Commercial Fishing Industry Vessel Regulations

SUMMARY: This interim rule adopts requirements for safety equipment and

vessel operating procedures on commercial fishing industry vessels. The

Coast Guard is issuing these regulations to improve the overall safety

of U.S. Commercial Fishing Industry Vessels pursuant to the Commercial

Fishing Industry Vessel Safety Act of 1988 and to make several

technical corrections.

DATES: This interim rule is effective on February 3, 1997, except for

Sec. 28.120 on survival craft which is effective May 5, 1997. Written

comments must be received on or before December 20, 1996.

ADDRESSES: Unless otherwise indicated, documents referred to in this

preamble are available for inspection or copying at the office of the

Executive Secretary, Marine Safety Council (G-LRA/3406), U.S. Coast

Guard Headquarters, 2100 Second Street SW., room 3406, Washington, DC

20593-0001 between 8 a.m. and 3 p.m., Monday through Friday, except

Federal holidays. The telephone number is (202) 267-1477.

FOR FURTHER INFORMATION CONTACT: Commander Mark D. Bobal, Project

Manager, G-MSO-2, telephone (202) 267-0836.

SUPPLEMENTARY INFORMATION:

Request for Comments

The Coast Guard encourages interested persons to participate in

this rulemaking by submitting written data, views or arguments. Persons

submitting comments should include their names and addresses, identify

this rulemaking (CGD 88-079a) and the specific section of this rule to

which each comment applies, and give the reason for each comment.

Please submit two copies of all comments and attachments in an unbound

format, no larger than 8 by 11 inches, suitable for copying and

electronic filing. Persons desiring an acknowledgment that their

comments were received should include a self-addressed stamped postcard

or envelope.

The Coast Guard plans no public meetings. Persons may request a

public meeting by writing to the Marine Safety Council at the address

under ADDRESSES. The request should include the reasons why a hearing

would be beneficial. If local presentations will aid this rulemaking,

the Coast Guard will hold a public meeting at a time and place

announced by a later notice in the Federal Register.

Background and Regulatory History

Commercial Fishing Industry Vessel Safety Act of 1988

On September 9, 1988, title 46, United States Code, was amended in

chapter 45 (Uninspected Commercial Fishing Industry Vessels, sections

4501 through 4508) by the Commercial Fishing Industry Vessel Safety Act

of 1988, Pub. L. 100-424 (``the Act''). The Act requires the Secretary

of Transportation to prescribe regulations for safety equipment and

vessel operating procedures on commercial fishing industry vessels. The

Secretary further delegated the authority to regulate commercial

fishing vessel to the Commandant of the Coast Guard. This rulemaking

was initiated to implement certain provisions of the Act. This

rulemaking project does not include requirements pertaining to

immersion suits (found in CGD 88-079c, Notice of Proposed Rulemaking

dated May 20, 1993) or vessel stability; these provisions will be

included in future rulemaking.

Advance Notice of Proposed Rulemaking (ANPRM)

An ANPRM was published in the Federal Register on December 29, 1988

(53 FR 52735), addressing potential requirements for uninspected

fishing, fish processing, and fish tender vessels. In response to this

ANPRM, nearly 200 comment letters were received and considered in

developing the Notice of Proposed Rulemaking.

Notice of Proposed Rulemaking (NPRM)

On April 19, 1990, the Coast Guard published a NPRM in the Federal

Register (55 FR 14924), addressing proposed requirements for

uninspected fishing, fish processing, and fish tender vessels. In

response to the NPRM, the Coast Guard received 500 comments. On August

14, 1991, in order to expedite the regulation package for commercial

fishing industry vessels, the Coast Guard published a final rule.

Final Rule (FR)

A final rule entitled ``Commercial Fishing Industry Vessel

Regulations'' was published in the Federal Register (56 FR 40364).

These regulations are for U.S. documented or state numbered uninspected

fishing, fish processing and fish tender vessel to implement provision

of the Commercial Fishing Industry Vessel Safety Act of 1988. The final

rule indicated that the below listed controversial topics would be the

subject of a subsequent supplemental notice of proposed rulemaking

(SNPRM).

Supplemental Notice of Proposed Rulemaking (SNPRM)

On October 27, 1992, the Coast Guard published a SNPRM in the

Federal Register (57 FR 48670). The controversial topics addressed in

the SNPRM included the Aleutian Trade Act of 1990 (Pub. L. 101-595);

stability for fishing vessels less than 79 feet in length;

administration of exemptions authorized by 46 U.S.C. 4506; termination

of unsafe operations; requirements for survival craft on fishing

vessels with 3 or fewer individuals on board operating within 12 miles

of the coastline and outside the boundary line; and acceptance criteria

for instructors and course curricula.

This interim rule adopts the SNPRM with some changes. It does not

include the provisions relating to the Aleutian Trade Act, and

stability for fishing vessels less than 79 feet in length.

On October 24, 1995, the Coast Guard published a final rule

relating only to the Aleutian Trade Act (60 FR 54441).

Currently, the Coast Guard is working with the Commercial Fishing

Industry Vessel Advisory Committee to finalize the stability section

for vessels less than 79 feet in length which was included in the

SNPRM. The Coast Guard received comments that this section was too

confusing, too costly, and did not address the real causes of vessel

losses. The comments suggested that the majority of problems

encountered by commercial fishing vessels were not caused by

instability, but by uncontrolled flooding which then resulted in vessel

instability. Therefore, the stability section of the SNPRM is being

held in abeyance until further notice.

Discussion of Comments and Changes

In response to the SNPRM, the Coast Guard received 794 comments

during the 120-day comment period. The major concern expressed during

the comment period pertained to proposed survival craft requirements.

Over 400 comments were opposed to the proposed requirements. The Coast

Guard received 326 comments opposing the stability criteria as written,

while only five comments supported the stability

[[Page 57269]]

criteria. Other letters expressed agreement or comment on the other

topics.

Of those comments for which the source could be positively

identified, 464 were from commercial fishermen, 63 from companies

directly related to the fishing industry, 62 from the general public,

50 from organizations or associations representing groups of

individuals such as fishermen or vessel owners who are involved in the

fishing industry, 28 from manufacturers of safety equipment to which

this chapter applies, and 18 from naval architects. Several comments

were received from shipyards, government agencies, insurers of

commercial fishing vessels, and equipment suppliers.

