[Federal Register Volume 81, Number 118 (Monday, June 20, 2016)]
[Rules and Regulations]
[Pages 40003-40147]
[FR Doc No: 2016-12857]

Vol. 81

Monday,

No. 118

June 20, 2016

Part II

Department of Homeland Security

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Coast Guard

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46 CFR Parts 1, 2, 15, et al.

Inspection of Towing Vessels; Final Rule

Federal Register / Vol. 81 , No. 118 / Monday, June 20, 2016 / Rules
and Regulations

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

46 CFR Parts 1, 2, 15, 136, 137, 138, 139, 140, 141, 142, 143, 144,
and 199

[Docket No. USCG-2006-24412]
RIN 1625-AB06

Inspection of Towing Vessels

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing safety regulations governing
the inspection, standards, and safety management systems of towing
vessels. We are taking this action because the Coast Guard and Maritime
Transportation Act of 2004 reclassified towing vessels as vessels
subject to inspection and authorized the Secretary of the Department of
Homeland Security to establish requirements for a safety management
system appropriate for the characteristics, methods of operation, and
nature of service of towing vessels. This rule, which includes
provisions covering specific electrical and machinery requirements for
new and existing towing vessels, the use and approval of third-party
organizations, and procedures for obtaining Certificates of Inspection,
will become effective July 20, 2016. However, certain existing towing
vessels subject to this rule will have an additional 2 years before
having to comply with most of its requirements.

DATES: This final rule is effective July 20, 2016. The incorporation by
reference of certain publications listed in the final rule is approved
by the Director of the Federal Register on July 20, 2016.

ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-2006-24412 and are available on the Internet by
going to http://www.regulations.gov, inserting USCG-2006-24412 in the
``Keyword'' box, and then clicking ``Search.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call LCDR William Nabach, Project Manager, CG-OES-2, Coast Guard,
telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations
II. Executive Summary
    A. Purpose and Authority
    B. Overview of Rule
    C. Costs and Benefits
III. Regulatory History
    A. Statutory Background
    B. Regulatory Background
IV. Discussion of Comments and Changes
    A. General Feedback on the NPRM
    B. Background and Need for Regulation
    C. Organization, General Course, and Methods Governing Marine
Safety Functions (Part 1)
    D. User Fees and Inspection Table (Part 2)
    E. Manning (Part 15)
    F. Certification/Definitions/Applicability (Part 136)
    G. Vessel Compliance (Part 137)
    H. Towing Safety Management System (TSMS) (Part 138)
    I. Third-Party Organizations (TPOs) (Part 139)
    J. Operations (Part 140)
    K. Lifesaving (Part 141)
    L. Fire Protection (Part 142)
    M. Machinery and Electrical (Part 143)
    N. Construction and Arrangement (Part 144)
    O. Miscellaneous Comments
    P. Crew Endurance Management Systems (CEMS)
    Q. Economic Analysis Comments
V. Regulatory Analyses
    A. Regulatory Planning and Review
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates Reform Act
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards and 1 CFR Part 51
    M. Environment

I. Abbreviations

2004 Act Coast Guard and Maritime Transportation Act of 2004
2010 Act Coast Guard Authorization Act of 2010
2012 Act Coast Guard and Maritime Transportation Act of 2012
ABS American Bureau of Shipping
ABSG American Bureau of Shipping Group
ABYC American Boat and Yacht Council
AED Automatic External Defibrillator
ANSI American National Standards Institute
AWO American Waterways Operators
BLS Bureau of Labor Statistics
CEMS Crew Endurance Management System
COI Certificate of Inspection
COTP Captain of the Port
DHS Department of Homeland Security
EPIRB Emergency Position Indicating Radio Beacon
FAST Fatigue Avoidance Scheduling Tool
FR Federal Register
FRFA Final regulatory flexibility assessment
gpm gallons per minute
GRT Gross register tons
HIPAA Health Insurance Portability and Accountability Act of 1996
HOS Hours of Service
IMO International Maritime Organization
IRFA Initial regulatory flexibility analysis
ISM International Safety Management
ISO International Organization for Standardization
kPa Kilopascals
LBP Length Between Perpendiculars
LCG Longitudinal Center of Gravity
LORAN Long Range Aid to Navigation
lpm liters per minute
MISLE Marine Information for Safety and Law Enforcement
MMC Merchant Mariner Credential
MOU Memorandum of Understanding
MTSA Maritime Transportation Security Act of 2002
NAMS National Association of Marine Surveyors
NARA National Archives and Records Administration
NEC National Electrical Code
NICET National Institute for Certification in Engineering
Technologies
NFPA National Fire Protection Association
NPRM Notice of Proposed Rulemaking
NRTL Nationally Recognized Testing Laboratory
NTSB National Transportation Safety Board
NVIC Navigation and Vessel Inspection Circular
OCMI Officer in Charge, Marine Inspection
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
P.E. Professional Engineer
PFD Personal Flotation Device
PIC Person in charge
PPE Personal Protective Equipment
psi pounds per square inch
RFA Regulatory Flexibility Act
Sec.  Section
SAE Society of Automotive Engineers
SAMS Society of Accredited Marine Surveyors
SMS Safety Management System
SBA Small Business Administration
SOLAS International Convention for the Safety of Life at Sea, 1974,
as amended
STCW Implementation of the Amendments to the International
Convention on Standards of Training, Certification and Watchkeeping
for Seafarers, 1978, and Changes to Domestic Endorsements
TPO Third-party organization
TSAC Towing Safety Advisory Committee
TSMS Towing Safety Management System
TVR Towing vessel record
U.S.C. United States Code
UWILD Underwater inspection in lieu of drydocking
VCG Vertical Center of Gravity
VHF Very High Frequency
VSL Value of a statistical life
VTS Vessel Traffic Service

