than that of the fill pipe cross-sectional area for any tank
filled by pump pressure.
(d) Fuel piping. Except as permitted in paragraphs (d)(1) through
(3) of this section, each fuel line must be seamless and made of steel,
annealed copper, nickel-copper, or copper-nickel. Each fuel line must
have a wall thickness no less than 0.9 millimeters (0.035 inches)
except for the following:
(1) Aluminum piping is acceptable on an aluminum-hull towing vessel
if it is at least Schedule 80 in thickness.
(2) Nonmetallic flexible hose is acceptable if it:
(i) Is used in lengths of not more than 0.76 meters (30 inches);
(ii) Is visible and easily accessible;
(iii) Does not penetrate a watertight bulkhead;
(iv) Is fabricated with an inner tube and a cover of synthetic
rubber or other suitable material reinforced with wire braid; and
(v) Either:
(A) If designed for use with compression fittings, is fitted with
suitable, corrosion-resistant, compression fittings, or fittings
compliant with the SAE J1475 Revised JUN96 (incorporated by reference,
see Sec. 136.112 of this subchapter); or
(B) If designed for use with clamps, is installed with two clamps
at each end of the hose. Clamps must not rely on spring tension and
must be installed beyond the bead or flare or over the serrations of
the mating spud, pipe, or hose fitting.
(3) Nonmetallic flexible hose complying with SAE J1942 Revised
APR2007 (incorporated by reference, see Sec. 136.112 of this
subchapter), is also acceptable.
(e) Alternative standards. A towing vessel of less than 79 feet in
length may comply with any of the following standards for fuel systems
instead of those of paragraph (d) in this section:
(1) ABYC H-33 (incorporated by reference, see Sec. 136.112 of this
subchapter);
(2) Chapter 5 of NFPA 302 (incorporated by reference, see Sec.
136.112 of this subchapter); or
(3) 33 CFR chapter I, subchapter S (Boating Safety).
Sec. 143.270 Piping systems and tanks.
Piping and tanks exposed to the outside of the hull must be made of
metal and maintained in a leak free condition.
Sec. 143.275 Bilge pumps or other dewatering capability.
There must be an installed or portable bilge pump for emergency
dewatering. Any portable pump must have sufficient hose length and
pumping capability. All installed bilge piping must have a check/foot
valve in each bilge suction that prevents unintended backflooding
through bilge piping.
Sec. 143.300 Pressure vessels.
(a) Pressure vessels over 5 cubic feet in volume and over 15 pounds
per square inch maximum allowable working pressure (MAWP) must be
equipped with an indicating pressure gauge (in a readily visible
location) and with one or more spring-loaded relief valves. The total
relieving capacity of such relief valves must prevent pressure from
exceeding the MAWP, as established by the manufacturer, by more than 10
percent.
(b) Pressure vessels must be externally examined annually. Relief
valves must be tested in accordance with Sec. 143.245.
(c) All pressure vessels must have the MAWP indicated by a stamp,
nameplate, or other means visible to the crew.
(d) Pressure vessels installed after July 20, 2016 must meet the
requirements of Sec. 143.545.
Sec. 143.400 Electrical systems, general.
(a) Electrical systems and equipment must function properly and
minimize system failures and fire and shock hazards.
(b) Installed electrical power source(s) must be capable of
carrying the electrical load of the towing vessel under normal
operating conditions.
(c) Electrical equipment must be marked with its respective current
and voltage ratings.
(d) Individual circuit breakers on switchboards and distribution
panels must be labeled with a description of the loads they serve.
(e) Electrical connections must be suitably installed to prevent
them from coming loose through vibration or accidental contact.
(f) Electrical equipment and electrical cables must be suitably
protected from wet and corrosive environments.
(g) Electrical components that pose an electrical hazard must be in
an enclosure.
(h) Electrical conductors passing though watertight bulkheads must
be installed so that the bulkhead remains watertight.
(i) The connections of flexible cable plugs and socket outlets must
be designed to prevent unintended separation.
Sec. 143.410 Shipboard lighting.
(a) Sufficient lighting suitable for the marine environment must be
provided within crew working and living areas.
(b) Emergency lighting must be provided for all internal crew
working and living areas. Emergency lighting sources must provide for
sufficient illumination under emergency conditions to facilitate egress
from each space and must be either:
(1) Automatic, battery-operated with a duration of no less than 2
hours; or
(2) Non-electric, phosphorescent adhesive lighting strips that are
installed along escape routes and sufficiently visible to enable egress
with no power.
(c) Each towing vessel must be equipped with at least two portable,
battery-powered lights. One must be located in the pilothouse and the
other at the access to the engine room.
Sec. 143.415 Navigation lights.
(a) Towing vessels more than 65 feet in length must use navigation
lights that meet UL 1104 (incorporated by reference, see Sec. 136.112
of this subchapter) or other standards accepted by the Coast Guard.
(b) Towing vessels 65 feet or less in length may meet the
requirements listed in 33 CFR 183.810 or paragraph (a) of this section.
Sec. 143.450 Pilothouse alerter system.
(a) Except as provided in paragraph (d) or (e) of this section, a
towing vessel with overnight accommodations and alternating watches
(shift work), when pulling, pushing or hauling alongside one or more
barges, must have a system to detect when its master or mate (pilot)
becomes incapacitated. The system must:
(1) Have an alarm in the pilothouse distinct from any other alarm;
(2) Require action from the master or officer in charge of a
navigational watch, during an interval not to exceed 10 minutes, in
order to reset the alarm timer; and
(3) Immediately (within 30 seconds) notify another crewmember if
the pilothouse alarm is not acknowledged.
(b) The time interval for the system alarm must be adjustable. The
time may be adjusted by the owner or managing operator but must not be
in excess of 10 minutes. This time interval, and information on alerter
operation, must be provided on board and specified in the vessel's TSMS
if applicable.
(c) The system alarm may be reset physically (e.g. a push button),
or the reset may be accomplished by a link to other pilothouse action
such as rudder or throttle control movement, or motion detection of
personnel.
(d) A towing vessel need not comply with this section if a second
person is provided in the pilothouse.
[[Page 40138]]
(e) Towing vessels 65 feet or less in length are not required to
have a pilothouse alerter system.
Sec. 143.460 Towing machinery.
(a) Towing machinery such as capstans, winches, and other
mechanical devices used to connect the towing vessel to the tow must be
designed and installed to maximize control of the tow.
(b) Towing machinery for towing astern must have sufficient
safeguards, e.g., towing bitt with crossbar, to prevent the machinery
from becoming disabled in the event the tow becomes out of line.
(c) Towing machinery used to connect the towing vessel to the tow
must be suitable for its intended service. It must be capable of
withstanding exposure to the marine environment, likely mechanical
damage, static and dynamic loads expected during intended service, the
towing vessel's horsepower, and arrangement of the tow.
(d) When a winch that has the potential for uncontrolled release
under tension is used, a warning must be in place at the winch controls
that indicates this. When safeguards designed to prevent uncontrolled
release are utilized, they must not be disabled.
(e) Each owner or managing operator must develop procedures to
routinely examine, maintain, and replace capstans, winches, and other
machinery used to connect the towing vessel to the tow.