The Coast Guard considered existing relevant international

standards for commercial fishing vessels throughout the development of

this rule. Regulations I/3 of the International Convention for the

Safety of Life at Sea, (SOLAS), exempts fishing vessels. However, in

order to meet the demands of the market place, and in anticipation of

the Coast Guard rulemaking to make Ocean and Limited Service liferafts

obsolete (59 FR 52590; October 18, 1994), manufacturers have almost

entirely shifted their production to SOLAS A and SOLAS B liferafts to

promote manufacturing efficiency. These SOLAS A and SOLAS B liferafts

are the same liferafts required for inspected vessels under Subchapter

W (61 FR 25272; May 20, 1996) and do not exceed the prescribed

international standards for such liferafts.

The Coast Guard also reviewed other international standards

concerning fishing vessels that are proposed but not yet ratified by

the International Maritime Organization. The regulations do not

establish requirements in excess of those found in the Torremolinos

International Convention for the Safety of Fishing Vessels dealing with

the construction and equipment standards, and the International

Convention on Standards of Training, Certification and Watchkeeping for

Fishing Vessels, (STCW-F).

The following discussion summarizes the comments and explains

substantive changes made to the SNPRM in response to the comments.

Comments are categorized by the specific section of the CFR to which

they apply. In addition to these changes, editorial changes have been

made to clarify the rule or standardize terminology. The following

sections have changes that are purely editorial: 28.80(a)(2),

28.120(h), 28.225(3) (i) and (ii), 28.320(b)(1), 28.380(j) and 28.555

(c) and (d).

1. Section 28.50 Definitions. The terms ``Alcohol concentration'',

``Coast Guard Boarding Officer'' and ``District Commander'', although

appearing in 33 CFR 95.010, 33 CFR 177.03 and 46 CFR 1.01-05(b)

respectively, are defined here for the public's clarification and

convenience. The definition of ``Coastline'' found in this section is

taken from 33 CFR 2.05-10, Territorial Sea Baseline. The term

``Especially hazardous condition'' is added as a result of the new

28.65, which addresses termination of unsafe operations. The terms

``Auxiliary Craft'', ``Buoyant Apparatus'', ``Coastal Service Pack'',

``Equipment Pack'', ``Inflatable Liferaft'', ``Inflatable Buoyant

Apparatus'', ``Lifeboat'' and ``Liferaft'' are defined for 28.120, The

terms ``Fishing Vessel Drill Conductor'' and ``Fishing Vessel Safety

Instructor'' have been added due to the new 28.275, which addresses

acceptance criteria for instructors and course curricula.

2. Section 28.60 Exemption Letter. This section addresses

exemptions authorized under section 4506 of the Commercial Fishing

Industry Vessel Safety Act (46 U.S.C. 4501-4508). The Act provides for

exemptions in section 4506(a) when good cause exists for granting an

exemption and when the safety of the vessel and those on board will not

be adversely affected. While Congress provided for exemptions, the

intent was not to reduce the Act's safety equipment and operating

provisions.

The SNPRW would have allowed each District Commander to handle

specific exemption requests under 46 U.S.C. 4506. However, the Coast

Guard determined that many vessels transit between Districts and that

localized exemptions could create confusion and inconsistencies in

granting of the exemption. As a result, exemptions will be granted by

the Commandant, acting through the Chief of the Compliance Office (G-

MOC). However, the exemption requests will be submitted in writing via

the cognizant District Commander.

All requests will be reviewed by the District Commander and

forwarded with the recommendation to Commandant (G-MOC), prior to the

issuance of an exemption. This will allow District Commanders, who are

most familiar with area conditions and hazards, to fully evaluate the

acceptability of a particular exemption request. If granted by

Commandant (G-MOC), the exemption will be accompanied by a letter

specifying the conditions under which the exemption is being issued.

This accompanying letter will have to be kept on board the vessel for

the term of the exemption. Exemptions granted may be rescinded by

Commandant (G-MOC) if it is determined that the safety of the vessel

and those onboard is adversely affected.

Exemptions for a class or fleet of vessels will also be required to

be submitted in writing to the District Commander. If Commandant (G-

MOC) grants an exemption, it will be accompanied by a letter specifying

the terms under which it is issued. This letter, or suitable copy, will

be required to be maintained on each vessel. Any person directly

affected by a decision or action taken under this part may appeal in

accordance with subpart 1.03 of this chapter.

3. Section 28.65 Termination of unsafe operations. This section

contains criteria for the termination of unsafe operations under 46

U.S.C. 4505.

When a Boarding Officer determines that an especially hazardous

condition exists, the official may direct, with the concurrence of the

District Commander, or staff authorized by the District Commander to

handle commercial fishing vessel termination matters, the master or

individual in charge of the vessel to return the vessel to a mooring

until the especially hazardous condition is corrected. Other possible

enforcement options include, but are not limited to, the following:

1. Requiring immediate correction of the hazardous condition.

2. Filing of a Report of Violation against the owner, master, or

individual in charge of the vessel.

3. Referral to the Marine Safety Office or Marine Inspection Office

for investigation and possible suspension and revocation action against

any Coast Guard issued licenses.

The Coast Guard realizes that terminating a commercial fishing

vessel's operations may have a serious economic impact to vessel owners

and employees. However, the safety of individuals on board vessels

should be the highest priority. When an operation is considered to be

life threatening or has the possibility of leading to a serious injury,

immediate cessation of that operation is warranted.

Guidance on terminating operations was published in Navigation and

Vessel Inspection Circular Number 12-91 issued on September 13, 1991.

The Commercial fishing fleet population is estimated to be over 120,000

vessels. In 1993, there were only 130 instances nationwide where

conditions aboard commercial fishing industry vessels warranted the

termination of the vessel's voyage. In 1994, this number decreased to

59 cases.

