[Federal Register Volume 61, Number 215 (Tuesday, November 5, 1996)]
[Rules and Regulations]
[Pages 57268-57276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28406]
[[Page 57267]]
_______________________________________________________________________
Part VII
Department of Transportation
_______________________________________________________________________
Coast Guard
_______________________________________________________________________
46 CFR Part 28
Commercial Fishing Industry Vessel Regulations; Interim Rule
Federal Register / Vol. 61, No. 215 / Tuesday, November 5, 1996 /
Rules and Regulations
[[Page 57268]]
DEPARTMENT OF TRANSPORTATION
Coast Guard
46 CFR Part 28
[CGD 96-046]
RIN 2115-AF35
Commercial Fishing Industry Vessel Regulations
AGENCY: Coast Guard, DOT.
ACTION: Interim Rule with request for comments.
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SUMMARY: This interim rule adopts requirements for safety equipment and
vessel operating procedures on commercial fishing industry vessels. The
Coast Guard is issuing these regulations to improve the overall safety
of U.S. Commercial Fishing Industry Vessels pursuant to the Commercial
Fishing Industry Vessel Safety Act of 1988 and to make several
technical corrections.
DATES: This interim rule is effective on February 3, 1997, except for
Sec. 28.120 on survival craft which is effective May 5, 1997. Written
comments must be received on or before December 20, 1996.
ADDRESSES: Unless otherwise indicated, documents referred to in this
preamble are available for inspection or copying at the office of the
Executive Secretary, Marine Safety Council (G-LRA/3406), U.S. Coast
Guard Headquarters, 2100 Second Street SW., room 3406, Washington, DC
20593-0001 between 8 a.m. and 3 p.m., Monday through Friday, except
Federal holidays. The telephone number is (202) 267-1477.
FOR FURTHER INFORMATION CONTACT: Commander Mark D. Bobal, Project
Manager, G-MSO-2, telephone (202) 267-0836.
SUPPLEMENTARY INFORMATION:
Request for Comments
The Coast Guard encourages interested persons to participate in
this rulemaking by submitting written data, views or arguments. Persons
submitting comments should include their names and addresses, identify
this rulemaking (CGD 88-079a) and the specific section of this rule to
which each comment applies, and give the reason for each comment.
Please submit two copies of all comments and attachments in an unbound
format, no larger than 8 by 11 inches, suitable for copying and
electronic filing. Persons desiring an acknowledgment that their
comments were received should include a self-addressed stamped postcard
or envelope.
The Coast Guard plans no public meetings. Persons may request a
public meeting by writing to the Marine Safety Council at the address
under ADDRESSES. The request should include the reasons why a hearing
would be beneficial. If local presentations will aid this rulemaking,
the Coast Guard will hold a public meeting at a time and place
announced by a later notice in the Federal Register.
Background and Regulatory History
Commercial Fishing Industry Vessel Safety Act of 1988
On September 9, 1988, title 46, United States Code, was amended in
chapter 45 (Uninspected Commercial Fishing Industry Vessels, sections
4501 through 4508) by the Commercial Fishing Industry Vessel Safety Act
of 1988, Pub. L. 100-424 (``the Act''). The Act requires the Secretary
of Transportation to prescribe regulations for safety equipment and
vessel operating procedures on commercial fishing industry vessels. The
Secretary further delegated the authority to regulate commercial
fishing vessel to the Commandant of the Coast Guard. This rulemaking
was initiated to implement certain provisions of the Act. This
rulemaking project does not include requirements pertaining to
immersion suits (found in CGD 88-079c, Notice of Proposed Rulemaking
dated May 20, 1993) or vessel stability; these provisions will be
included in future rulemaking.
Advance Notice of Proposed Rulemaking (ANPRM)
An ANPRM was published in the Federal Register on December 29, 1988
(53 FR 52735), addressing potential requirements for uninspected
fishing, fish processing, and fish tender vessels. In response to this
ANPRM, nearly 200 comment letters were received and considered in
developing the Notice of Proposed Rulemaking.
Notice of Proposed Rulemaking (NPRM)
On April 19, 1990, the Coast Guard published a NPRM in the Federal
Register (55 FR 14924), addressing proposed requirements for
uninspected fishing, fish processing, and fish tender vessels. In
response to the NPRM, the Coast Guard received 500 comments. On August
14, 1991, in order to expedite the regulation package for commercial
fishing industry vessels, the Coast Guard published a final rule.
Final Rule (FR)
A final rule entitled ``Commercial Fishing Industry Vessel
Regulations'' was published in the Federal Register (56 FR 40364).
These regulations are for U.S. documented or state numbered uninspected
fishing, fish processing and fish tender vessel to implement provision
of the Commercial Fishing Industry Vessel Safety Act of 1988. The final
rule indicated that the below listed controversial topics would be the
subject of a subsequent supplemental notice of proposed rulemaking
(SNPRM).
Supplemental Notice of Proposed Rulemaking (SNPRM)
On October 27, 1992, the Coast Guard published a SNPRM in the
Federal Register (57 FR 48670). The controversial topics addressed in
the SNPRM included the Aleutian Trade Act of 1990 (Pub. L. 101-595);
stability for fishing vessels less than 79 feet in length;
administration of exemptions authorized by 46 U.S.C. 4506; termination
of unsafe operations; requirements for survival craft on fishing
vessels with 3 or fewer individuals on board operating within 12 miles
of the coastline and outside the boundary line; and acceptance criteria
for instructors and course curricula.
This interim rule adopts the SNPRM with some changes. It does not
include the provisions relating to the Aleutian Trade Act, and
stability for fishing vessels less than 79 feet in length.
On October 24, 1995, the Coast Guard published a final rule
relating only to the Aleutian Trade Act (60 FR 54441).
Currently, the Coast Guard is working with the Commercial Fishing
Industry Vessel Advisory Committee to finalize the stability section
for vessels less than 79 feet in length which was included in the
SNPRM. The Coast Guard received comments that this section was too
confusing, too costly, and did not address the real causes of vessel
losses. The comments suggested that the majority of problems
encountered by commercial fishing vessels were not caused by
instability, but by uncontrolled flooding which then resulted in vessel
instability. Therefore, the stability section of the SNPRM is being
held in abeyance until further notice.