Subpart C--Requirements for New Towing Vessels
Sec. 143.500 Applicability.
(a) This subpart applies to a new towing vessel, as defined in
Sec. 136.110 of this subchapter, unless it is an excepted vessel.
(b) Machinery or electrical systems of a novel design, unusual
form, or special material must meet section Sec. 143.210.
(c) Unless otherwise noted in Sec. Sec. 143.515 and 143.520, new
towing vessels must also meet the requirements of subpart B of this
part.
Sec. 143.510 Verification of compliance with design standards.
Verification of compliance with the machinery and electrical design
standards in this subpart is obtained by following the provisions in
Sec. Sec. 144.135 through 144.145 of this subchapter.
Sec. 143.515 Towing vessels built to recognized classification
society rules.
(a) Except as noted in paragraph (c) of this section, a towing
vessel classed by the American Bureau of Shipping (ABS), in accordance
with the ABS Rules for Building and Classing Steel Vessels Under 90
Meters (295 Feet) in Length, or the ABS Rules for Building and Classing
Steel Vessels for Service on Rivers and Intracoastal Waterways
(incorporated by reference, see Sec. 136.112 of this subchapter), as
appropriate for the intended service and routes, complies with this
subpart.
(b) Except as noted in paragraph (c) of this section, a towing
vessel built and equipped to conform to the ABS rules specified in
paragraph (a) of this section and appropriate for the intended service
and routes, but not currently classed, may be deemed by the OCMI or a
TPO to be in compliance with this subpart if it can be shown that the
vessel continues to conform to the ABS rules.
(c) A vessel that complies with this subpart as described in
paragraph (a) or (b) must also meet the requirements described in
Sec. Sec. 143.585 through 143.595 or the requirements of Sec. 143.600
if it moves tank barges carrying oil or hazardous material in bulk.
(d) Vessels meeting either paragraph (a) or (b) of this section are
considered as being in compliance with subpart B of this part except
for the readiness and testing requirements of Sec. 143.245, and
pilothouse alerter requirements of Sec. 143.450.
(e) Towing vessels built to other recognized classification society
rules, appropriate for the intended route and service, may be
considered compliant with provisions in this subpart upon approval by
the Coast Guard.
Sec. 143.520 Towing vessels built to American Boat and Yacht Council
standards.
(a) Except as noted in paragraphs (b) and (c) of this section, a
new towing vessel 65 feet (19.8 meters) or less in length built to
conform with the American Boat and Yacht Council (ABYC) standards
listed in this paragraph (a) (incorporated by reference, see Sec.
136.112 of this subchapter), complies with this subpart:
(1) E-11 (2003)--AC & DC Electrical Systems on Boats;
(2) H-2 (2002)--Ventilation of Boats Using Gasoline;
(2) H-22 (2005)--Electric Bilge Pump Systems;
(3) H-24 (2007)--Gasoline Fuel Systems;
(4) H-25 (2003)--Portable Gasoline Fuel Systems;
(5) H-32 (2004)--Ventilation of Boats Using Diesel Fuel;
(6) H-33 (2005)--Diesel Fuel Systems;
(7) P-1 (2002)--Installation of Exhaust Systems for Propulsion and
Auxiliary Engines; and
(8) P-4 (2004)--Marine Inboard Engines and Transmissions.
(b) New towing vessels, 65 feet or less in length, built to the
ABYC standards specified in this section are considered compliant with
subpart B of this part except for the readiness and testing
requirements of Sec. 143.245.
(c) If the vessel moves tank barges carrying oil or hazardous
material in bulk, it must meet either the requirements described in
Sec. Sec. 143.585 through 143.595 or the requirements described in
Sec. 143.600.
Sec. 143.540 Pumps, pipes, valves, and fittings for essential
systems.
(a) Pumps, pipes, valves, and fittings in essential systems on
vessels must meet ABS Rules for Building and Classing Steel Vessels
Under 90 Meters (295 Feet) in Length (incorporated by reference, see
Sec. 136.112 of this subchapter), Part 4, Chapter 4.
(b) Pumps, pipes, valves, and fittings in essential systems on
towing vessels operating exclusively on rivers or intracoastal
waterways may meet ABS Rules for Building and Classing Steel Vessels
for Service on Rivers and Intracoastal Waterways (incorporated by
reference, see Sec. 136.112 of this subchapter), Part 4, Chapter 3.
Sec. 143.545 Pressure vessels.
(a) In lieu of meeting the requirements of Sec. 143.300, pressure
vessels installed on new towing vessels must meet the requirements of
this section.
(b) Pressure vessels over 5 cubic feet in volume and more than 15
psi maximum allowable working pressure must meet ABS Rules for Building
and Classing Steel Vessels under 90 Meters (295 Feet) in Length
(incorporated by reference, see Sec. 136.112 of this subchapter), Part
4, Chapter 1, Section 1.
Sec. 143.550 Steering systems.
(a) Steering systems must meet ABS Rules for Building and Classing
Steel Vessels under 90 Meters (295 Feet) in Length (incorporated by
reference, see Sec. 136.112 of this subchapter), Part 4, Chapter 3,
Section 3.
(b) Steering systems on new towing vessels operating exclusively on
rivers or intracoastal waterways may meet ABS Rules for Building and
Classing Steel Vessels for Service on Rivers and Intracoastal Waterways
(incorporated by reference, see Sec. 136.112 of this subchapter), Part
4, Chapter 2, Section 3.
[[Page 40139]]
Sec. 143.555 Electrical power sources, generators, and motors.
(a) General requirements. (1) There must be a source of electrical
power sufficient for:
(i) All essential systems as defined by Sec. 136.110 of this
subchapter;
(ii) Minimum conditions of habitability; and
(iii) Other installed or portable systems and equipment.
(2) Generators and motors must be suitably rated for the
environment where they operate, marked with their respective ratings,
and suitably protected against overcurrent.
(3) A towing vessel, other than an excepted vessel, must have a
backup or a second power source that has adequate capacity to supply
power to essential alarms, lighting, radios, navigation equipment, and
any other essential system identified by the cognizant OCMI or a TPO.
(b) Specific requirements. (1) The owner or managing operator must
complete a load analysis that shows that the electrical power source is
sufficient to power the sum of connected loads described in paragraph
(a)(1) of this section utilizing an appropriate load factor for each
load. A record of the analysis must be retained by the owner or
managing operator.
(2) Installed generators and motors must have a data plate listing
rated kilowatts and power factor (or current), voltage, and rated
ambient temperature.
(3) Generators must be provided with overcurrent protection no
greater than 115 percent of their rated current and utilize a
switchboard or distribution panel.
(4) Motors must be provided with overcurrent protection that meets
Parts I through VII, Article 430 of NFPA's National Electrical Code
(NEC) (incorporated by reference, see Sec. 136.112 of this
subchapter). Steering motor circuits must be protected as per Part 4
Chapter 6 Section 2, Regulation 11 (except 11.7) ofABS Rules for
Building and Classing Steel Vessels Under 90 Meters (295 feet) in
Length (incorporated by reference, see Sec. 136.112 of this
subchapter).
(5) Generators and motors installed in machinery spaces must be
certified to operate in an ambient temperature of 50 [deg]C or be
derated, or it can be shown that 40 [deg]C ambient temperature will not
be exceeded in these spaces.