There were comments suggesting that Coast Guard Boarding Officers

were ill-

[[Page 57270]]

equipped and untrained to adequately determine the stability of a

vessel and that Boarding Officers should not be making termination

decisions without additional training or support. In response to these

concerns, the Coast Guard has determined that no vessel operation

should be terminated without the approval of the cognizant District

Commander or his/her staff authorized to make this determination. Thus,

as a safeguard against any indiscriminate judgment, a Boarding Officer

may not terminate vessel operations independently, but must objectively

assess the vessel's condition and report the facts to his/her superiors

who, in turn, will evaluate the situation surrounding the case and make

the final determinations.

4. Section 28.120 Survival craft. The Coast Guard received 518

comments opposing the proposed survival craft requirements. The main

objection to the carriage of survival craft was that requiring

additional equipment on small vessels might act contrary to the

intended purpose of the Act and could actually create hazards, inhibit

stability, and thus reduce safety on smaller, near shore vessels.

The Coast Guard agrees in part and, therefore, is modifying the

requirements for a buoyant apparatus as a minimum requirement for

vessels 10.97 meters (36 feet) or more in length operating within 12

miles of the coastline. The Coast Guard is also revising its proposed

regulation to exempt all documented or undocumented commercial fishing

industry vessels less than 10.97 meters (36 feet) in length with 3 or

fewer individuals on board operating within 12 miles of the coastline

from having to carry any form of survival craft. Thus, a buoyant

apparatus is required for all documented or undocumented vessels 10.97

meters (36 feet) or more in length with 3 or fewer individuals on board

operating within 12 miles of the coastline.

Several comments misinterpreted the phrase ``less than 4

individuals'' to mean 4 or fewer individuals. To reduce confusion, the

Coast guard has changed the language to reflect that a vessel less than

10.97 meters (36 feet) in length with ``3 or fewer individuals'' on

board is exempt from survival craft carriage.

Other comments opposed the requirement because many individuals

operate ``day boats'' that fish in groups during daylight hours, in

fair weather, and inside the Boundary Line, which are likely to receive

immediate aid from other vessels in an emergency. The Coast Guard

disagrees. Day boat operations may be relatively safe under ideal

conditions; however, in less than ideal weather conditions, the

advantage of day boat operations will be lessened because the proximity

to other vessels may be lost.

5. Section 28.270 Instruction, drills, and safety orientation.

Paragraph (c) of this section is revised to reflect instructor and

training requirements for licensed individuals to meet the requirements

of section 28.275.

6. Section 28.275 Acceptance Criteria for Instructors and course

curricula. This section will require a Fishing Vessel Safety Instructor

to be trained in the proper procedures for conducting the drills

required of federally documented commercial fishing industry vessels

that operate beyond the Boundary Line or with more than 16 individuals

on board. Accepted instructors must meet a minimum Coast Guard standard

of qualification and the course curricula will need to be evaluated for

content and consistency. Requirements for acceptance of safety

instructors and course curricula were published in Navigation and

Vessel Inspection Circular Number 7-93 issued on August 24, 1993.

Several comments urged that the Red Cross, firefighters, police

officers, U.S. Coast Guard Auxiliary and 100 ton Coast Guard license

holders not be certified to conduct the required training. Other

comments urged that safety instructors be required to receive

specialized background and training to teach effectively. The Coast

Guard agrees in part and has limited the scope of the regulations

pertaining to the qualifications for Fishing Vessel Safety Instructors.

Additionally, the Commercial Fishing Industry Vessel Advisory

Committee has determined that a minimum of 8 hours of instruction is

sufficient to fulfill the training requirement. Several comments

indicated that an 18 hour minimum time frame would be a more

appropriate requirement since the increased class time would allow a

broader understanding of the ten contingencies and course content.

However, the main concern is that the course be long enough to instill

confidence, knowledge, and the belief that repetitive drills in the

work place will save lives and enhance emergency preparedness.

Several comments also recommended that individual training

certifications be renewed every 5 years so that trainers will be

required to update materials and knowledge at periodic intervals. The

Coast Guard agrees and has issued letters of acceptance for 5 year

intervals only, ensuring that trainers update their materials and

training in a timely manner.

In order to clarify confusion over the differences between Coast

Guard ``accepted'' and Coast Guard ``approved'' training courses, the

following applies to this Subchapter: ``Accepted'' means that the

course has met the criteria established by the local cognizant Officer

in Charge, Marine Inspection (OCMI), while ``Approved'' means it has

met the criteria established by the Commandant. This rule allows the

OCMIs to accept courses and instructors at the local level without

having to submit the paperwork to the Commandant for approval. Also,

any individual or training institution that utilizes the ``Personal

Survival and Emergency Drills Course'', a national standard curriculum

developed through a cooperative agreement for the U.S. Coast Guard by

the New Jersey Marine Science Consortium, will meet the criteria

established by the Commandant. This document can be ordered at cost

through the United States Marine Safety Association (USMSA), 1900 Arch

Street, Philadelphia, PA 19103-1498, (215) 564-3484, fax (215) 963-

9785.

Although there is no current requirement that drills be logged, the

Coast Guard encourages operators of commercial fishing industry vessels

to log or document all drills and instruction carried out aboard their

vessels.

Organizations are included in the definition of the term ``Fishing

Vessel Safety Instructor.'' The Coast Guard is aware that a large

number of schools employ instructors to teach specific sections of the

curriculum. The term ``organization'' has been added to the definition

of Fishing Vessel Safety Instructor.

An organization providing training must ensure that all persons

responsible for conducting the training collectively have the required

qualifications. Instructors in an organization accepted under a

collective arrangement and limited by their field of expertise (i.e.,

liferaft or firefighting professional) are authorized to conduct only

the applicable portion of the curriculum that is related to their

experience.

Several comments suggested that the rule require in-the-water

practicum. Although survival training in-the-water is highly encouraged

to demonstrate how to use survival equipment, the Coast Guard

understands the potential financial and legal burden if incorporated in

this rule.

Other comments suggested a required hands-on training session for

the use of various safety equipment. However, given the wide variety

and different types of safety equipment available and the expense to

maintain and replace, a

[[Page 57271]]

requirement for hands-on training may prove too restrictive. Training

programs must remain flexible and practical to minimize the resistance

to training. The standards contained in these regulations are

considered minimum standards. However, the Coast Guard encourage the

fishing and training industry to promote hands-on training. Drills can

be simple and cost-effective.