Discussion of Comments and Changes
In response to the SNPRM, the Coast Guard received 794 comments
during the 120-day comment period. The major concern expressed during
the comment period pertained to proposed survival craft requirements.
Over 400 comments were opposed to the proposed requirements. The Coast
Guard received 326 comments opposing the stability criteria as written,
while only five comments supported the stability
[[Page 57269]]
criteria. Other letters expressed agreement or comment on the other
topics.
Of those comments for which the source could be positively
identified, 464 were from commercial fishermen, 63 from companies
directly related to the fishing industry, 62 from the general public,
50 from organizations or associations representing groups of
individuals such as fishermen or vessel owners who are involved in the
fishing industry, 28 from manufacturers of safety equipment to which
this chapter applies, and 18 from naval architects. Several comments
were received from shipyards, government agencies, insurers of
commercial fishing vessels, and equipment suppliers.
The Coast Guard considered existing relevant international
standards for commercial fishing vessels throughout the development of
this rule. Regulations I/3 of the International Convention for the
Safety of Life at Sea, (SOLAS), exempts fishing vessels. However, in
order to meet the demands of the market place, and in anticipation of
the Coast Guard rulemaking to make Ocean and Limited Service liferafts
obsolete (59 FR 52590; October 18, 1994), manufacturers have almost
entirely shifted their production to SOLAS A and SOLAS B liferafts to
promote manufacturing efficiency. These SOLAS A and SOLAS B liferafts
are the same liferafts required for inspected vessels under Subchapter
W (61 FR 25272; May 20, 1996) and do not exceed the prescribed
international standards for such liferafts.
The Coast Guard also reviewed other international standards
concerning fishing vessels that are proposed but not yet ratified by
the International Maritime Organization. The regulations do not
establish requirements in excess of those found in the Torremolinos
International Convention for the Safety of Fishing Vessels dealing with
the construction and equipment standards, and the International
Convention on Standards of Training, Certification and Watchkeeping for
Fishing Vessels, (STCW-F).
The following discussion summarizes the comments and explains
substantive changes made to the SNPRM in response to the comments.
Comments are categorized by the specific section of the CFR to which
they apply. In addition to these changes, editorial changes have been
made to clarify the rule or standardize terminology. The following
sections have changes that are purely editorial: 28.80(a)(2),
28.120(h), 28.225(3) (i) and (ii), 28.320(b)(1), 28.380(j) and 28.555
(c) and (d).
1. Section 28.50 Definitions. The terms ``Alcohol concentration'',
``Coast Guard Boarding Officer'' and ``District Commander'', although
appearing in 33 CFR 95.010, 33 CFR 177.03 and 46 CFR 1.01-05(b)
respectively, are defined here for the public's clarification and
convenience. The definition of ``Coastline'' found in this section is
taken from 33 CFR 2.05-10, Territorial Sea Baseline. The term
``Especially hazardous condition'' is added as a result of the new
28.65, which addresses termination of unsafe operations. The terms
``Auxiliary Craft'', ``Buoyant Apparatus'', ``Coastal Service Pack'',
``Equipment Pack'', ``Inflatable Liferaft'', ``Inflatable Buoyant
Apparatus'', ``Lifeboat'' and ``Liferaft'' are defined for 28.120, The
terms ``Fishing Vessel Drill Conductor'' and ``Fishing Vessel Safety
Instructor'' have been added due to the new 28.275, which addresses
acceptance criteria for instructors and course curricula.
2. Section 28.60 Exemption Letter. This section addresses
exemptions authorized under section 4506 of the Commercial Fishing
Industry Vessel Safety Act (46 U.S.C. 4501-4508). The Act provides for
exemptions in section 4506(a) when good cause exists for granting an
exemption and when the safety of the vessel and those on board will not
be adversely affected. While Congress provided for exemptions, the
intent was not to reduce the Act's safety equipment and operating
provisions.
The SNPRW would have allowed each District Commander to handle
specific exemption requests under 46 U.S.C. 4506. However, the Coast
Guard determined that many vessels transit between Districts and that
localized exemptions could create confusion and inconsistencies in
granting of the exemption. As a result, exemptions will be granted by
the Commandant, acting through the Chief of the Compliance Office (G-
MOC). However, the exemption requests will be submitted in writing via
the cognizant District Commander.
All requests will be reviewed by the District Commander and
forwarded with the recommendation to Commandant (G-MOC), prior to the
issuance of an exemption. This will allow District Commanders, who are
most familiar with area conditions and hazards, to fully evaluate the
acceptability of a particular exemption request. If granted by
Commandant (G-MOC), the exemption will be accompanied by a letter
specifying the conditions under which the exemption is being issued.
This accompanying letter will have to be kept on board the vessel for
the term of the exemption. Exemptions granted may be rescinded by
Commandant (G-MOC) if it is determined that the safety of the vessel
and those onboard is adversely affected.
Exemptions for a class or fleet of vessels will also be required to
be submitted in writing to the District Commander. If Commandant (G-
MOC) grants an exemption, it will be accompanied by a letter specifying
the terms under which it is issued. This letter, or suitable copy, will
be required to be maintained on each vessel. Any person directly
affected by a decision or action taken under this part may appeal in
accordance with subpart 1.03 of this chapter.
3. Section 28.65 Termination of unsafe operations. This section
contains criteria for the termination of unsafe operations under 46
U.S.C. 4505.
When a Boarding Officer determines that an especially hazardous
condition exists, the official may direct, with the concurrence of the
District Commander, or staff authorized by the District Commander to
handle commercial fishing vessel termination matters, the master or
individual in charge of the vessel to return the vessel to a mooring
until the especially hazardous condition is corrected. Other possible
enforcement options include, but are not limited to, the following:
1. Requiring immediate correction of the hazardous condition.
2. Filing of a Report of Violation against the owner, master, or
individual in charge of the vessel.
3. Referral to the Marine Safety Office or Marine Inspection Office
for investigation and possible suspension and revocation action against
any Coast Guard issued licenses.
The Coast Guard realizes that terminating a commercial fishing
vessel's operations may have a serious economic impact to vessel owners
and employees. However, the safety of individuals on board vessels
should be the highest priority. When an operation is considered to be
life threatening or has the possibility of leading to a serious injury,
immediate cessation of that operation is warranted.