(6) Each generator and motor, except a submersible-pump motor, must
be in an accessible space which is adequately ventilated and as dry as
practicable, and must be mounted above the bilges.
(7) A generator driven by a main propulsion unit (such as a shaft
generator) may be considered one of the power sources required by
paragraph (a) of this section.
(8) Other than excepted vessels, each towing vessel must be
arranged so that the following essential loads can be energized from
two independent sources of electricity:
(i) High bilge level alarm required by Sec. 143.230;
(ii) Emergency egress lighting, unless the requirements of Sec.
143.410(b)(1) or (2) are met;
(iii) Navigation lights;
(iv) Pilothouse lighting;
(v) Engine room lighting;
(vi) Any installed radios and navigation equipment as required by
Sec. Sec. 140.715 and 140.725;
(vii) All distress alerting communications equipment listed in
Sec. Sec. 140.715 and 140.725;
(viii) Any installed fire detection system; and
(ix) Any essential system identified by the cognizant OCMI or TPO,
if applicable.
(9) If a battery is used as the second source of electricity
required by paragraph (b)(8) of this section, it must be capable of
supplying the loads for at least three hours. There must be a means to
monitor the condition of the battery backup power source.
Sec. 143.560 Electrical distribution panels and switchboards.
(a) Each distribution panel or switchboard on a towing vessel must
be:
(1) In a location that is accessible, as dry as practicable,
adequately ventilated, and protected from falling debris and dripping
or splashing water; and
(2) Totally enclosed and of the dead-front type.
(b) Each switchboard accessible from the rear must be constructed
to prevent a person's accidental contact with energized parts.
(c) Nonconductive mats or grating must be provided on the deck in
front of each switchboard and, if it is accessible from the rear, on
the deck behind the switchboard.
(d) Each un-insulated current-carrying part must be mounted on
noncombustible, nonabsorbent, and high-dielectric insulating material.
(e) Equipment mounted on a door of an enclosure must be constructed
or shielded so that a person will not come into accidental contact with
energized parts.
Sec. 143.565 Electrical overcurrent protection other than generators
and motors.
(a) General requirement. Power and lighting circuits on towing
vessels must be protected by suitable overcurrent protection.
(b) Specific requirements. (1) Cable and wiring used in power and
lighting circuits must have overcurrent protection that opens the
circuit at the standard setting closest to 80 percent of the
manufacturer's listed ampacity. Overcurrent protection setting
exceptions allowed by NFPA's National Electrical Code (NEC), Article
240 (incorporated by reference, see Sec. 136.112 of this subchapter)
may be employed.
(2) If the manufacturer's listed ampacity is not known, tables
referenced in Article 310.15(B) of the NEC (incorporated by reference,
see Sec. 136.112 of this subchapter) must be used, assuming a
temperature rating of 75 [deg]C and an assumed temperature of 50 [deg]C
for machinery spaces and 40 [deg]C for other spaces.
(3) Overcurrent protection devices must be installed in a manner
that will not open the path to ground in a circuit; only ungrounded
conductors must be protected. Overcurrent protection must be
coordinated such that an overcurrent situation is cleared by the
circuit breaker or fuse nearest to the fault.
(4) Each transformer must have protection against overcurrent that
meets Article 450 of the NEC (incorporated by reference, see Sec.
136.112 of this subchapter).
(5) On a towing vessel, other than an excepted vessel as defined in
Sec. 136.110 of this subchapter, essential systems and non-essential
systems must not be on the same circuit or share the same overcurrent
protective device.
Sec. 143.570 Electrical grounding and ground detection.
(a) An ungrounded distribution system must be provided with a
ground detection system located at the main switchboard or distribution
panel that provides continuous indication of circuit status to ground,
with a provision to temporarily remove the indicating device from the
reference ground.
(b) A dual voltage or grounded electrical distribution system must
have the neutral suitably grounded. There must be only one connection
to ground, regardless of the number of power sources. This connection
must be at the main switchboard or distribution panel.
(c) On a metallic towing vessel, a grounded distribution system
must be grounded to the hull. This grounded system must be connected to
a common, non-aluminum ground plate. The ground plate must have only
one connection to the main switchboard or distribution panel, and the
connection
[[Page 40140]]
must be readily accessible for examination.
(d) On a nonmetallic towing vessel, all electrical equipment must
be grounded to a common ground. Multiple ground plates bonded together
are acceptable.
(e) Each grounding conductor of a cable must be identified by one
of the following means:
(1) Green braid or green insulation; or
(2) Stripping the insulation from the entire exposed length of the
grounding conductor.
(f) A towing vessel's hull may not carry current as a conductor,
except for an impressed-current cathodic-protection system or a battery
system used to start an engine.
(g) Cable armor may not be used to ground electrical equipment or
systems.
(h) Each receptacle outlet and attachment plug for a portable lamp,
tool, or similar apparatus operating at 100 or more volts must have a
grounding pole and a grounding conductor in the portable cord.
(i) In a grounded distribution system, only grounded, three-prong
appliances may be used. This does not apply to double-insulated
appliances or tools and appliances of 50 volts or less.
Sec. 143.575 Electrical conductors, connections, and equipment.
(a) Each cable and wire on a towing vessel must be installed to
meet the following requirements:
(1) Each conductor must have sufficient current-carrying capacity
for the circuit in which it is used.
(2) Cable hangers for overhead and vertical cable runs must be
installed with metal supports and retention devices at least every 48
inches.
(3) Each wire and cable run must be installed in a manner to
prevent contact with personnel, mechanical hazards, and leaking fluids.
Wire and cable runs must not be installed in bilges, across a normal
walking path, or less than 24 inches from the path of movable machinery
(e.g., cranes, elevators, forktrucks, etc., where the machinery
location can change) unless adequately protected.
(4) Connections and terminations must be suitable for the installed
conductors, and must retain the original electrical, mechanical, flame-
retarding, and where necessary, fire-resisting properties of the
conductor. If twist-on types of connectors are used, the connections
must be made within an enclosure and the insulated cap of the connector
must be secured to prevent loosening due to vibration. Twist-on type of
connectors may not be used for making joints in cables, facilitating a
conductor splice, or extending the length of a circuit.
(5) Each cable and wire must be installed so as to avoid or reduce
interference with radio reception and compass indication.
(6) Each cable and wire must be protected from the weather.
(7) Each cable and wire must be supported in order to avoid chafing
or other damage.
(8) Each cable and wire must be protected by metal coverings or
other suitable means, if in areas subject to mechanical abuse.
(9) Each cable and wire must be suitable for low temperature and
high humidity, if installed in refrigerated compartments.
(10) Each cable and wire must be located outside a tank, unless it
supplies power to equipment in the tank.
(11) If wire is installed in a tank, it must have sheathing or wire
insulation compatible with the fluid in a tank.
(b) Extension cords must not be used as a permanent connection to a
source of electrical power.
(c) Multi-outlet adapters (power strips) may not be connected to
other adapters (``daisy-chained''), or otherwise used in a manner that
could overload the capacity of a receptacle.
Sec. 143.580 Alternative electrical installations.