Several comments questioned whether the Fishing Vessel Drill

Conductor or individuals in charge of the vessel should be the master.

The Coast Guard has determined that the Fishing Vessel Drill Conductor

is any individual that has been trained in the proper procedures as

outlined in 28.270.

Several comments questioned whether a one-person operation should

practice the repetitive and required safety drills. The Coast Guard has

determined that because of the benefits derived from safety training,

even one-person operations must be required to undergo training and

drills. Someone other than the vessel operator is permitted to come

aboard the vessel to discuss and undergo drills for the contingencies

listed in the regulations.

Technical Corrections

In response to comments, the following technical corrections are

being made to part 28. These technical clarifications are being made to

improve regulatory consistency.

7. Section 28.80(a)(2). The definition of injury found in part 4 of

this chapter has been changed from ``incapacitated for a period in

excess of 72 hours'', to ``requires professional medical treatment and

renders the individual unfit to perform his/her duties''.

8. Section 28.120(h). The provision of this section requiring

vessels less than 10.97 meters (36 feet) in length to meet ``positive

flotation'' is changed to read ``flotation'' only. The term ``positive

flotation'' is not one of the two flotation standards referenced in 33

CFR 183.

9. Section 28.225(3) (i) and (ii). The National Oceanic and

Atmospheric Administration (NOAA), National Ocean Service (NOS), which

annually publishes the Tide and Tidal Current Predication Tables, is

experiencing a shortage of funds to print and distribute these tables.

Therefore, the wording for these two sections will be changed from tide

and tidal current tables published by NOS, to tide and tidal current

tables promulgated by NOS. Tide and current tables are being printed by

the following companies from original NOS data files: International

Marine Division, McGraw Hill Company, P.O. Box 545, Blacklick, OH

43004-0504 telephone No. 1-800-722-4726 and REED'S Nautical Almanacs,

Thomas Reed Publications, Inc., 13A Lewis Street, Boston, MA 02113,

telephone No. 1-800-995-4995.

10. Section 28.320(b). The unit of conversion to cubic meters was

incorrect for this section. This section is changed to reflect 1200

cubic feet to equal 33.98 cubic meters and 6000 cubic feet to equal

169.92 cubic meters.

11. Section 28.380(j). This section contains both a specific and

general metric conversion of the unit of three feet. For consistency in

this section, a hard conversion of three feet equals 0.9144 meters is

used.

12. Section 28.555 (c) and (d). As an oversight, a limiting factor

was never placed in the formula for freeing ports as was intended. This

section is changed to reflect the formula found in American Bureau of

Shipping Rules for Steel Vessels under 61 meters (200 feet).

Metric (SI) Conversion

The interim rule has been revised to include metric units using the

International System of Units (SI) for all measures with the exception

of Nautical Miles (NM) and Knots. English units immediately follow the

metric conversions in parenthesis throughout the regulations.

Regulatory Assessment

This interim rule is a non-significant regulatory action under 3(f)

of Executive Order 12866 and is non-significant under the Department of

Transportation Regulatory Policies and Procedures (44 FR 11040),

February 26, 1979). It has not been reviewed by the Office of

Management and Budget under that Order. The Coast Guard has prepared a

regulatory assessment and placed it in the rulemaking docket. The

assessment may be inspected and copied at the address listed under

ADDRESSES.

The Coast Guard estimates that the total discounted costs accrued

by industry as a result of this rule will be $9.8 million. The

estimated benefits attributable to this rule are expected to total

$30.95 million annually, or a savings of 11 lives and 10 vessels. When

the benefits are considered over ten years and discounted to 1996, the

resultant cost-benefit ratio is $25 of benefits for each dollar of

cost.

The Coast Guard believes there are over 120,000 commercial fishing

boats. An estimated 90-95 percent of the total number of commercial

fishing industry vessels are independently owned. Commercial fishing

vessels are predominantly operated and owned by small businesses.

Therefore, virtually the entire domestic industry can be said to be

composed of small businesses with total annual revenues estimated to be

over $2.5 billion.

The general provisions of this rule, to include provisions

pertaining to exemption letters and termination of unsafe operations,

are estimated to provide a benefit to industry of approximately $17.45

million.

The cost of these regulations is estimated to be minor with respect

to commercial fishing vessels less than 10.97 meters (36 feet) in

length. Vessels less than 10.97 meters (36 feet) in length will be

exempted from survival craft requirements and incur no costs. However,

if a vessel of this size engages in commercial fishing beyond 12 miles

then it will be required to obtain a buoyant apparatus at an estimated

cost of under $500 with no annual recurring cost. An estimated 20,000

state numbered or documented commercial fishing vessels will be

affected by this rule.

The criteria for training fishing vessel instructors is presently

found in Navigation and Vessel Inspection Circular 7-93 dated August

24, 1993. To implement the training for fishing vessel instructors, it

will cost $25 if an entity (individual or organization) adopts the

National Curriculum. To set up a program with visual aids, a program

could be assembled for a start up cost of between $1,500 and $5,000. It

is estimated that 1,000 entities will provide the training found in

this section, and that 75 percent of these entities currently meet the

requirements of the section.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the

Coast Guard must consider whether this rule will have a significant

economic impact on a substantial number of small entities. ``Small

entities'' include independently owned and operated small businesses

that are not dominant in their field and that otherwise qualify as

``small business concerns'' under section 3 of the Small Business Act

(15 U.S.C. 632).

The Coast Guard developed this rule in accordance with the March

29, 1996 amendments to the Regulatory Flexibility Act (enacted as

Chapter 8 of Title 5, U.S. Code), incorporating several provisions

intended to assist small entities. These provisions include allowing

for the use of an existing national standard training curriculum to

meet training requirements, exempting certain vessels from the

regulations completely, and allowing for exemptions to be granted when

good cause exists for an exemption.