Guidance on terminating operations was published in Navigation and
Vessel Inspection Circular Number 12-91 issued on September 13, 1991.
The Commercial fishing fleet population is estimated to be over 120,000
vessels. In 1993, there were only 130 instances nationwide where
conditions aboard commercial fishing industry vessels warranted the
termination of the vessel's voyage. In 1994, this number decreased to
59 cases.
There were comments suggesting that Coast Guard Boarding Officers
were ill-
[[Page 57270]]
equipped and untrained to adequately determine the stability of a
vessel and that Boarding Officers should not be making termination
decisions without additional training or support. In response to these
concerns, the Coast Guard has determined that no vessel operation
should be terminated without the approval of the cognizant District
Commander or his/her staff authorized to make this determination. Thus,
as a safeguard against any indiscriminate judgment, a Boarding Officer
may not terminate vessel operations independently, but must objectively
assess the vessel's condition and report the facts to his/her superiors
who, in turn, will evaluate the situation surrounding the case and make
the final determinations.
4. Section 28.120 Survival craft. The Coast Guard received 518
comments opposing the proposed survival craft requirements. The main
objection to the carriage of survival craft was that requiring
additional equipment on small vessels might act contrary to the
intended purpose of the Act and could actually create hazards, inhibit
stability, and thus reduce safety on smaller, near shore vessels.
The Coast Guard agrees in part and, therefore, is modifying the
requirements for a buoyant apparatus as a minimum requirement for
vessels 10.97 meters (36 feet) or more in length operating within 12
miles of the coastline. The Coast Guard is also revising its proposed
regulation to exempt all documented or undocumented commercial fishing
industry vessels less than 10.97 meters (36 feet) in length with 3 or
fewer individuals on board operating within 12 miles of the coastline
from having to carry any form of survival craft. Thus, a buoyant
apparatus is required for all documented or undocumented vessels 10.97
meters (36 feet) or more in length with 3 or fewer individuals on board
operating within 12 miles of the coastline.
Several comments misinterpreted the phrase ``less than 4
individuals'' to mean 4 or fewer individuals. To reduce confusion, the
Coast guard has changed the language to reflect that a vessel less than
10.97 meters (36 feet) in length with ``3 or fewer individuals'' on
board is exempt from survival craft carriage.
Other comments opposed the requirement because many individuals
operate ``day boats'' that fish in groups during daylight hours, in
fair weather, and inside the Boundary Line, which are likely to receive
immediate aid from other vessels in an emergency. The Coast Guard
disagrees. Day boat operations may be relatively safe under ideal
conditions; however, in less than ideal weather conditions, the
advantage of day boat operations will be lessened because the proximity
to other vessels may be lost.
5. Section 28.270 Instruction, drills, and safety orientation.
Paragraph (c) of this section is revised to reflect instructor and
training requirements for licensed individuals to meet the requirements
of section 28.275.
6. Section 28.275 Acceptance Criteria for Instructors and course
curricula. This section will require a Fishing Vessel Safety Instructor
to be trained in the proper procedures for conducting the drills
required of federally documented commercial fishing industry vessels
that operate beyond the Boundary Line or with more than 16 individuals
on board. Accepted instructors must meet a minimum Coast Guard standard
of qualification and the course curricula will need to be evaluated for
content and consistency. Requirements for acceptance of safety
instructors and course curricula were published in Navigation and
Vessel Inspection Circular Number 7-93 issued on August 24, 1993.
Several comments urged that the Red Cross, firefighters, police
officers, U.S. Coast Guard Auxiliary and 100 ton Coast Guard license
holders not be certified to conduct the required training. Other
comments urged that safety instructors be required to receive
specialized background and training to teach effectively. The Coast
Guard agrees in part and has limited the scope of the regulations
pertaining to the qualifications for Fishing Vessel Safety Instructors.
Additionally, the Commercial Fishing Industry Vessel Advisory
Committee has determined that a minimum of 8 hours of instruction is
sufficient to fulfill the training requirement. Several comments
indicated that an 18 hour minimum time frame would be a more
appropriate requirement since the increased class time would allow a
broader understanding of the ten contingencies and course content.
However, the main concern is that the course be long enough to instill
confidence, knowledge, and the belief that repetitive drills in the
work place will save lives and enhance emergency preparedness.
Several comments also recommended that individual training
certifications be renewed every 5 years so that trainers will be
required to update materials and knowledge at periodic intervals. The
Coast Guard agrees and has issued letters of acceptance for 5 year
intervals only, ensuring that trainers update their materials and
training in a timely manner.
In order to clarify confusion over the differences between Coast
Guard ``accepted'' and Coast Guard ``approved'' training courses, the
following applies to this Subchapter: ``Accepted'' means that the
course has met the criteria established by the local cognizant Officer
in Charge, Marine Inspection (OCMI), while ``Approved'' means it has
met the criteria established by the Commandant. This rule allows the
OCMIs to accept courses and instructors at the local level without
having to submit the paperwork to the Commandant for approval. Also,
any individual or training institution that utilizes the ``Personal
Survival and Emergency Drills Course'', a national standard curriculum
developed through a cooperative agreement for the U.S. Coast Guard by
the New Jersey Marine Science Consortium, will meet the criteria
established by the Commandant. This document can be ordered at cost
through the United States Marine Safety Association (USMSA), 1900 Arch
Street, Philadelphia, PA 19103-1498, (215) 564-3484, fax (215) 963-
9785.
Although there is no current requirement that drills be logged, the
Coast Guard encourages operators of commercial fishing industry vessels
to log or document all drills and instruction carried out aboard their
vessels.
Organizations are included in the definition of the term ``Fishing
Vessel Safety Instructor.'' The Coast Guard is aware that a large
number of schools employ instructors to teach specific sections of the
curriculum. The term ``organization'' has been added to the definition
of Fishing Vessel Safety Instructor.
An organization providing training must ensure that all persons
responsible for conducting the training collectively have the required
qualifications. Instructors in an organization accepted under a
collective arrangement and limited by their field of expertise (i.e.,
liferaft or firefighting professional) are authorized to conduct only
the applicable portion of the curriculum that is related to their
experience.