In lieu of meeting the requirements of Sec. Sec. 143.555 through
143.575, a vessel may meet the following:
(a) ABS Rules for Building and Classing Steel Vessels Under 90
Meters (295 Feet) in Length (incorporated by reference, see Sec.
136.112 of this subchapter), Part 4, Chapter 6; or
(b) ABS Rules for Building and Classing Steel Vessels for Service
on Rivers and Intracoastal Waterways (incorporated by reference, see
Sec. 136.112 of this subchapter), Part 4, Chapter 5, if they operate
exclusively on rivers or intracoastal waterways.
Sec. 143.585 General requirements for propulsion, steering, and
related controls on vessels that move tank barges carrying oil or
hazardous material in bulk.
(a) There must be an alternate means to control the propulsion and
steering system which must:
(1) Be independent of the primary control required by Sec.
143.225;
(2) Be located at or near the propulsion and steering equipment;
and
(3) Be readily accessible and suitable for prolonged operation.
(b) There must be a means to communicate between each operating
station and the alternate propulsion and steering controls.
(c) There must be a means to stop each propulsion engine and
steering motor from each operating station.
(d) The means to monitor the amount of thrust, rudder angle, and if
applicable, direction (ahead or astern) of thrust must be independent
of the controls required by Sec. 143.225.
(e) The propulsion control system required by Sec. 143.225 must be
designed so that, in the event of a single failure of any component of
the system, propeller speed and direction of thrust are maintained or
reduced to zero.
(f) On a towing vessel with an integrated steering and propulsion
system, such as a Z-drive, the control system required by Sec. 143.225
must be designed so that, in the event of a single failure of any
component of the system, propeller speed and direction of thrust are
maintained or the propeller speed is reduced to zero.
(g) An audible and visual alarm must actuate at each operating
station when:
(1) The propulsion control system fails;
(2) A non-follow up steering control system fails, if installed;
and
(3) The ordered rudder angle does not match the actual rudder
position on a follow-up steering control system, if installed. This
alarm must have an appropriate delay and error tolerance to eliminate
nuisance alarms.
(h) Alarms must be separate and independent of the control system
required by Sec. 143.225.
(i) A means of communication must be provided between each
operating station and any crewmember(s) required to respond to alarms.
(j) The two sources of electricity required by Sec. 143.555(a)(3)
and (b)(8) must be capable of powering electrical loads needed to
maintain propulsion, steering, and related controls for not less than 3
hours.
(k) The second source of supply required by Sec. 143.555(a)(3)
must automatically start to help restore or maintain power to
propulsion, steering, and related controls when the main power source
fails.
(l) Propulsion, steering, or related controls that are directly
reliant on stored energy, such as compressed air, battery power, or
hydraulic pressure, must have two independent stored energy systems,
such as compressed air cylinders, battery banks, or hydraulic
cylinders, that are capable of maintaining the vessel's propulsion,
steering, and related controls.
(m) After a power failure, electrical motors used to maintain
propulsion and steering must automatically restart when power is
restored, unless remote
[[Page 40141]]
control starting is provided at the operating station.
Sec. 143.590 Propulsor redundancy on vessels that move tank barges
carrying oil or hazardous material in bulk.
(a) A towing vessel must be provided with at least two independent
propulsors unless the requirements of Sec. 143.595 are met.
(b) There must be independent controls for each propulsor at each
operating station.
(c) In the event of a failure of a single propulsor, the remaining
propulsor(s) must have sufficient power to maneuver the vessel to a
safe location.
Sec. 143.595 Vessels with one propulsor that move tank barges
carrying oil or hazardous material in bulk.
(a) A towing vessel must have independent, duplicate vital
auxiliaries. For the purpose of this section, vital auxiliaries are the
equipment necessary to operate the propulsion engine, and include fuel
pumps, lubricating oil pumps, and cooling water pumps. In the event of
a failure or malfunction of any single vital auxiliary, the propulsion
engine must continue to provide propulsion adequate to maintain control
of the tow.
(b) In the event of a failure, the corresponding independent
duplicate vital auxiliary, described in paragraph (a) of this section,
must be fully capable of assuming the operation of the failed unit.
Sec. 143.600 Alternative standards for vessels that move tank barges
carrying oil or hazardous material in bulk.
In lieu of meeting Sec. Sec. 143.585 through 143.595, a towing
vessel may comply with Sections 7-5 (class ABCU) and 3-5 (class R2) of
Part 4 of the ABS Rules for Building and Classing Steel Vessels Under
90 Meters (295 Feet) in Length (incorporated by reference, see Sec.
136.112 of this subchapter), except that a vessel that operates
exclusively on rivers or intracoastal waterways does not need to comply
with 4-7-4/3.9 and the automatic day tank fill pump requirement of 4-7-
4/25.3.
Sec. 143.605 Demonstration of compliance on vessels that move tank
barges carrying oil or hazardous material in bulk.
(a) The owner or managing operator of each towing vessel must
devise test procedures that demonstrate compliance with the design and
engineering requirements prescribed in this subpart.
(b) The tests required in paragraph (a) of this section must be
satisfactorily conducted and witnessed by the cognizant OCMI or a TPO.
A record of the tests must be retained by the owner or managing
operator and be available upon request of the cognizant OCMI or TPO.
PART 144--CONSTRUCTION AND ARRANGEMENT
Sec.
Subpart A--General
144.100 Purpose.
144.105 Applicability and delayed implementation.
144.120 A classed vessel.
144.125 A vessel with a load line.
144.130 A vessel built to the International Convention for the
Safety of Life at Sea, 1974, as amended, requirements.
144.135 Verification of compliance with design standards.
144.140 Qualifications.
144.145 Procedures for verification of compliance with design
standards.
144.155 Verification of compliance with design standards for a
sister vessel.
144.160 Marking.
Subpart B--Structure
144.200 Structural standards for an existing vessel.
144.205 Structural standards for a new vessel.
144.215 Special consideration.
Subpart C--Stability and Watertight Integrity
144.300 Stability standards for an existing vessel.
144.305 Stability standards for a new vessel.
144.310 Lifting requirements for a new vessel.
144.315 Weight and moment history requirements for a vessel with
approved lightweight characteristics.
144.320 Watertight or weathertight integrity.
144.330 Review of a vessel's watertight and weathertight integrity.
Subpart D--Fire Protection
144.400 Applicability.
144.405 Fire hazards to be minimized.
144.410 Separation of machinery and fuel tank spaces from
accommodation spaces.
144.415 Combustibles insulated from heated surfaces.
144.425 Waste receptacles.
144.430 Mattresses.
Subpart E--Emergency Escape
144.500 Means of escape.
144.505 Location of escapes.
144.510 Window as a means of escape.
144.515 One means of escape required.
Subpart F--Ventilation
144.600 Ventilation for accommodations.
144.605 Means to stop fans and close openings.
144.610 Ventilation in a vessel more than 65 feet in length.
Subpart G--Crew Spaces
144.700 General requirements.
144.710 Overnight accommodations.
144.720 Crew rest consideration.
Subpart H--Rails and Guards
144.800 Handrails and bulwarks.
144.810 Storm rails.
144.820 Guards in dangerous places.
144.830 Protection against hot piping.
Subpart I--Visibility
144.905 Operating station visibility.
144.920 Window or portlight strength in a new vessel.
Authority: 46 U.S.C. 3103, 3301, 3306, 3308, 3316, 8104, 8904;
33 CFR 1.05; DHS Delegation No. 0170.1.
Subpart A--General
Sec. 144.100 Purpose.