The economic impact of these regulations on commercial fishing

[[Page 57272]]

industry vessels 10.97 meters (36 feet) or more in length may be more

significant depending upon the safety equipment already on board these

vessels. A vessel 10.97 meters (36 feet) or more in length operating

within 12 miles of the coastline will incur a capital cost estimated to

be between $400 and $500 with no annual recurring cost. The cost is the

same for part-time and seasonal operators as it is for full-time

operators. Therefore, this rule will not have a significant economic

impact on small entities.

Collection of Information

Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the

Office of Management and Budget (OMB) reviews each proposed rule that

contains a collection-of-information requirement to determine whether

the practical value of the information is worth the burden imposed by

its collection. Collection-of-information requirements include

reporting, recordkeeping, notification, and other, similar

requirements.

This rule contains collection-of-information requirements in the

following sections: Sec. 28.60, Sec. 28.80, Sec. 28.90 and Sec. 28.275.

The following particulars apply:

DOT No: 2115.

OMB Control No: 2115-0582.

Administration: U.S. Coast Guard.

Title: Commercial Fishing Industry Vessel Regulations.

Need for Information: The requirement for letters of exemption is

to provide documentation to boarding officers and to ensure that the

master knows that the vessel is exempt from a particular regulation.

The course curricula and letters of acceptance for instructors are

required to ensure that course content of instructor training is within

the Coast Guard's guidelines.

Proposed Use of Information: To verify compliance with the

regulations and to enhance the safe operation of fishing vessels.

Frequency of Response: On Occasion.

Burden Estimate: 12,530 hours per year.

Respondents: 18,225 Fishing Vessel Operators, Trainers and

Instructors.

Form(s): Not applicable.

Average Burden Hours Per Respondent: .7 Hours per respondent.

Persons are not required to respond to a collection of information

unless it displays a currently valid OMB control number. The Coast

Guard has submitted the requirements to OMB for review under section

3504(h) of the Paperwork Reduction Act for sections Sec. 28.60,

Sec. 28.80, Sec. 28.90, and Sec. 28.275, however, OMB approval has not

been finalized. Individuals and organizations may submit comments by

December 5, 1996 on the information collection requirements in this

interim rule and should direct them to the Executive Secretary, Marine

Safety Council as indicated under ADDRESSES and to the Office of

Information and Regulatory Affairs, OMB, New Executive Office Building,

room 10235, 725 17th Street NW, Washington, DC 20503, Attention: Desk

Officer for DOT. The Coast Guard will publish a notice in the Federal

Register of OMB's decision to approve, modify, or disapprove the

information collection requirements.

Federalism

The Coast Guard has analyzed this rule in accordance with the

principles and criteria contained in Executive Order 12612 and has

determined that this rule does not have sufficient federalism

implications to warrant the preparation of a Federalism Assessment.

This rule established additional safety standards for commercial

fishing industry vessels. The authority to regulate the safety of

commercial fishing vessels in all navigable waters is committed to the

Coast Guard by statute. Furthermore, since commercial fishing vessels

tend to move from port to port in the national marketplace, safety

standards for commercial fishing vessels should be of national scope to

avoid unreasonably burdensome variances. Therefore, the Coast Guard

intends to preempt State action addressing the same subject matter.

Environment

The Coast Guard considered the environmental impact of this rule

and concluded that under section 2.B.2 of Commandant Instruction

M16475.1B, this rule is categorically excluded from further

environmental documentation. These rules are expected to have no

significant effect on the environment. A Categorical Exclusion

Determination statement has been prepared and has been placed in the

rulemaking docket.

List of Subjects in 46 CFR Part 28

Fire prevention, Fishing vessels, Marine safety, Occupational

safety and health, Reporting and recordkeeping requirements, Seamen.

For the reasons set out in the preamble, the Coast Guard amends

Chapter I, Title 46, Code of Federal Regulations, part 28 as follows:

PART 28--REQUIREMENTS FOR COMMERCIAL FISHING INDUSTRY VESSELS

1. The authority citation for part 28 is revised to read as

follows:

Authority: 46 U.S.C. 3316, 4502, 4505, 4506, 6104, 10603; 49 CFR

1.46.

2. Section 28.50 is amended by adding the following definitions in

alphabetical order to read as follows:

Sec. 28.50 Definition of terms used in this part.

* * * * *

Alcohol concentration means either grams of alcohol per 100

milliliters of blood, or grams of alcohol per 210 liters of breath.

* * * * *

Auxiliary Craft means a vessel that is carried onboard a commercial

fishing vessel and is normally used to support fishing operations.

* * * * *

Buoyant Apparatus means a buoyant apparatus approved by the

Commandant.

Coastal Service Pack means equipment provided in liferafts approved

by the Commandant for coastal service.

* * * * *

Coast Guard Boarding Officer means a commissioned, warrant, or

petty officer of the Coast Guard having authority to board any vessel

under the Act of August 4, 1949, 63 Stat. 502, as amended (14 U.S.C.

89).

* * * * *

Coastline means the Territorial Sea Baseline as defined in 33 CFR

2.05-10.

* * * * *

District Commander means an officer of the Coast Guard designated

as such by the Commandant to command all Coast Guard activities within

a district.

Equipment Packs means equipment provided in liferafts approved by

the Commandant.

Especially hazardous condition means a condition which may be life

threatening or lead to serious injury if continued.

* * * * *

Fishing Vessel Drill Conductor means an individual who meets the

training requirements of 46 CFR 28.270(c) for conducting drills and

providing instruction once a month to each individual on board those

vessels to which Subpart C of this section applies.

Fishing Vessel Safety Instructor means an individual or

organization that has been accepted by the local Officer-in-Charge,

Marine Inspection to train Fishing Vessel Drill Conductors to conduct

drills and provide instruction on those vessels to which subpart C of

this part applies.

* * * * *

Inflatable Buoyant Apparatus means an inflatable buoyant apparatus

approved by the Commandant.

[[Page 57273]]

Inflatable Liferaft means an inflatable liferaft that is approved

by the Commandant.

* * * * *

Lifeboat means a lifeboat approved by the Commandant.

Liferaft means a liferaft approved by the Commandant.

* * * * *

4. Section 28.60 is added to read as follows:

Sec. 28.60 Exemption Letter.