Several comments suggested that the rule require in-the-water
practicum. Although survival training in-the-water is highly encouraged
to demonstrate how to use survival equipment, the Coast Guard
understands the potential financial and legal burden if incorporated in
this rule.
Other comments suggested a required hands-on training session for
the use of various safety equipment. However, given the wide variety
and different types of safety equipment available and the expense to
maintain and replace, a
[[Page 57271]]
requirement for hands-on training may prove too restrictive. Training
programs must remain flexible and practical to minimize the resistance
to training. The standards contained in these regulations are
considered minimum standards. However, the Coast Guard encourage the
fishing and training industry to promote hands-on training. Drills can
be simple and cost-effective.
Several comments questioned whether the Fishing Vessel Drill
Conductor or individuals in charge of the vessel should be the master.
The Coast Guard has determined that the Fishing Vessel Drill Conductor
is any individual that has been trained in the proper procedures as
outlined in 28.270.
Several comments questioned whether a one-person operation should
practice the repetitive and required safety drills. The Coast Guard has
determined that because of the benefits derived from safety training,
even one-person operations must be required to undergo training and
drills. Someone other than the vessel operator is permitted to come
aboard the vessel to discuss and undergo drills for the contingencies
listed in the regulations.
Technical Corrections
In response to comments, the following technical corrections are
being made to part 28. These technical clarifications are being made to
improve regulatory consistency.
7. Section 28.80(a)(2). The definition of injury found in part 4 of
this chapter has been changed from ``incapacitated for a period in
excess of 72 hours'', to ``requires professional medical treatment and
renders the individual unfit to perform his/her duties''.
8. Section 28.120(h). The provision of this section requiring
vessels less than 10.97 meters (36 feet) in length to meet ``positive
flotation'' is changed to read ``flotation'' only. The term ``positive
flotation'' is not one of the two flotation standards referenced in 33
CFR 183.
9. Section 28.225(3) (i) and (ii). The National Oceanic and
Atmospheric Administration (NOAA), National Ocean Service (NOS), which
annually publishes the Tide and Tidal Current Predication Tables, is
experiencing a shortage of funds to print and distribute these tables.
Therefore, the wording for these two sections will be changed from tide
and tidal current tables published by NOS, to tide and tidal current
tables promulgated by NOS. Tide and current tables are being printed by
the following companies from original NOS data files: International
Marine Division, McGraw Hill Company, P.O. Box 545, Blacklick, OH
43004-0504 telephone No. 1-800-722-4726 and REED'S Nautical Almanacs,
Thomas Reed Publications, Inc., 13A Lewis Street, Boston, MA 02113,
telephone No. 1-800-995-4995.
10. Section 28.320(b). The unit of conversion to cubic meters was
incorrect for this section. This section is changed to reflect 1200
cubic feet to equal 33.98 cubic meters and 6000 cubic feet to equal
169.92 cubic meters.
11. Section 28.380(j). This section contains both a specific and
general metric conversion of the unit of three feet. For consistency in
this section, a hard conversion of three feet equals 0.9144 meters is
used.
12. Section 28.555 (c) and (d). As an oversight, a limiting factor
was never placed in the formula for freeing ports as was intended. This
section is changed to reflect the formula found in American Bureau of
Shipping Rules for Steel Vessels under 61 meters (200 feet).
Metric (SI) Conversion
The interim rule has been revised to include metric units using the
International System of Units (SI) for all measures with the exception
of Nautical Miles (NM) and Knots. English units immediately follow the
metric conversions in parenthesis throughout the regulations.
Regulatory Assessment
This interim rule is a non-significant regulatory action under 3(f)
of Executive Order 12866 and is non-significant under the Department of
Transportation Regulatory Policies and Procedures (44 FR 11040),
February 26, 1979). It has not been reviewed by the Office of
Management and Budget under that Order. The Coast Guard has prepared a
regulatory assessment and placed it in the rulemaking docket. The
assessment may be inspected and copied at the address listed under
ADDRESSES.
The Coast Guard estimates that the total discounted costs accrued
by industry as a result of this rule will be $9.8 million. The
estimated benefits attributable to this rule are expected to total
$30.95 million annually, or a savings of 11 lives and 10 vessels. When
the benefits are considered over ten years and discounted to 1996, the
resultant cost-benefit ratio is $25 of benefits for each dollar of
cost.
The Coast Guard believes there are over 120,000 commercial fishing
boats. An estimated 90-95 percent of the total number of commercial
fishing industry vessels are independently owned. Commercial fishing
vessels are predominantly operated and owned by small businesses.
Therefore, virtually the entire domestic industry can be said to be
composed of small businesses with total annual revenues estimated to be
over $2.5 billion.
The general provisions of this rule, to include provisions
pertaining to exemption letters and termination of unsafe operations,
are estimated to provide a benefit to industry of approximately $17.45
million.
The cost of these regulations is estimated to be minor with respect
to commercial fishing vessels less than 10.97 meters (36 feet) in
length. Vessels less than 10.97 meters (36 feet) in length will be
exempted from survival craft requirements and incur no costs. However,
if a vessel of this size engages in commercial fishing beyond 12 miles
then it will be required to obtain a buoyant apparatus at an estimated
cost of under $500 with no annual recurring cost. An estimated 20,000
state numbered or documented commercial fishing vessels will be
affected by this rule.
The criteria for training fishing vessel instructors is presently
found in Navigation and Vessel Inspection Circular 7-93 dated August
24, 1993. To implement the training for fishing vessel instructors, it
will cost $25 if an entity (individual or organization) adopts the
National Curriculum. To set up a program with visual aids, a program
could be assembled for a start up cost of between $1,500 and $5,000. It
is estimated that 1,000 entities will provide the training found in
this section, and that 75 percent of these entities currently meet the
requirements of the section.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this rule will have a significant
economic impact on a substantial number of small entities. ``Small
entities'' include independently owned and operated small businesses
that are not dominant in their field and that otherwise qualify as
``small business concerns'' under section 3 of the Small Business Act
(15 U.S.C. 632).