This part details the requirements for design, construction and
arrangement, and verification of compliance with this part, including
document review.
Sec. 144.105 Applicability and delayed implementation.
This part applies to each towing vessel subject to this subchapter.
Note that Sec. Sec. 144.200 and 144.300 only apply to an existing
vessel and that the following sections only apply to a new vessel:
Sec. Sec. 144.205, 144.305, 144.310, 144.405, 144.410, 144.420,
144.425, 144.430, 144.910, and 144.920.
(a) An existing towing vessel must comply with Sec. 144.320
starting July 20, 2016 and it must comply with the other applicable
requirements in this part no later than either July 20, 2018 or the
date the vessel obtains a Certificate of Inspection (COI), whichever
date is earlier.
(b) The delayed implementation provisions in paragraph (a) of this
section do not apply to a new towing vessel.
(c) Alterations or modifications made to the structure or
arrangements of an existing vessel that are a major conversion, made on
or after the July 20, 2016, must comply with the regulations applied to
a new towing vessel of this part insofar as is reasonable and
practicable. Repairs conducted on an existing vessel, resulting in no
significant changes to the original structure or arrangement of the
vessel, must comply with the standards applicable to the vessel at the
time of construction or, as an alternative, with the regulations in
this part.
Sec. 144.120 A classed vessel.
A vessel currently classed by a recognized classification society
is deemed to be in compliance with the requirements of subparts B and C
of this part.
[[Page 40142]]
Sec. 144.125 A vessel with a load line.
A vessel with a valid load line certificate issued in accordance
with subchapter E of this chapter may be deemed in compliance with the
requirements of subparts B and C of this part.
Sec. 144.130 A vessel built to the International Convention for the
Safety of Life at Sea, 1974, as amended, requirements.
A vessel built to the International Convention for the Safety of
Life at Sea, 1974, as amended, is considered to be in compliance with
this part.
Sec. 144.135 Verification of compliance with design standards.
Verification of compliance with the construction and arrangement
design standards of this part must be performed according to the
following table:
Table 144.135--Verification of Compliance With Design Standards
------------------------------------------------------------------------
Then the applicable
If the vessel is-- requirements must be met--
------------------------------------------------------------------------
(a) A new vessel,...................... Before the COI is issued.
(b) A vessel to undergo a major Before the major conversion or
conversion or alteration to the hull, alteration is performed.
machinery, or equipment that may
affect the vessel's safety,
(c) A vessel on which a new Before the new installation is
installation that is not a performed.
``replacement in kind'' is to be made
after July 20, 2016,
------------------------------------------------------------------------
Sec. 144.140 Qualifications.
Use the following table to determine the individual or entity that
may conduct a verification of compliance with design standards required
by Sec. 144.135.
Table 144.140
------------------------------------------------------------------------
Verification of compliance with design
standards may be performed by-- Provided that--
------------------------------------------------------------------------
(a) A registered professional engineer The PE ensures he or she does
(P.E.) licensed by one of the states not exceed the scope of his or
of the United States or the District her P.E. license.
of Columbia;
(b) An authorized classification The authorized classification
society that has been delegated the society ensures that the
authority to issue the SOLAS Cargo employees that perform the
Ship Safety Construction Certificate verification of compliance
under 46 CFR 8.320; holds proper qualifications
for the type of verification
performed.
(c) The Coast Guard.................... ...............................
------------------------------------------------------------------------
Sec. 144.145 Procedures for verification of compliance with design
standards.
(a) Verification of compliance with design standards, when required
by Sec. 144.135, must be performed by an individual or entity who
meets the requirements of Sec. 144.140.
(b) Verification of compliance with design standards must be based
on objective evidence of compliance with the applicable requirements
and include:
(1) A description of the vessel's intended service and route;
(2) The standards used for the vessel's design and construction;
(3) Deviations from the standards used, if any;
(4) A statement that the vessel is suitable for the intended
service and route; and
(5) The identification of the individual or entity in Table 144.140
of Sec. 144.140 who conducted the verification of compliance.
(c) Verification of compliance with design standards must include
review and analyses of sufficient plans, drawings, schematics,
calculations, and other documents to ensure the vessel complies with
the standards used. The plans must be stamped with the seal authorized
for use by the individual or entity performing the verification of
compliance, or otherwise indicate that they have been reviewed and
determined to meet the applicable standards by an individual or entity
who meets the requirements of Sec. 144.140.
(d) A copy of the verified plan must be provided to the cognizant
Officer in Charge, Marine Inspection (OCMI) and the third-party
organization (TPO) conducting the surveys, if applicable, except as
provided in paragraph (e) of this section.
(e) Plans verified by an authorized classification society need
only be provided to the Coast Guard upon request.
(f) If the vessel is a new vessel, a copy of the verified plan must
be available at the construction site.
(g) As referred to in this section, the term plan may include, but
is not limited to drawings, documents, or diagrams of the following:
(1) Outboard profile.
(2) Inboard profile.
(3) Arrangement of decks.
(4) Midship section and scantling plans.
(5) Survival craft embarkation stations.
(6) Machinery installation, including, but not limited to:
(i) Propulsion and propulsion control, including shaft details;
(ii) Steering and steering control, including rudder details;
(iii) Ventilation diagrams;
(iv) Fuel transfer and service system, including tanks;
(v) Piping systems including: bilge, ballast, hydraulic,
combustible and flammable liquids, vents, and overflows; and
(vi) Hull penetrations and shell connections;
(7) Electrical installation including, but not limited to:
(i) Elementary one-line diagram of the power system;
(ii) Cable lists;
(iii) Type and size of generators and prime movers;
(iv) Type and size of generator cables, bus-tie cables, feeders,
and branch circuit cables;
(v) Power and lighting panelboards with number of circuits and
rating of energy consuming devices;
(vi) Capacity of storage batteries;
(vii) Rating of circuit breakers and switches, interrupting
capacity of circuit breakers, and rating and setting of overcurrent
devices; and
(viii) Electrical plant load analysis as required by Sec. 143.555
of this subchapter.
[[Page 40143]]
(8) Lifesaving equipment locations and installation;
(9) Fire protection equipment installation including, but not
limited to:
(i) Fire main system plans and calculations;
(ii) Fixed gas fire extinguishing system plans and calculations;
(iii) Fire detecting system and smoke detecting system plans;
(iv) Sprinkler system diagram and calculations; and
(v) Portable fire extinguisher types, sizes, and locations;
(10) Lines and offsets, curves of form, cross curves of stability,
tank capacities including size and location on vessel, and other
stability documents needed to show compliance; and
(11) Towing arrangements.
Sec. 144.155 Verification of compliance with design standards for a
sister vessel.