(a) Specific exemption. A commercial fishing industry vessel may be

exempted from certain requirements of this part upon written request if

Commandant (G-MOC) determines:

(1) Good cause exists for granting an exemption; and

(2) The safety of the vessel and those on board will not be

adversely affected.

(b) Class exemption. The Commandant (G-MOC) may issue an exemption

applicable to a class or fleet of vessels. Such an exemption will be in

writing and will specify the terms under which the exemption is

granted.

(c) Exemption procedure. Requests for exemptions must be sent to

the cognizant Coast Guard District Office for review. The District will

forward the exemption letter, along with a District endorsement

recommending a desired course of action to Commandant (G-MOC), who will

then make all final determinations. Upon making a final decision,

Commandant (G-MOC) will forward the decision to the cognizant District

Office for distribution to the party or parties requesting the

exemption.

(d) Exemption letter. Exemption letters, or suitable copies,

describing the terms under which the exemption is granted shall be

maintained at all times on board each vessel to which any exemption

applies.

(e) Right of appeal. Any person directly affected by a decision or

action taken under this part may appeal in accordance with Sec. 1.03 of

this chapter.

(f) Rescinding an exemption letter. Exemptions granted may be

rescinded by Commandant (G-MOC) if it is subsequently determined that

the safety of the vessel and those onboard is adversely affected.

5. Section 28.65 is added to read as follows:

Sec. 28.65 Termination of unsafe operations.

(a) A Coast Guard Boarding Officer may direct the master or

individual in charge of a vessel, with the concurrence of the District

Commander, or staff authorized by the District Commander, to

immediately take reasonable steps necessary for the safety of

individuals on board the vessel if the Boarding Officer observes the

vessel being operated in an unsafe manner and determines that an

especially hazardous condition exists. This may include directing the

master or individual in charge of the vessel to return the vessel to a

mooring and remain there until the situation creating the especially

hazardous condition is corrected or other specific action is taken.

(b) Hazardous conditions include, but are not limited to, operation

with--

(1) An insufficient number of lifesaving equipment on board, to

include serviceable Personal Flotation Devices (PFDs), serviceable

immersion suits, or adequate survival craft capacity.

(2) An inoperable Emergency Position Indicating Radio Beacon

(EPIRB) or radio communication equipment when required by regulation.

There should be at least one operable means of communicating distress.

When both are required, then at least one must be in operable condition

to avoid termination of the voyage;

(3) Inadequate firefighting equipment on board;

(4) Excessive volatile fuel (gasoline or solvents) or volatile fuel

vapors in bilges;

(5) Instability resulting from overloading, improper loading or

lack of freeboard;

(6) Inoperable bilge system;

(7) Intoxication of the master or individual in charge of a

commercial fishing vessel. An individual is intoxicated when he/she is

operating a commercial fishing vessel and has an alcohol concentration

of .04 percent, or the intoxicant's effect on the person's manner,

disposition, speech, muscular movement, general appearance or behavior

is apparent by observation;

(8) A lack of adequate operable navigation lights during periods of

reduced visibility;

(9) Watertight closures missing or inoperable;

(10) Flooding or uncontrolled leakage in any space; or

(11) An expired endorsed Load Line Certificate, when required.

(c) A Coast Guard Boarding Officer may direct the individual in

charge of a fish processing vessel that does not have on board a Load

Line Certificate issued by the American Bureau of Shipping or a

similarly qualified organization to return the vessel to a mooring and

to remain there until the vessel obtains such a certificate.

6. In 28.80, paragraph (a)(2) and paragraph (d)(1) are revised to

read as follows:

(a) * * *

(2) An injury that requires professional medical treatment

(treatment beyond first aid) and that renders the individual unfit to

perform his or her routine duties.

* * * * *

(d) * * *

(1) Marine Index Bureau, Inc., 67 Scotch Road, Ewing, NJ, 08628-

2504.

* * * * *

7. Section 28.120 is revised to read as follows:

Sec. 28.120 Survival craft.

(a) Except as provided in paragraphs (b) through (h) of this

section and 28.305, each vessel must carry the survival craft specified

in Table 28.120(a), Table 28.120(b), or Table 28.120(c), as appropriate

for the vessel, in an aggregate capacity to accommodate the total

number of individuals on board.

(b) The requirements of this section do not apply to vessels less

than 10.97 meters (36 feet) in length with 3 or fewer individuals on

board which operate within 12 miles of the coastline.

(c) A buoyant apparatus may be substituted instead of the

requirements in this section for vessels 10.97 meters (36 feet) or more

in length with 3 or fewer individuals on board which operate within 12

miles of the coastline.

(d) Each survival craft installed on board a vessel before

September 15, 1991, may continue to be used to meet the requirements of

this section provided the survival craft is--

(1) Of the same type as required in Tables 28.120(a), 28.120(b), or

28.120(c), as appropriate for the vessel type; and

(2) Maintained in good and serviceable condition.

(e) Each inflatable liferaft installed on board a vessel before

September 15, 1991, may continue to be used to meet the requirements

for an approved inflatable liferaft, provided the existing liferaft

is--

(1) Maintained in good and serviceable condition as required by

Table 28.140; and

(2) Equipped with the equipment pack required by Tables 28.120(a),

28.120(b), or 28.120(c), as appropriate for the vessel type. Where no

equipment pack is specified in Tables 28.120(a), 28.120(b), or

28.120(c), a coastal service pack is the minimum required.

(f) A lifeboat may be substituted for any survival craft required

by this section, provided it is arranged and equipped in accordance

with part 199 of this chapter.

(g) The capacity of an auxiliary craft carried on board a vessel

that is integral to and necessary for normal fishing

[[Page 57274]]

operations will satisfy the requirements of this section for survival

craft, except for an inflatable liferaft, provided the craft is readily

accessible during an emergency and is capable of safely holding all

individuals on board the vessel. If the auxiliary craft is equipped

with a Coast Guard required capacity plate, the boat must not be loaded

so as to exceed the rated capacity.

(h) A vessel less than 10.97 meters (36 feet) in length that meets

the flotation provisions of 33 CFR part 183 is exempt from the

requirement for survival craft in paragraph (a) of this section for

operation on--

(1) Any waters within 12 miles of the coastline.