The Coast Guard developed this rule in accordance with the March
29, 1996 amendments to the Regulatory Flexibility Act (enacted as
Chapter 8 of Title 5, U.S. Code), incorporating several provisions
intended to assist small entities. These provisions include allowing
for the use of an existing national standard training curriculum to
meet training requirements, exempting certain vessels from the
regulations completely, and allowing for exemptions to be granted when
good cause exists for an exemption.
The economic impact of these regulations on commercial fishing
[[Page 57272]]
industry vessels 10.97 meters (36 feet) or more in length may be more
significant depending upon the safety equipment already on board these
vessels. A vessel 10.97 meters (36 feet) or more in length operating
within 12 miles of the coastline will incur a capital cost estimated to
be between $400 and $500 with no annual recurring cost. The cost is the
same for part-time and seasonal operators as it is for full-time
operators. Therefore, this rule will not have a significant economic
impact on small entities.
Collection of Information
Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the
Office of Management and Budget (OMB) reviews each proposed rule that
contains a collection-of-information requirement to determine whether
the practical value of the information is worth the burden imposed by
its collection. Collection-of-information requirements include
reporting, recordkeeping, notification, and other, similar
requirements.
This rule contains collection-of-information requirements in the
following sections: Sec. 28.60, Sec. 28.80, Sec. 28.90 and Sec. 28.275.
The following particulars apply:
DOT No: 2115.
OMB Control No: 2115-0582.
Administration: U.S. Coast Guard.
Title: Commercial Fishing Industry Vessel Regulations.
Need for Information: The requirement for letters of exemption is
to provide documentation to boarding officers and to ensure that the
master knows that the vessel is exempt from a particular regulation.
The course curricula and letters of acceptance for instructors are
required to ensure that course content of instructor training is within
the Coast Guard's guidelines.
Proposed Use of Information: To verify compliance with the
regulations and to enhance the safe operation of fishing vessels.
Frequency of Response: On Occasion.
Burden Estimate: 12,530 hours per year.
Respondents: 18,225 Fishing Vessel Operators, Trainers and
Instructors.
Form(s): Not applicable.
Average Burden Hours Per Respondent: .7 Hours per respondent.
Persons are not required to respond to a collection of information
unless it displays a currently valid OMB control number. The Coast
Guard has submitted the requirements to OMB for review under section
3504(h) of the Paperwork Reduction Act for sections Sec. 28.60,
Sec. 28.80, Sec. 28.90, and Sec. 28.275, however, OMB approval has not
been finalized. Individuals and organizations may submit comments by
December 5, 1996 on the information collection requirements in this
interim rule and should direct them to the Executive Secretary, Marine
Safety Council as indicated under ADDRESSES and to the Office of
Information and Regulatory Affairs, OMB, New Executive Office Building,
room 10235, 725 17th Street NW, Washington, DC 20503, Attention: Desk
Officer for DOT. The Coast Guard will publish a notice in the Federal
Register of OMB's decision to approve, modify, or disapprove the
information collection requirements.
Federalism
The Coast Guard has analyzed this rule in accordance with the
principles and criteria contained in Executive Order 12612 and has
determined that this rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
This rule established additional safety standards for commercial
fishing industry vessels. The authority to regulate the safety of
commercial fishing vessels in all navigable waters is committed to the
Coast Guard by statute. Furthermore, since commercial fishing vessels
tend to move from port to port in the national marketplace, safety
standards for commercial fishing vessels should be of national scope to
avoid unreasonably burdensome variances. Therefore, the Coast Guard
intends to preempt State action addressing the same subject matter.
Environment
The Coast Guard considered the environmental impact of this rule
and concluded that under section 2.B.2 of Commandant Instruction
M16475.1B, this rule is categorically excluded from further
environmental documentation. These rules are expected to have no
significant effect on the environment. A Categorical Exclusion
Determination statement has been prepared and has been placed in the
rulemaking docket.
List of Subjects in 46 CFR Part 28
Fire prevention, Fishing vessels, Marine safety, Occupational
safety and health, Reporting and recordkeeping requirements, Seamen.
For the reasons set out in the preamble, the Coast Guard amends
Chapter I, Title 46, Code of Federal Regulations, part 28 as follows:
PART 28--REQUIREMENTS FOR COMMERCIAL FISHING INDUSTRY VESSELS
1. The authority citation for part 28 is revised to read as
follows:
Authority: 46 U.S.C. 3316, 4502, 4505, 4506, 6104, 10603; 49 CFR
1.46.
2. Section 28.50 is amended by adding the following definitions in
alphabetical order to read as follows:
Sec. 28.50 Definition of terms used in this part.
* * * * *
Alcohol concentration means either grams of alcohol per 100
milliliters of blood, or grams of alcohol per 210 liters of breath.
* * * * *
Auxiliary Craft means a vessel that is carried onboard a commercial
fishing vessel and is normally used to support fishing operations.
* * * * *
Buoyant Apparatus means a buoyant apparatus approved by the
Commandant.
Coastal Service Pack means equipment provided in liferafts approved
by the Commandant for coastal service.
* * * * *
Coast Guard Boarding Officer means a commissioned, warrant, or
petty officer of the Coast Guard having authority to board any vessel
under the Act of August 4, 1949, 63 Stat. 502, as amended (14 U.S.C.
89).
* * * * *
Coastline means the Territorial Sea Baseline as defined in 33 CFR
2.05-10.
* * * * *
District Commander means an officer of the Coast Guard designated
as such by the Commandant to command all Coast Guard activities within
a district.
Equipment Packs means equipment provided in liferafts approved by
the Commandant.
Especially hazardous condition means a condition which may be life
threatening or lead to serious injury if continued.
* * * * *
Fishing Vessel Drill Conductor means an individual who meets the
training requirements of 46 CFR 28.270(c) for conducting drills and
providing instruction once a month to each individual on board those
vessels to which Subpart C of this section applies.
Fishing Vessel Safety Instructor means an individual or
organization that has been accepted by the local Officer-in-Charge,
Marine Inspection to train Fishing Vessel Drill Conductors to conduct
drills and provide instruction on those vessels to which subpart C of
this part applies.
* * * * *
Inflatable Buoyant Apparatus means an inflatable buoyant apparatus
approved by the Commandant.
[[Page 57273]]
Inflatable Liferaft means an inflatable liferaft that is approved
by the Commandant.
