Inspection of Towing Vessels

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.

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

§ 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

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

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 § 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 § 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

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 § 1.03-55 to address comments on the appeals process for a company whose certificate is rescinded. See section IV.H below. Our proposed § 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

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 § 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, § 15.820(a)(3) does not apply to a towing vessel when it is operating on Western Rivers, a term also defined in § 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 § 155.710(e)(1). We also see value in uniform requirments for inspected vessels conducting the same activities. We note, however, that existing § 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 § 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

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 § 15.535 after § 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 § 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 § 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 § 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 § 15.535 does not include vessels engaged in assistance towing. Further, we revised paragraph (a) to more clearly state which vessels are subject to § 15.535, to specify the vessels not subject to subchapter M that must meet requirements § 15.535(b), and to note that all towing vessels subject to § 15.535 must also meet requirements in § 15.535(c). Finally, we inserted clarifying edits and paragraph headings in § 15.535 to make it easier to read and understand, and in both §§ 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 § 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 § 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 § 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 § 15.535(c). Another commenter said the language should be the same as that used in § 15.610(b).

The Coast Guard agrees with these comments and has changed the text in § 15.535(c) to match the current text of § 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 § 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 § 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 § 15.535 and language in the STCW Supplemental NPRM that proposed to amend § 15.610.

As noted above, the STCW final rule has been published, and we have amended the text in § 15.535(c) to match the current § 15.610(b). There was a slight variation in wording between § 15.535(c) as originally proposed and § 15.610(b).

Further, our proposed § 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 § 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 § 15.535 to conform to the current version of § 15.610.

Also, because we added § 15.535 to address vessels subject to subchapter M, we inserted a paragraph at the beginning of § 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 § 15.610. We made necessary organizational changes to § 15.610 to reflect our insertion of this new paragraph.

An individual recommended that in addition to the towing vessel being

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 § 15.535 and requirements in § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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

geographic area on a short run limited to approximately 30 minutes away from the dock. Also, we have reviewed our lifebuoy requirements in § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 136.105(a)(3) to include “maneuvering a tank barge on and off of a drydock or

cleaning dock” to the “intermittent towing” covered in the worksite; and others recommended that we amend our “excepted vessel” definition in § 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 § 136.105(a)(3) covers the activity the commenter requests we add. Also, our definition of “excepted vessel” in § 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 § 136.230 the OCMI may consider

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 § 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 § 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 §§ 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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

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 § 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 § 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 § 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 § 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 § 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 § 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

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 § 136.105(a)(2)(i) or with “recreational assist.” Also a company pointed to the need to improve our definition of “excepted vessel” in § 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 § 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 §§ 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 § 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, § 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 § 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 § 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

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 § 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 §§ 143.300 and 143.435.

Our proposed definition of “independent” in § 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 § 136.110 where it would have been applicable to all of subchapter M and have placed it in part 143's definition section, § 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 § 136.110, and §§ 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 § 136.110 definitions, we have inserted the introductory text of “As used in this subchapter” in § 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.

”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 § 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 § 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 § 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 § 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

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 § 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 § 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 § 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 § 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 § 140.420 suggests, then we should define “rescue boat” in § 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 § 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 § 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 § 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.

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 § 136.110, as well as with respect to the Coast Guard option under proposed § 136.150 and the TSMS option under proposed § 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 § 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 § 136.110 is more focused on systems set up to ensure that compliance. Neither proposed § 136.150, Annual and periodic inspections, nor proposed § 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 §§ 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 §§ 136.140 and 136.145, however, we reorganized these requirements and moved then into subpart B, Certificate of Inspection, as §§ 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, §§ 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 § 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 § 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 § 140.625, “the movement of a towing vessel and its tow”). Reflecting this definition, in § 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 § 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 § 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

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 § 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 § 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 § 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 §§ 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 § 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 §§ 136.140 and 136.145 into subpart B of part 136—Certificate of Inspection—as amended § 136.210 and

new § 136.212. Also, we merged proposed §§ 136.150 and 136.165 into a new § 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 § 136.170 as new § 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 § 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 § 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 § 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 § 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 § 136.200, we decided to insert a reference to the COI phase-in period in proposed § 136.170 (now § 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 § 136.225, because it was redundant with § 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 § 136.170, Compliance for the Coast Guard option, as § 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 § 136.203 because it is no longer needed given our amendment to what is now § 136.202.

We received several comments on the phase-in process in proposed § 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 § 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 § 136.203, which had a separate timetable for those selecting the TSMS option. The phased approach in § 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,

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 § 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 § 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 § 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 § 136.140, Application for a Certificate of Inspection (COI), is incorporated into amended § 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 § 136.130(d), the application should indicate which option the owner or managing operator is selecting.

We amended § 136.210 to make it clear how and when to apply for the initial COI. In our proposed § 136.140, we specified deadlines for renewing a COI, but not those for obtaining the initial COI. Our amended § 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 § 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 § 136.145(b), now redesignated as § 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 § 136.145. Two companies suggested that frequency and level of inspection should be accomplished on a risk basis.

In this final rule, § 136.145 was renamed § 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 §§ 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 § 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.

We received several comments on proposed § 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 § 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 § 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 § 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 § 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 § 136.210(b)(5) (redesignated as § 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 § 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 § 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 § 138.305.

Commenters noted that proposed § 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 § 136.220 we provide the alternative of keeping the COI readily available onboard in a weathertight container. Our § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 136.110.

Proposed § 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 § 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

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 § 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 § 136.240.

We received one comment that recommended changing “another port” to “next port of call,” in § 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 § 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 § 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 § 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 § 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 § 136.205, a COI indicates that minimum number of persons, not the maximum.

The Coast Guard notes that § 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 § 136.205 to include “total persons allowed onboard.” Separately, and upon reviewing proposed § 136.205 and a similar description in 46 CFR 2.01-5, we amended § 136.205 to improve its description of a COI's listing of safety equipment and appliances required to be onboard. Also, in further reviewing § 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 § 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 § 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 § 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 § 136.250 to make it clearer that it applies to all towing vessels on the Great Lakes, and also reorganized § 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 § 136.110 apply to the part. We also deleted proposed § 137.115 because the substance of this provision is contained in § 136.210.

We received two comments on proposed § 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 § 137.120, thereby ensuring the person at the top is fully aware of the vessel's conditional status.

The Coast Guard concurs that § 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.

Under § 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 § 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 § 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 §§ 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 §§ 137.205 and 137.210. We also defined these terms in § 136.110 and added a reference to them in § 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 § 136.150(a)(4), which we have reorganized into § 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 § 136.150(a)(2) (now § 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”: §§ 137.200(d), 137.300(b), and 137.335(a)(1).

We define the term “deficiency” in § 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 § 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 § 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 § 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 § 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 § 137.205 must be conducted, we amended § 136.110 by adding a definition of “anniversary date” tied to the expiration date of the COI or TSMS certificate and we amended § 137.205(a)(3) by referring to the COI's anniversary date. We also amended other sections that referenced

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 § 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 § 138.225 to such vessels being deemed in com

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