(2) Rivers.

Table 28.120(a).--Survival Craft for Documented Vessels

------------------------------------------------------------------------

Survival craft

Area Vessel type required

------------------------------------------------------------------------

Beyond 50 miles of coastline.... All............... Inflatable

liferaft with

SOLAS A pack.

Between 20-50 miles of All............... Inflatable

coastline, cold waters. liferaft with

SOLAS B pack.

Between 20-50 miles of All............... Inflatable

coastline, warm waters. liferaft.

Beyond Boundary Line, between 12- All............... Inflatable

20 miles of coastline, cold liferaft.

waters.

Beyond Boundary Line, within 12 10.97 meters (36 Inflatable buoyant

miles of coastline, cold waters. feet) or more in apparatus. See

length. note 2.

Beyond Boundary Line, within 12 Less than 10.97 Byoyant apparatus.

miles of coastline, cold waters. meters (36 feet) See note 2.

in length.

Beyond Boundary Line, within 20 All............... Life float.

miles of coastline, warm waters.

Inside Boundary Line, cold 10.97 meters (36 Inflatable buoyant

waters; or Lakes, bays, sounds, feet) or more in apparatus.

cold waters; or Rivers, cold length.

waters.

Inside Boundary Line, cold Less than 10.97 Buoyant apparatus.

waters; or Lakes, bays, sounds, meters (36 feet) See note 2.

cold waters; or Rivers, cold in length.

waters.

Inside Boundary Line, warm All............... None.

waters; or Lakes, bays, sounds,

warm waters; or Rivers, warm

waters.

Great Lakes, cold waters........ 10.97 meters (36 Inflatable buoyant

feet) or more in apparatus.

length. See note 2.

Great Lakes, cold waters........ Less than 10.97 Buoyant apparatus.

meters (36 feet) See note 2.

in length.

Great Lakes, beyond 3 miles of All............... Buoyant apparatus.

coastline, warm waters.

Great Lakes, within 3 miles of All............... None.

coastline, warm waters.

------------------------------------------------------------------------

Note: 1. The hierarchy of survival craft in descending order is

lifeboat, liferaft with SOLAS A pack, inflatable liferaft with SOLAS A

pack, liferaft with SOLAS B pack, inflatable liferaft with SOLAS B

pack, inflatable liferaft with coastal service pack, inflatable

buoyant apparatus, life float, buoyant apparatus. A survival craft

higher in the hierarchy may be substituted for any survival craft

required in this table.

2. If a vessel carriers 3 or fewer individuals within 12 miles of the

coastline, see Sec. 28.120 (b) and (c) for carriage substitution.

Table 28.120(b).--Survival Craft for Undocumented Vessels With Not More

Than 16 Individuals on Board

------------------------------------------------------------------------

Survival craft

Area Vessel type required

------------------------------------------------------------------------

Beyond 20 miles of coastline.... All............... Inflatable buoyant

apparatus.

Beyond Boundary Line, between 12- All............... Inflatable buoyant

20 miles of coastline, cold apparatus.

waters.

Beyond Boundary Line, within 12 10.97 meters (36 Buoyant apparatus.

miles of coastline, cold waters. feet) or more in

length.

Beyond Boundary Line, within 12 Less than 10.97 Buoyant apparatus.

miles of coastline, cold waters. meters (36 feet) See note 2.

in length.

Beyond Boundary Line, within 20 All............... Life float.

miles of coastline, warm waters.

Inside Boundary Line, cold 10.97 meters (36 Buoyant apparatus.

waters; or Lakes, bays, sounds, feet) or more in

cold waters; or rivers, cold length.

water.

Inside Boundary Line, cold Less than 10.97 Buoyant apparatus

waters; or Lakes, bays, sounds, meters (36 feet) See note 2.

cold waters; or Rivers, cold in length.

water.

Inside Boundary Line, warm All............... None.

waters; or Lakes, bays, sounds,

warm waters; or Rivers, warm

waters.

Great Lakes, cold waters........ All............... Buoyant apparatus.

See note 2.

Great Lakes, beyond 3 miles of All............... Buoyant apparatus.

coastline warm waters. See note 2.

Great Lakes, within 3 miles of All............... None.

coastline warm waters.

------------------------------------------------------------------------

Note: 1. The hierarchy of survival craft in descending order is

lifeboat, liferaft with SOLAS A pack, inflatable liferaft with SOLAS A

pack, liferaft with SOLAS B pack, inflatable liferaft with SOLAS B

pack, inflatable liferaft with coastal service pack, inflatable

buoyant apparatus, life float, buoyant apparatus. A survival craft

higher in the hierarchy may be substituted for any survival craft

required in this table.

2. If a vessel carries 3 or fewer individuals within 12 miles of the

coastline, see Sec. 28.120 (b) and (c) for carriage substitution.

Table 28.120(c).--Survival Craft for Undocumented Vessels With More Than

16 Individuals on Board

------------------------------------------------------------------------

Survival craft

Area Vessel type required

------------------------------------------------------------------------

Beyond 50 miles of coastline.... All............... Inflatable

liferaft with

Solas A pack.

[[Page 57275]]

Between 20-50 miles of All............... Inflatable

coastline, cold waters. liferaft with

SOLAS B pack.

Between 20-50 miles of All............... Inflatable

coastline, warm waters. liferaft.

Beyond Boundary Line, between 12- All............... Inflatable

20 miles of coastline, cold liferaft.

waters.

Beyond Boundary Line, within 12 10.97 meters (36 Inflatable bouyant

miles of coastline, cold waters. feet) or more in apparatus. See

length. note 2.

Beyond Boundary Line, within 12 Less than 10.97 Buoyant apparatus.

miles of coastline, cold waters. meters (36 feet) See note 2.

in length.

Beyond Boundary Line, within 20 All............... Life float.

miles of coastline, warm waters.

Inside Boundary Line, cold 10.97 meters (36 Inflatable buoyant

waters; or Lakes, bays, sounds, feet) or more in apparatus.

cold waters; or Rivers, cold length. See Note 2.

waters.