* * * * *
Lifeboat means a lifeboat approved by the Commandant.
Liferaft means a liferaft approved by the Commandant.
* * * * *
4. Section 28.60 is added to read as follows:
Sec. 28.60 Exemption Letter.
(a) Specific exemption. A commercial fishing industry vessel may be
exempted from certain requirements of this part upon written request if
Commandant (G-MOC) determines:
(1) Good cause exists for granting an exemption; and
(2) The safety of the vessel and those on board will not be
adversely affected.
(b) Class exemption. The Commandant (G-MOC) may issue an exemption
applicable to a class or fleet of vessels. Such an exemption will be in
writing and will specify the terms under which the exemption is
granted.
(c) Exemption procedure. Requests for exemptions must be sent to
the cognizant Coast Guard District Office for review. The District will
forward the exemption letter, along with a District endorsement
recommending a desired course of action to Commandant (G-MOC), who will
then make all final determinations. Upon making a final decision,
Commandant (G-MOC) will forward the decision to the cognizant District
Office for distribution to the party or parties requesting the
exemption.
(d) Exemption letter. Exemption letters, or suitable copies,
describing the terms under which the exemption is granted shall be
maintained at all times on board each vessel to which any exemption
applies.
(e) Right of appeal. Any person directly affected by a decision or
action taken under this part may appeal in accordance with Sec. 1.03 of
this chapter.
(f) Rescinding an exemption letter. Exemptions granted may be
rescinded by Commandant (G-MOC) if it is subsequently determined that
the safety of the vessel and those onboard is adversely affected.
5. Section 28.65 is added to read as follows:
Sec. 28.65 Termination of unsafe operations.
(a) A Coast Guard Boarding Officer may direct the master or
individual in charge of a vessel, with the concurrence of the District
Commander, or staff authorized by the District Commander, to
immediately take reasonable steps necessary for the safety of
individuals on board the vessel if the Boarding Officer observes the
vessel being operated in an unsafe manner and determines that an
especially hazardous condition exists. This may include directing the
master or individual in charge of the vessel to return the vessel to a
mooring and remain there until the situation creating the especially
hazardous condition is corrected or other specific action is taken.
(b) Hazardous conditions include, but are not limited to, operation
with--
(1) An insufficient number of lifesaving equipment on board, to
include serviceable Personal Flotation Devices (PFDs), serviceable
immersion suits, or adequate survival craft capacity.
(2) An inoperable Emergency Position Indicating Radio Beacon
(EPIRB) or radio communication equipment when required by regulation.
There should be at least one operable means of communicating distress.
When both are required, then at least one must be in operable condition
to avoid termination of the voyage;
(3) Inadequate firefighting equipment on board;
(4) Excessive volatile fuel (gasoline or solvents) or volatile fuel
vapors in bilges;
(5) Instability resulting from overloading, improper loading or
lack of freeboard;
(6) Inoperable bilge system;
(7) Intoxication of the master or individual in charge of a
commercial fishing vessel. An individual is intoxicated when he/she is
operating a commercial fishing vessel and has an alcohol concentration
of .04 percent, or the intoxicant's effect on the person's manner,
disposition, speech, muscular movement, general appearance or behavior
is apparent by observation;
(8) A lack of adequate operable navigation lights during periods of
reduced visibility;
(9) Watertight closures missing or inoperable;
(10) Flooding or uncontrolled leakage in any space; or
(11) An expired endorsed Load Line Certificate, when required.
(c) A Coast Guard Boarding Officer may direct the individual in
charge of a fish processing vessel that does not have on board a Load
Line Certificate issued by the American Bureau of Shipping or a
similarly qualified organization to return the vessel to a mooring and
to remain there until the vessel obtains such a certificate.
6. In 28.80, paragraph (a)(2) and paragraph (d)(1) are revised to
read as follows:
(a) * * *
(2) An injury that requires professional medical treatment
(treatment beyond first aid) and that renders the individual unfit to
perform his or her routine duties.
* * * * *
(d) * * *
(1) Marine Index Bureau, Inc., 67 Scotch Road, Ewing, NJ, 08628-
2504.
* * * * *
7. Section 28.120 is revised to read as follows:
Sec. 28.120 Survival craft.
(a) Except as provided in paragraphs (b) through (h) of this
section and 28.305, each vessel must carry the survival craft specified
in Table 28.120(a), Table 28.120(b), or Table 28.120(c), as appropriate
for the vessel, in an aggregate capacity to accommodate the total
number of individuals on board.
(b) The requirements of this section do not apply to vessels less
than 10.97 meters (36 feet) in length with 3 or fewer individuals on
board which operate within 12 miles of the coastline.
(c) A buoyant apparatus may be substituted instead of the
requirements in this section for vessels 10.97 meters (36 feet) or more
in length with 3 or fewer individuals on board which operate within 12
miles of the coastline.
(d) Each survival craft installed on board a vessel before
September 15, 1991, may continue to be used to meet the requirements of
this section provided the survival craft is--
(1) Of the same type as required in Tables 28.120(a), 28.120(b), or
28.120(c), as appropriate for the vessel type; and
(2) Maintained in good and serviceable condition.
(e) Each inflatable liferaft installed on board a vessel before
September 15, 1991, may continue to be used to meet the requirements
for an approved inflatable liferaft, provided the existing liferaft
is--
(1) Maintained in good and serviceable condition as required by
Table 28.140; and
(2) Equipped with the equipment pack required by Tables 28.120(a),
28.120(b), or 28.120(c), as appropriate for the vessel type. Where no
equipment pack is specified in Tables 28.120(a), 28.120(b), or
28.120(c), a coastal service pack is the minimum required.
(f) A lifeboat 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.
(g) The capacity of an auxiliary craft carried on board a vessel
that is integral to and necessary for normal fishing
[[Page 57274]]
operations will satisfy the requirements of this section for survival
craft, except for an inflatable liferaft, provided the craft is readily
accessible during an emergency and is capable of safely holding all
individuals on board the vessel. If the auxiliary craft is equipped
with a Coast Guard required capacity plate, the boat must not be loaded
so as to exceed the rated capacity.