(a) Verification of compliance required by Sec. 144.135 is not
required for a sister vessel, provided that:
(1) The original vessel has been verified as complying with this
part;
(2) The owner authorizes the use of the plans for the original
vessels for the new construction of the sister vessel;
(3) The standards used in the design and construction of the
original vessel have not changed since the original verification of
compliance;
(4) The sister vessel is built to the same verified plans,
drawings, schematics, calculations, and other documents and equipped
with machinery of the same make and model as the original vessel, and
has not been subsequently modified;
(5) The sister vessel is built in the same shipyard facility as the
original vessel; and
(6) For a sister vessel subject to a stability standard, that the
conditions in Table 144.155 of this section are met:
Table 144.155
------------------------------------------------------------------------
If-- Then--
------------------------------------------------------------------------
(i) The delivery date of the sister The approved lightweight
vessel is not more than 2 years after characteristics of that
a previous stability test date of earlier vessel are adopted by
either the original vessel or an the sister vessel;
earlier sister vessel,
(ii) Paragraph (a)(6)(i) of this The vertical center of gravity
section does not apply, and the (VCG) of the earlier vessel is
lightweight characteristics determined adopted by the sister vessel
from a deadweight survey of the sister and used with the lightweight
vessel are shown to meet both the displacement and LCG
following criteria: determined from the deadweight
(A) the lightweight displacement survey of the sister vessel;
differs by not more than 3 percent of
the earlier vessel's lightweight
displacement, and
(B) the longitudinal center of gravity
(LCG) differs by not more than 1
percent of the length between
perpendiculars (LBP) of the earlier
vessel's LCG,
(iii) Neither paragraph (a)(6)(i) nor The vessel must undergo a
(ii) of this section apply because stability test in accordance
both the criteria in paragraphs with 46 CFR part 170, subpart
(a)(6)(ii)(A) and (B) of this section F;
are not met and lightweight
characteristics were determined from a
stability test on either the original
vessel or a sister vessel,
(iv) No vessel of the class of sister One vessel of the class must
vessels previously underwent a undergo a stability test in
stability test, accordance with 46 CFR part
170, subpart F, and each
sister vessel to which a
stability standard applies
must meet either paragraph
(a)(6)(ii) or (iii) of this
section.
------------------------------------------------------------------------
(b) A statement that verifies sister vessel status for each element
of paragraph (a) of this section from an individual or entity meeting
the requirements of Sec. 144.140 must be retained and produced upon
request.
Sec. 144.160 Marking.
(a) The hull of each documented vessel must be marked as required
by part 67 of this chapter.
(b) The hull of each undocumented vessel must be marked with its
name and hailing port.
(c) A vessel complying with either Sec. 144.300(a) or Sec.
144.305 must have draft marks that meet the requirements of Sec.
97.40-10 of this chapter.
(d) Each vessel assigned a load line must have the load line marks
and the deck line permanently scribed or embossed as required by
subchapter E of this chapter.
(e) Each watertight door and watertight hatch must be marked on
both sides in clearly legible letters at least 25 millimeters (1 inch)
high: ``WATERTIGHT DOOR--KEEP CLOSED'' or ``WATERTIGHT HATCH--KEEP
CLOSED''.
(f) Each escape hatch and emergency exit used as means of escape
must be marked on both sides in clearly legible letters at least 50
millimeters (2 inches) high: ``EMERGENCY EXIT, KEEP CLEAR''.
Subpart B--Structure
Sec. 144.200 Structural standards for an existing vessel.
An existing vessel may be deemed by the OCMI, or TPO, to be in
compliance with this subpart provided that either:
(a) The vessel is built, equipped, and maintained to conform to the
rules of a recognized classification society appropriate for the
intended service and routes, but not classed; or
(b) The vessel has been both in satisfactory service insofar as
structural adequacy is concerned and does not cause the structure of
the vessel to be questioned by either the OCMI, or TPO engaged to
perform an audit or survey.
Sec. 144.205 Structural standards for a new vessel.
(a) Except as provided in paragraphs (b) and (c) of this section, a
new vessels must comply with the standards established by the American
Bureau of Shipping (ABS) as provided in the following table.
[[Page 40144]]
Table 144.205(a)--Structural Standards for a New Vessel
------------------------------------------------------------------------
For a new vessel to be certificated for ABS Rules for Building and
service on-- Classing--
------------------------------------------------------------------------
(1) Lakes, bays, and sounds, limited Steel Vessels Under 90 Meters
coastwise, coastwise, and oceans (295 Feet) in Length
routes; (incorporated by reference,
see Sec. 136.112 of this
subchapter) apply; or
(2) Rivers or intracoastal waterways Steel Vessels for Service on
routes. Rivers and Intracoastal
Waterways (incorporated by
reference, see Sec. 136.112
of this subchapter) apply.
------------------------------------------------------------------------
(b) Alternate design standards to comply with this subpart may be
approved in accordance with Sec. 136.115 of this subchapter.
(c) The current standards of a recognized classification society,
other than ABS, may be used provided they are accepted by the Coast
Guard as providing an equivalent level of safety.
(d) The structural standard selected must be applied throughout the
vessel including design, construction, installation, maintenance,
alteration, and repair. Deviations are subject to approval by the
Commanding Officer, Marine Safety Center.
Sec. 144.215 Special consideration.
The cognizant OCMI may give special consideration to the structural
requirements for a vessel if that vessel is:
(a) Not greater than 65 feet in length;
(b) Operating exclusively within a limited geographic area; or
(c) Of an unusual design not contemplated by the rules of the
American Bureau of Shipping or other recognized classification society.
Subpart C--Stability and Watertight Integrity
Sec. 144.300 Stability standards for an existing vessel.
(a) The owner or managing operator of an existing vessel operating
under a stability document must be able to readily produce a copy of
such document.
(b) The owner or managing operator of an existing vessel not
operating under a stability document must be able to show at least one
of the following:
(1) The vessel's operation or a history of satisfactory service
does not cause the stability of the vessel to be questioned by either
the Coast Guard or a TPO engaged to perform an audit or survey.
(2) The vessel performs successfully on operational tests to
determine whether the vessel has adequate stability and handling
characteristics.
(3) The vessel has a satisfactory stability assessment by means of
giving due consideration to each item that impacts a vessel's stability
characteristics which include, but are not limited to, the form,
arrangement, construction, number of decks, route, and operating
restrictions of the vessel.
Sec. 144.305 Stability standards for a new vessel.
Each new vessel must meet the applicable stability requirements of
part 170 and, if applicable, of part 173, subpart E, of this chapter in
addition to the requirements in the following table:
Table 144.305--Stability Standards for a New Vessel
------------------------------------------------------------------------
Each new vessel certificated to operate Must meet the requirements of--
on--
------------------------------------------------------------------------
(a) Protected waters................... Sec. 170.173(e)(2) of this
chapter.
(b) Partially protected waters......... Sec. Sec. 170.170 and
170.173(e)(1) of this chapter.
(c) Exposed waters or that is assigned Sec. Sec. 170.170 and
a load line. 174.145 of this chapter.
------------------------------------------------------------------------
Sec. 144.310 Lifting requirements for a new vessel.
Each new vessel equipped for lifting must meet the requirements of
part 173, subpart B, of this chapter.
Sec. 144.315 Weight and moment history requirements for a vessel with
approved lightweight characteristics.