II. Executive Summary

A. Purpose and Authority

    In 2004, Congress reclassified towing vessels as vessels subject to
inspection under part B of subtitle II of title 46, United States Code
(U.S.C.), and authorized the Secretary of Homeland Security to
establish requirements for the inspection of towing vessels, their
possible use of safety management

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 Sec.  15.535(b) should be revised. See
section 606 of that Act. We agree with the commenter that the exemption
is no longer valid and so we adopted the commenter's requested
amendment to Sec.  15.535.
    We received comments from several commenters who supported the work
conducted by TSAC working groups. For NPRM discussion of work by these
groups, see 76 FR 49978. Other commenters commended the Coast Guard's
efforts in incorporating suggestions provided by TSAC. One commenter
explained that a quote in the preamble, regarding the devastating
impact that a TSMS can have on smaller companies, was incorrectly
attributed to the TSAC Economic Analysis Working Group.
    The commenter, a trade association, went on to explain that
according to the experience of its members, TSMSs have had a positive
impact on the safety performance and success of many small companies.
    As we have previously noted, we greatly appreciate TSAC's
contributions to the development of the NPRM. The quote we attributed
to the TSAC Economic Working Group regarding the devastating impact
that a TSMS requirement can have on smaller companies was taken from an
earlier version of the working group's report; the quote should have
read ``To conduct internal audits on a large fleet, this may mean
hiring a full-time staff, including salary, training and travel costs.
While large companies will spend more to implement and maintain a SMS,
however, the costs to a small company may be more difficult to
absorb.'' See page 4 of the TSAC Economic Analysis Working Group
Report, Dec. 16, 2008, document USCG-2006-24412-0007 in the docket. We
are not surprised by the statement that TSMSs have had a positive
impact on the safety performance and success of safety operators; we
included TSMS as an option because we believe TSMSs will provide a
positive impact on the safe operation of towing vessels. For data
supporting this assessment, see the Regulatory Analysis for this final
rule in the docket.
    One commenter recommended that rather than writing a costly new set
of regulations, the Coast Guard should give consideration to
consolidating the rules already in place. The commenter recalled a
voluntary program from a 2009 ``United States Coast Guard Requirements
for Uninspected Towing Vessels'' document that issued stickers to
vessels that had been reviewed for compliance with current regulations.
    The Coast Guard established the voluntary Towing Vessel Bridging
Program in 2009 to ease the transition of towing vessels going from a
status of uninspected to inspected, and to ensure that both the Coast
Guard and the towing vessel industry are informed and prepared to meet
requirements coming from this Inspection of Towing Vessels