(h) A vessel less than 10.97 meters (36 feet) in length that meets
the flotation provisions of 33 CFR part 183 is exempt from the
requirement for survival craft in paragraph (a) of this section for
operation on--
(1) Any waters within 12 miles of the coastline.
(2) Rivers.
Table 28.120(a).--Survival Craft for Documented Vessels
------------------------------------------------------------------------
Survival craft
Area Vessel type required
------------------------------------------------------------------------
Beyond 50 miles of coastline.... All............... Inflatable
liferaft with
SOLAS A pack.
Between 20-50 miles of All............... Inflatable
coastline, cold waters. liferaft with
SOLAS B pack.
Between 20-50 miles of All............... Inflatable
coastline, warm waters. liferaft.
Beyond Boundary Line, between 12- All............... Inflatable
20 miles of coastline, cold liferaft.
waters.
Beyond Boundary Line, within 12 10.97 meters (36 Inflatable buoyant
miles of coastline, cold waters. feet) or more in apparatus. See
length. note 2.
Beyond Boundary Line, within 12 Less than 10.97 Byoyant apparatus.
miles of coastline, cold waters. meters (36 feet) See note 2.
in length.
Beyond Boundary Line, within 20 All............... Life float.
miles of coastline, warm waters.
Inside Boundary Line, cold 10.97 meters (36 Inflatable buoyant
waters; or Lakes, bays, sounds, feet) or more in apparatus.
cold waters; or Rivers, cold length.
waters.
Inside Boundary Line, cold Less than 10.97 Buoyant apparatus.
waters; or Lakes, bays, sounds, meters (36 feet) See note 2.
cold waters; or Rivers, cold in length.
waters.
Inside Boundary Line, warm All............... None.
waters; or Lakes, bays, sounds,
warm waters; or Rivers, warm
waters.
Great Lakes, cold waters........ 10.97 meters (36 Inflatable buoyant
feet) or more in apparatus.
length. See note 2.
Great Lakes, cold waters........ Less than 10.97 Buoyant apparatus.
meters (36 feet) See note 2.
in length.
Great Lakes, beyond 3 miles of All............... Buoyant apparatus.
coastline, warm waters.
Great Lakes, within 3 miles of All............... None.
coastline, warm waters.
------------------------------------------------------------------------
Note: 1. The hierarchy of survival craft in descending order is
lifeboat, liferaft with SOLAS A pack, inflatable liferaft with SOLAS A
pack, liferaft with SOLAS B pack, inflatable liferaft with SOLAS B
pack, inflatable liferaft with coastal service pack, inflatable
buoyant apparatus, life float, buoyant apparatus. A survival craft
higher in the hierarchy may be substituted for any survival craft
required in this table.
2. If a vessel carriers 3 or fewer individuals within 12 miles of the
coastline, see Sec. 28.120 (b) and (c) for carriage substitution.
Table 28.120(b).--Survival Craft for Undocumented Vessels With Not More
Than 16 Individuals on Board
------------------------------------------------------------------------
Survival craft
Area Vessel type required
------------------------------------------------------------------------
Beyond 20 miles of coastline.... All............... Inflatable buoyant
apparatus.
Beyond Boundary Line, between 12- All............... Inflatable buoyant
20 miles of coastline, cold apparatus.
waters.
Beyond Boundary Line, within 12 10.97 meters (36 Buoyant apparatus.
miles of coastline, cold waters. feet) or more in
length.
Beyond Boundary Line, within 12 Less than 10.97 Buoyant apparatus.
miles of coastline, cold waters. meters (36 feet) See note 2.
in length.
Beyond Boundary Line, within 20 All............... Life float.
miles of coastline, warm waters.
Inside Boundary Line, cold 10.97 meters (36 Buoyant apparatus.
waters; or Lakes, bays, sounds, feet) or more in
cold waters; or rivers, cold length.
water.
Inside Boundary Line, cold Less than 10.97 Buoyant apparatus
waters; or Lakes, bays, sounds, meters (36 feet) See note 2.
cold waters; or Rivers, cold in length.
water.
Inside Boundary Line, warm All............... None.
waters; or Lakes, bays, sounds,
warm waters; or Rivers, warm
waters.
Great Lakes, cold waters........ All............... Buoyant apparatus.
See note 2.
Great Lakes, beyond 3 miles of All............... Buoyant apparatus.
coastline warm waters. See note 2.
Great Lakes, within 3 miles of All............... None.
coastline warm waters.
------------------------------------------------------------------------
Note: 1. The hierarchy of survival craft in descending order is
lifeboat, liferaft with SOLAS A pack, inflatable liferaft with SOLAS A
pack, liferaft with SOLAS B pack, inflatable liferaft with SOLAS B
pack, inflatable liferaft with coastal service pack, inflatable
buoyant apparatus, life float, buoyant apparatus. A survival craft
higher in the hierarchy may be substituted for any survival craft
required in this table.
2. If a vessel carries 3 or fewer individuals within 12 miles of the
coastline, see Sec. 28.120 (b) and (c) for carriage substitution.
Table 28.120(c).--Survival Craft for Undocumented Vessels With More Than
16 Individuals on Board
------------------------------------------------------------------------
Survival craft
Area Vessel type required
------------------------------------------------------------------------
Beyond 50 miles of coastline.... All............... Inflatable
liferaft with
Solas A pack.
[[Page 57275]]
Between 20-50 miles of All............... Inflatable
coastline, cold waters. liferaft with
SOLAS B pack.
Between 20-50 miles of All............... Inflatable
coastline, warm waters. liferaft.
Beyond Boundary Line, between 12- All............... Inflatable
20 miles of coastline, cold liferaft.
waters.
Beyond Boundary Line, within 12 10.97 meters (36 Inflatable bouyant
miles of coastline, cold waters. feet) or more in apparatus. See
length. note 2.
Beyond Boundary Line, within 12 Less than 10.97 Buoyant apparatus.
miles of coastline, cold waters. meters (36 feet) See note 2.
in length.
Beyond Boundary Line, within 20 All............... Life float.
miles of coastline, warm waters.
Inside Boundary Line, cold 10.97 meters (36 Inflatable buoyant
waters; or Lakes, bays, sounds, feet) or more in apparatus.
cold waters; or Rivers, cold length. See Note 2.
waters.