(a) A weight and moment history of changes to the vessel since
approval of its lightweight characteristics (displacement, Longitudinal
Center of Gravity (LCG) and Vertical Center of Gravity (VCG)) must be
maintained. All weight modifications to the vessel (additions,
removals, and relocations) including a calculation of the aggregate
weight change (absolute total of all additions, removals, and
relocations) must be recorded in the history, along with a description
of the change(s), when and where accomplished, moment arms, etc. After
each modification, the lightweight characteristics must be
recalculated.
(b) When the aggregate weight change is more than 2 percent of the
vessel's approved lightweight displacement, or the recalculated change
in the vessel's lightweight LCG is more than 1 percent of the LBP, a
deadweight survey must be performed to determine the vessel's current
lightweight displacement and LCG. Use the following table to determine
when the deadweight survey results or the vessel's aggregate weight
change requires the vessel to undergo a specified stability test:
Table 144.315
------------------------------------------------------------------------
If-- Then--
------------------------------------------------------------------------
(1) The deadweight survey results are the recalculated lightweight
both within 1 percent of the VCG can be accepted as
recalculated lightweight displacement accurate;
and within 1 percent LBP of the
recalculated lightweight LCG,
(2) The deadweight survey results do the vessel must undergo a
not meet the criteria of paragraph stability test in accordance
(b)(1) of this section, with 46 CFR 170, subpart F;
(3) The aggregate weight change is more the vessel must undergo a
than 10 percent of the vessel's stability test in accordance
approved lightweight displacement, with 46 CFR 170, subpart F.
------------------------------------------------------------------------
[[Page 40145]]
Sec. 144.320 Watertight or weathertight integrity.
(a) Each vessel fitted with installed bulwarks around the exterior
of the main deck must have sufficient freeing ports or scuppers or a
combination of freeing ports and scuppers to allow water to run off the
deck quickly without adversely affecting the stability of the vessel.
(b) Closure devices must be provided for deckhouse or hull
penetrations, which open to the exterior of the vessel and which may
allow water to enter the vessel. These devices must be suitable for the
expected route.
Sec. 144.330 Review of a vessel's watertight and weathertight
integrity.
The cognizant OCMI may require review of a vessel's watertight and
weathertight integrity. This review may be performed by an individual
who meets the requirements of Sec. 144.140. The review may include an
examination of a plan that shows the original placement of decks and
bulkheads.
Subpart D--Fire Protection
Sec. 144.400 Applicability.
Except for Sec. 144.415, which applies to each new and existing
vessel, this subpart applies to each new towing vessel.
Sec. 144.405 Fire hazards to be minimized.
Each vessel must be designed and constructed to minimize fire
hazards insofar as reasonable and practicable.
Sec. 144.410 Separation of machinery and fuel tank spaces from
accommodation spaces.
Machinery and fuel tank spaces must be separated from accommodation
spaces by bulkheads. Doors may be installed provided they are the self-
closing type.
Sec. 144.415 Combustibles insulated from heated surfaces.
Internal combustion engine exhaust ducts, galley exhaust ducts and
similar ignition sources must be insulated with noncombustible
insulation if less than 450 mm (18 inches) away from combustible
material. Installations in accordance with ABYC P-1 or NFPA 302
(incorporated by reference, see Sec. 136.112 of this subchapter) will
be considered as meeting the requirements of this section.
Sec. 144.425 Waste receptacles.
Unless other means are provided to ensure that a potential waste
receptacle fire would be limited to the receptacle, waste receptacles
must be constructed of noncombustible materials with no openings in the
sides or bottom.
Sec. 144.430 Mattresses.
Each mattress must comply with either:
(a) The Consumer Product Safety Commission Standard for Mattress
Flammability (FF 4-72, Amended), 16 CFR part 1632, subpart A, and not
contain polyurethane foam; or
(b) IMO Resolution A.688(17) (incorporated by reference, see Sec.
136.112 of this subchapter) in which case the mattress may contain
polyurethane foam.
Subpart E--Emergency Escape
Sec. 144.500 Means of escape.
Where practicable and except as provided in Sec. 144.515, each
space where crew may be quartered or normally employed must have at
least two means of escape. Arrangements on an existing vessel may be
retained if it is impracticable or unreasonable to provide two means of
escape.
Sec. 144.505 Location of escapes.
The two required means of escape must be widely separated and, if
possible, at opposite ends or sides of the space. Means may include
normal and emergency exits, passageways, stairways, ladders, deck
scuttles, doors, and windows.
Sec. 144.510 Window as a means of escape.
On a vessel of 65 feet (19.8 meters) or less in length, a window or
windshield of sufficient size and proper accessibility may be used as
one of the required means of escape from an enclosed space, provided
it:
(a) Does not lead directly overboard;
(b) Is suitably marked; and
(c) Has a means to open the window or break the glass.
Sec. 144.515 One means of escape required.
Only one means of escape is required from a space where:
(a) The space has a deck area less than 30 square meters (322
square feet);
(b) There is no stove, heater, or other source of fire in the
space;
(c) The means of escape is located as far as possible from a
machinery space or fuel tank; and
(d) If an accommodation space, the single means of escape does not
include a deck scuttle or a ladder.
Subpart F--Ventilation
Sec. 144.600 Ventilation for accommodations.
Each accommodation space on a vessel must be ventilated in a manner
suitable for the purpose of the space.
Sec. 144.605 Means to stop fans and close openings.
Means must be provided for stopping each fan in a ventilation
system serving machinery spaces and for closing, in case of fire, each
doorway, ventilator, and annular space around funnels and other
openings into such spaces.
Sec. 144.610 Ventilation in a vessel more than 65 feet in length.
A vessel of more than 65 feet (19.8 meters) in length with
overnight accommodations must have a mechanical ventilation system
unless a natural system, such as opening windows, portholes, or doors,
will provide adequate ventilation in ordinary weather.
Subpart G--Crew Spaces
Sec. 144.700 General requirements.
(a) A crew accommodation space and a work space must be of
sufficient size, adequate construction, and with suitable equipment to
provide for the safe operation of the vessel and the protection and
accommodation of the crew in a manner practicable for the size,
facilities, service, route, and modes of operation of the vessel.
(b) The deck above a crew accommodation space must be located above
the deepest load waterline.
Sec. 144.710 Overnight accommodations.
Overnight accommodations must be provided for crewmembers if it is
operated more than 12 hours in a 24-hour period, unless the crew is put
ashore and the vessel is provided with a new crew.
Sec. 144.720 Crew rest consideration.
The condition of the crew accommodations must consider the
importance of crew rest. Factors to consider include vibrations,
ambient light, noise levels, and general comfort. Every effort must be
made to ensure that quarters help provide a suitable environment for
sleep and off-duty rest.
Subpart H--Rails and Guards
Sec. 144.800 Handrails and bulwarks.
(a) Rails or equivalent protection must be installed near the
periphery of all decks accessible to crew. Equivalent protection may
include lifelines, wire rope, chains, and bulwarks that provide
strength and support equivalent to fixed rails.
(b) In areas where space limitations make deck rails impractical,
such as at narrow catwalks in way of deckhouse sides, hand grabs may be
substituted.
[[Page 40146]]
Sec. 144.810 Storm rails.
On a vessel in oceans or coastwise service, suitable storm rails or
hand grabs must be installed in all passageways and at the deckhouse
sides where persons onboard might have normal access.