Inside Boundary Line, cold Less than 10.97 Buoyant apparatus.

waters; or Lakes, bays, sounds, meters (36 feet) See Note 2.

cold waters; or Rivers, cold in length.

waters.

Inside Boundary Line, warm All............... None.

waters; or Lakes, bays, sounds,

warm waters; or Rivers, warm

waters.

Great Lakes, cold waters........ 10.97 meters (36 Inflatable buoyant

feet) or more in apparatus. See

length. note 2.

Great Lakes, cold waters........ Less than 10.97 Buoyant apparatus.

meters (36 feet) See note 2.

in length.

Great Lakes, beyond 3 miles of All............... Buoyant apparatus.

coastline warm waters. See note 2.

Great Lakes, within 3 miles of All............... None.

coastline warm waters.

------------------------------------------------------------------------

Note: 1. The hierarchy of survival craft in descending order is

lifeboat, liferaft with SOLAS A pack, Inflatable liferaft with SOLAS A

pack, liferaft with SOLAS B pack, Inflatable liferaft with SOLAS B

pack, Inflatable liferaft with coastal service pack, inflatable

buoyant apparatus, life float, buoyant apparatus. A survival craft

higher in the hierarchy may be substituted for any survival craft

required in this table.

2. If a vessel carries 3 or fewer individuals within 12 miles of the

coastline, see Sec. 28.120 (b) and (c) for carriage substitution.

8. In Sec. 28.225, paragraphs (a)(3)(i) and (a)(3)(ii) are revised

to read as follows:

Sec. 28.225 Navigational information.

(a) * * *

(b) * * *

(i) Tide tables promulgated by the National Ocean Service; and

(ii) Tidal current tables promulgated by the National Ocean

Service, or river current publication issued by the U.S. Corps of

Engineers or a river authority.

* * * * *

9. In section 28.270, paragraph (c) is revised to read as follows:

Sec. 28.270 Instructions, drills, and safety orientation.

* * * * *

(c) Training. No individual may conduct the drills or provide the

instructions required by this section unless that individual has been

trained in the proper procedures for conducting the activity. An

individual licensed for operation of inspected vessels of 100 gross

tons or more will need to comply with the requirements in Sec. 28.275.

* * * * *

10. Section 28.275 is added to read as follows:

Sec. 28.275 Acceptance criteria for instructors and course curricula.

(a) A Fishing Vessel Safety Instructor shall submit a detailed

course curriculum that relates directly to the contingencies listed in

Sec. 28.270(a), or a letter certifying the use of the ``Personal

Survival and Emergency Drills Course,'' a national standard curriculum,

to the cognizant OCMI. This document can be ordered through the United

States Marine Safety Association (USMSA), 1900 Arch Street,

Philadelphia, PA 19103-1498. For the criteria of Fishing Vessel Safety

Instructor, the following documentation shall be provided to the

cognizant OCMI:

(1) Proof of at least 1 year of experience in a marine related

field and experience that relates directly to the contingencies listed

in Sec. 28.270(a) including--

(i) Experience as an instructor; or

(ii) Training received in instructional methods; or

(2) A valid merchant mariner's license issued by the Coast Guard

authorizing service as a master of inspected vessels of 100 gross tons

or more, or master of uninspected fishing industry vessels and proof of

experience that relates directly to the contingencies listed in 46 CFR

28.270(a) including--

(i) Experience as an instructor; or

(ii) Training received in instructional methods.

(b) Each OCMI will issue a letter of acceptance to all qualified

individuals and will maintain a list of accepted instructors in his/her

zone.

(c) Letters of acceptance shall be valid for a period of 5 years.

(d) Fishing Vessel Safety Instructors or the organization providing

training shall issue documents to Fishing Vessel Drill Conductors upon

successful completion of all required training.

11. Section 28.320 paragraph (b) is revised to read as follows:

Sec. 28.320 Fixed gas fire extinguishing systems.

* * * * *

(b) System types and alternatives.

(1) A pre-engineered fixed gas fire extinguishing system may be

installed only in a normally unoccupied machinery space, paint locker,

or space containing flammable liquid stores that has a gross volume of

not more than 33.98 cubic meters (1200 cubic feet).

(2) A fixed gas fire extinguishing system that is capable of

automatic discharge upon heat detection may be installed only in a

normally unoccupied space with a gross volume of not more that 169.92

cubic meters (6000 cubic feet).

(3) A space with a gross volume exceeding 169.92 cubic meters (6000

cubic feet) must be fitted with a manually actuated and alarmed fixed

gas fire extinguishing system.

12. In Sec. 28.380, paragraph (j) is revised to read as follows:

Sec. 28.380 General structural fire protection.

* * * * *

(j) Cooking areas. Vertical or horizontal surfaces within 0.9144

[[Page 57276]]

meters (3 feet) of cooking appliances must be composed of

noncombustible material or covered by noncombustible material.

Curtains, draperies, or free hanging fabrics are not permitted within

0.9144 meters (3 feet) of cooking appliances.

13. In Sec. 28.555, paragraphs (c) and (d) are revised to read as

follows:

Sec. 28.555 Freeing ports.

* * * * *

(c) Except as provided by paragraphs (d) through (h) of this

section, the aggregate clear area of freeing ports on each side of the

vessel must not be less than 0.71 plus 0.035 times the length of the

bulwark, in meters, for area in square meters, or 7.6 plus 0.115 times

the length of the bulwark, in feet, for the area in square feet. The

length of bulwark need not exceed 0.7 times the overall length of the

vessel.

(d) Except as provided in paragraphs (e) through (h) of this

section, for bulwarks which exceed 20.11 meters (66 feet) in length,

the aggregate clear area of freeing ports on each side of the vessel

must not be less than 0.07 times the length of the bulwark, in meters,

for an area in square meters (0.23 times the length of the bulwark in

feet, for an area in square feet). The length of the bulwark need not

exceed 0.7 times the overall length of the vessel.

* * * * *

Dated: October 16, 1995.

J.C. Card,

Rear Admiral, U.S. Coast Guard Chief, Marine Safety and Environmental

Protection.

[FR Doc. 96-28406 Filed 11-4-96; 8:45 am]

BILLING CODE 4910-14-M