Inside Boundary Line, cold Less than 10.97 Buoyant apparatus.
waters; or Lakes, bays, sounds, meters (36 feet) See Note 2.
cold waters; or Rivers, cold in length.
waters.
Inside Boundary Line, warm All............... None.
waters; or Lakes, bays, sounds,
warm waters; or Rivers, warm
waters.
Great Lakes, cold waters........ 10.97 meters (36 Inflatable buoyant
feet) or more in apparatus. See
length. note 2.
Great Lakes, cold waters........ Less than 10.97 Buoyant apparatus.
meters (36 feet) See note 2.
in length.
Great Lakes, beyond 3 miles of All............... Buoyant apparatus.
coastline warm waters. See note 2.
Great Lakes, within 3 miles of All............... None.
coastline warm waters.
------------------------------------------------------------------------
Note: 1. The hierarchy of survival craft in descending order is
lifeboat, liferaft with SOLAS A pack, Inflatable liferaft with SOLAS A
pack, liferaft with SOLAS B pack, Inflatable liferaft with SOLAS B
pack, Inflatable liferaft with coastal service pack, inflatable
buoyant apparatus, life float, buoyant apparatus. A survival craft
higher in the hierarchy may be substituted for any survival craft
required in this table.
2. If a vessel carries 3 or fewer individuals within 12 miles of the
coastline, see Sec. 28.120 (b) and (c) for carriage substitution.
8. In Sec. 28.225, paragraphs (a)(3)(i) and (a)(3)(ii) are revised
to read as follows:
Sec. 28.225 Navigational information.
(a) * * *
(b) * * *
(i) Tide tables promulgated by the National Ocean Service; and
(ii) Tidal current tables promulgated by the National Ocean
Service, or river current publication issued by the U.S. Corps of
Engineers or a river authority.
* * * * *
9. In section 28.270, paragraph (c) is revised to read as follows:
Sec. 28.270 Instructions, drills, and safety orientation.
* * * * *
(c) Training. No individual may conduct the drills or provide the
instructions required by this section unless that individual has been
trained in the proper procedures for conducting the activity. An
individual licensed for operation of inspected vessels of 100 gross
tons or more will need to comply with the requirements in Sec. 28.275.
* * * * *
10. Section 28.275 is added to read as follows:
Sec. 28.275 Acceptance criteria for instructors and course curricula.
(a) A Fishing Vessel Safety Instructor shall submit a detailed
course curriculum that relates directly to the contingencies listed in
Sec. 28.270(a), or a letter certifying the use of the ``Personal
Survival and Emergency Drills Course,'' a national standard curriculum,
to the cognizant OCMI. This document can be ordered through the United
States Marine Safety Association (USMSA), 1900 Arch Street,
Philadelphia, PA 19103-1498. For the criteria of Fishing Vessel Safety
Instructor, the following documentation shall be provided to the
cognizant OCMI:
(1) Proof of at least 1 year of experience in a marine related
field and experience that relates directly to the contingencies listed
in Sec. 28.270(a) including--
(i) Experience as an instructor; or
(ii) Training received in instructional methods; or
(2) A valid merchant mariner's license issued by the Coast Guard
authorizing service as a master of inspected vessels of 100 gross tons
or more, or master of uninspected fishing industry vessels and proof of
experience that relates directly to the contingencies listed in 46 CFR
28.270(a) including--
(i) Experience as an instructor; or
(ii) Training received in instructional methods.
(b) Each OCMI will issue a letter of acceptance to all qualified
individuals and will maintain a list of accepted instructors in his/her
zone.
(c) Letters of acceptance shall be valid for a period of 5 years.
(d) Fishing Vessel Safety Instructors or the organization providing
training shall issue documents to Fishing Vessel Drill Conductors upon
successful completion of all required training.
11. Section 28.320 paragraph (b) is revised to read as follows:
Sec. 28.320 Fixed gas fire extinguishing systems.
* * * * *
(b) System types and alternatives.
(1) A pre-engineered fixed gas fire extinguishing system may be
installed only in a normally unoccupied machinery space, paint locker,
or space containing flammable liquid stores that has a gross volume of
not more than 33.98 cubic meters (1200 cubic feet).
(2) A fixed gas fire extinguishing system that is capable of
automatic discharge upon heat detection may be installed only in a
normally unoccupied space with a gross volume of not more that 169.92
cubic meters (6000 cubic feet).
(3) A space with a gross volume exceeding 169.92 cubic meters (6000
cubic feet) must be fitted with a manually actuated and alarmed fixed
gas fire extinguishing system.
12. In Sec. 28.380, paragraph (j) is revised to read as follows:
Sec. 28.380 General structural fire protection.
* * * * *
(j) Cooking areas. Vertical or horizontal surfaces within 0.9144
[[Page 57276]]
meters (3 feet) of cooking appliances must be composed of
noncombustible material or covered by noncombustible material.
Curtains, draperies, or free hanging fabrics are not permitted within
0.9144 meters (3 feet) of cooking appliances.
13. In Sec. 28.555, paragraphs (c) and (d) are revised to read as
follows:
Sec. 28.555 Freeing ports.
* * * * *
(c) Except as provided by paragraphs (d) through (h) of this
section, the aggregate clear area of freeing ports on each side of the
vessel must not be less than 0.71 plus 0.035 times the length of the
bulwark, in meters, for area in square meters, or 7.6 plus 0.115 times
the length of the bulwark, in feet, for the area in square feet. The
length of bulwark need not exceed 0.7 times the overall length of the
vessel.
(d) Except as provided in paragraphs (e) through (h) of this
section, for bulwarks which exceed 20.11 meters (66 feet) in length,
the aggregate clear area of freeing ports on each side of the vessel
must not be less than 0.07 times the length of the bulwark, in meters,
for an area in square meters (0.23 times the length of the bulwark in
feet, for an area in square feet). The length of the bulwark need not
exceed 0.7 times the overall length of the vessel.
* * * * *
Dated: October 16, 1995.
J.C. Card,
Rear Admiral, U.S. Coast Guard Chief, Marine Safety and Environmental
Protection.
[FR Doc. 96-28406 Filed 11-4-96; 8:45 am]
BILLING CODE 4910-14-M