Sec. 144.820 Guards in dangerous places.
An exposed hazard such as gears and rotating machinery, must be
protected by a cover, guard or rail. This is not meant to restrict
access to towing equipment such as winches, drums, towing gear or
steering compartment equipment necessary for the operation of the
vessel.
Sec. 144.830 Protection against hot piping.
Each exhaust pipe from an internal combustion engine which is
within reach of personnel must be insulated or otherwise guarded to
prevent burns. On a new vessel, each pipe that contains vapor, gas, or
liquid that has a temperature exceeding 150[emsp14][deg]F (65.5 [deg]C)
which is within reach of personnel must be insulated where necessary or
otherwise guarded to prevent injury.
Subpart I--Visibility
Sec. 144.905 Operating station visibility.
(a) Windows and other openings at the operating station must be of
sufficient size and properly located to provide a clear field of vision
for safe operation in any condition.
(b) Means must be provided to ensure that windows immediately
forward of the operating station in the pilothouse allow for adequate
visibility to ensure safe navigation regardless of weather conditions.
This may include mechanical means such as windshield wipers, defoggers,
clear-view screens, or other such means, taking into consideration the
intended route of the vessel.
(c) The field of vision from the operating station on a new vessel
must extend over an arc from dead ahead to at least 60 degrees on
either side of the vessel.
(d) If a new vessel is towing astern, the operating station must be
provided with a view aft.
(e) In a new vessel, glass or other glazing material used in
windows at the operating station must have a light transmission of not
less than 70 percent according to Test 2 of ANSI/SAE Z 26.1-1996
(incorporated by reference, see Sec. 136.112 of this subchapter) and
must comply with Test 15 of ANSI/SAE Z 26.1-1996 for Class I Optical
Deviation.
Sec. 144.920 Window or portlight strength in a new vessel.
(a) Each window or portlight, and its means of attachment to the
hull or the deckhouse, must be capable of withstanding the maximum
expected load from wind and waves, due to its location on the vessel
and the vessel's authorized route.
(b) Any covering or protection placed over a window or porthole
that could be used as a means of escape must be able to be readily
removed or opened from within the space.
(c) Glass and other glazing materials used in windows of a new
towing vessel must be materials that will not break into dangerous
fragments if fractured.
PART 199--LIFESAVING SYSTEMS FOR CERTAIN INSPECTED VESSELS
0
14. The authority citation for part 199 continues to read as follows:
Authority: 46 U.S.C. 3306, 3703; Pub. L. 103-206, 107 Stat.
2439; Department of Homeland Security Delegation No. 0170.1.
0
15. In Sec. 199.01, redesignate paragraphs (a)(3) and (4) as
paragraphs (a)(4) and (5), respectively, and add new paragraph (a)(3)
to read as follows:
Sec. 199.01 Purpose.
(a) * * *
(3) Towing vessels, which are covered by subchapter M of this
chapter;
* * * * *
0
16. Amend Sec. 199.10 as follows:
0
a. Revise Table 199.10(a); and
0
b. In paragraph (b) after the words ``small passenger vessels;'' add
the words ``towing vessels;''.
The revision reads as follows:
Sec. 199.10 Applicability.
(a) * * *
Table 199.10(a)--Lifesaving Requirements for Inspected Vessels
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subchapter W subparts applicable \1\
Row 46 CFR subchapter Vessel type Vessel service ------------------------------------------------ Other \2\
A B C D E F
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.............. D................. Tank >=500 tons... International X X ...... X ...... ......
voyage \3\.
2.............. D................. Tank <500 tons.... International X X ...... X X X ...........................
voyage \3\.
3.............. D................. Tank.............. All other services X X ...... X X X ...........................
4.............. H................. Passenger......... International X X X ...... ...... ...... ...........................
voyage \3\.
5.............. H................. Passenger......... Short Inter'l X X X ...... ...... ...... ...........................
voyage \3\.
6.............. H................. Passenger......... All other services X X X ...... X X ...........................
7.............. I................. Cargo >=500 tons.. International X X ...... X ...... ...... ...........................
voyage \3\.
8.............. I................. Cargo <500 tons... International X X ...... X X X ...........................
voyage \3\.
9.............. I................. Cargo............. All other services X X ...... X X X ...........................
10............. I-A............... MODU.............. All............... ...... ...... ...... ...... ...... ...... 46 CFR part 108.
11............. K................. Small Passenger... International X X X ...... ...... ...... ...........................
voyage \3\.
12............. K................. Small Passenger... Short Inter'l X X X ...... ...... ...... ...........................
voyage \3\.
13............. K................. Small Passenger... All other services ...... ...... ...... ...... ...... ...... 46 CFR part 117.
14............. L................. Offshore Supply... All............... ...... ...... ...... ...... ...... ...... 46 CFR part 133.
15............. M................. Towing Vessels.... International X X ...... X ...... ...... ...........................
voyage \3\.
16............. M................. Towing Vessels.... All other......... ...... ...... ...... ...... ...... ...... 46 CFR part 141.
[[Page 40147]]
17............. R--Part 167....... Public Nautical International X X X \4\ X \5\ ...... ...... ...........................
School. voyage \3\.
18............. R--Part 167....... Public Nautical All other services X X X \4\ X \5\ X X ...........................
School.
19............. R--Part 168....... Civilian Nautical International X X X \4\ X \5\ ...... ...... ...........................
School. voyage \3\.
20............. R--Part 168....... Civilian Nautical All other services X X X \4\ X \5\ X X ...........................
School.
21............. R--Part 169....... Sailing School.... All services...... ...... ...... ...... ...... ...... ...... 46 CFR 169.500.
22............. T................. Small Passenger... International X X X ...... ...... ...... ...........................
voyage \3\.
23............. T................. Small Passenger... Short Int'l voyage X X X ...... ...... ...... ...........................
\3\.
24............. T................. Small Passenger... All other services ...... ...... ...... ...... ...... ...... 46 CFR part 180.
25............. U................. Oceanographic Res. International X X X \4\ X \5\ ...... ...... ...........................
voyage \3\.
26............. U................. Oceanographic Res. All other services X X X \4\ X \5\ X X ...........................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ Subchapter W of this chapter does not apply to inspected nonself-propelled vessels without accommodations or work stations on board.
\2\ Indicates section where primary lifesaving system requirements are located. Other regulations may also apply.
\3\ Not including vessels solely navigating the Great Lakes of North America and the Saint Lawrence River as far east as a straight line drawn from Cap
des Rosiers to West Point, Anticosti Island and, on the north side Anticosti Island, the 63rd meridian.
\4\ Applies to vessels carrying more than 50 special personnel, or vessels carrying not more than 50 special personnel if the vessels meet the
structural fire protection requirements in subchapter H of this chapter for passenger vessels of the same size.
\5\ Applies to vessels carrying not more than 50 special personnel that do not meet the structural fire protection requirements in subchapter H of this
chapter for passenger vessels of the same size.
* * * * *
Dated: May 25, 2016.
Paul F. Zukunft,
Admiral, U.S. Coast Guard, Commandant.
[FR Doc. 2016-12857 Filed 6-10-16; 4:15 pm]
BILLING CODE 9110-04-P