rulemaking. As we noted in the NPRM, the Coast Guard considered
existing regulations but decided the standards or regulations found in
other vessel inspection subchapters were not appropriate and did not
fulfill the intent of the 2004 Act. (76 FR 49987, Aug. 11, 2011.) The
unique nature of the towing industry and towing operations warrants the
development of new standards and regulations that pertain exclusively
to towing vessels. In addition to the TSMS, this final rule contains
other towing vessel-specific provisions, including expansion of the use
of TPOs as part of the Coast Guard's TSMS-based, towing vessel
inspection for certification regime. The Towing Vessel Bridging Program
is a transition program based on voluntary compliance; it is not a
substitute for a comprehensive regulatory regime that addresses and
enforces safety requirements for towing vessels that Congress
envisioned when it added towing vessels to the list of vessels subject
to inspection.
    We received comments from individuals and maritime companies who
disagreed with the need for the proposed regulations, either because
lack of vessel regulations were not the cause of the problem or the
proposed regulations were not risk-based. Three commenters noted that
some casualties occur because of human error, not from a lack of
regulation. One individual felt that the Mississippi River accident in
2008 was not a good example in support of additional regulation,
because the accident was caused by irresponsible behavior of the pilot.
    The Coast Guard recognizes that human error is the cause of some
casualties and that no amount of regulations will eliminate human
error. To the extent we are able, however, we have attempted to adopt
regulations that help ensure the safe operation of towing vessels,
including some regulations intended to address factors related to human
error. A fully functional safety management system, such as a TSMS, is
continuously updated and evolving based on the non-conformities
observed and the lessons learned as a result of reviewing incidents--
including those related to human error. The TSMS option should help
ensure that towing vessels are operated more safely and in full
compliance with the TSMS and regulations in subchapter M. The Coast
Guard inspection option may provide less frequent feedback to vessel
operators and crew, but it too is intended to ensure compliance with
regulations in subchapter M.
    Two commenters, an individual and a towing company, felt that the
regulations are not based on risk. A company asserted that a risk-based
approach supported by towing vessel casualty data should be the main
motivation behind the application and development of towing vessel
safety regulation.
    As reflected in discussions below regarding specific requirements,
the Coast Guard has used a risk-based approach in this rulemaking. We
have reviewed comments on cost and other assumptions on which we based
our proposed rule and have made changes when appropriate to ensure that
this final rule is risk-based. For data supporting this assessment, see
the Regulatory Analysis for the final rule.
    One commenter indicated that the Coast Guard's Marine Safety
Directorate has not sought to help working mariners. The commenter
praised Congress for amending 46 U.S.C. 2114 to protect a seaman
against discrimination if he or she testifies in a proceeding brought
to enforce a maritime safety law or regulation, or engages in certain
other actions involving the seaman's work, or participates in a safety
investigation by the Department of Homeland Security or National
Transportation Safety Board (NTSB). The commenter listed four areas
where mariners' safety, health, and welfare, in the commenter's view,
were largely unprotected: Workplace safety on uninspected dry cargo
barges, hearing protection and noise prevention, asbestos, and personal
protective equipment. The same commenter urged Congress to transfer
authority over workplace inspection, drafting safety regulations, and
requiring proper maintenance of barges from the Occupational Safety and
Health Administration (OSHA) to the Coast Guard. This commenter also
recommended areas in which the NPRM should be revised to promote
workplace safety and health regulations, including training of Coast
Guard inspectors in OSHA-workplace-safety regulations and the use of
personal protective equipment.
    The Coast Guard notes the commenter's concern; the commenter's
specific suggested revisions to the regulations proposed in the NPRM
are addressed below where we discuss 46 CFR part 140, Operations, which
includes subparts on crew safety and safety and health, and other parts
addressed by this commenter.

C. Organization, General Course, and Methods Governing Marine Safety
Functions (Part 1)

    In our NPRM, we did not propose to amend part 1, but in this final
rule we added Sec.  1.03-55 to address comments on the appeals process
for a company whose certificate is rescinded. See section IV.H below.
Our proposed Sec.  136.180 pointed to 46 CFR 1.03 for those seeking to
appeal, but we saw the need to identify the Coast Guard official or
entity that appeals should be directed to, including the appeal of
matters relating to action of a third party, such as when a TPO
rescinds a TSMS certificate.

D. User Fees and Inspection Table (Part 2)

    Part 2 of 46 CFR is in subchapter A. We received two comments
regarding user fees. An association asked the Coast Guard to clarify
whether those choosing both the TSMS and the Coast Guard inspection
options will have to pay whatever user fee is assessed in the final
rule to recover the costs of the entire new towing vessel inspection
program. Another commenter asserted that charging user fees to finance
the implementation of regulation that is not risk-based will return
little value to the industry.
    Under 46 U.S.C. 2110 and the Coast Guard's regulations in 46 CFR
subpart 2.10, the Coast Guard is required to charge a fee for services
provided for vessels required to have a Certificate of Inspection
(COI). Subpart 2.10 fees, however, do not apply to the initial issuance
of a COI.
    This fee for services must meet the criteria of 31 U.S.C. 9701
(Fees and charges for Government services and things of value) to be
fair and based on the cost to the government, the value of the service
being provided, the public policy served, and other relevant facts. The
Office of Management and Budget (OMB) Revised Circular A-25 explains
that full program costs should be recovered by fees charged.
    In our NPRM, the Coast Guard stated its intent to establish a user
fee, as required by law, for those vessels required to comply with
subchapter M, and indicated that this user fee would be established
through a separate rulemaking process that would commence on or around
publication of this final rule. The Coast Guard also committed to not
inspecting towing vessels or issuing COIs to towing vessels until user
fees were established. (76 FR 49985, August 11, 2011.)
    We still plan to promulgate a separate rulemaking for an annual
inspection fee specifically for towing vessels, under the authority in
46 U.S.C. 2110 and 31 U.S.C. 9701, that will consider the specific
program costs associated with the TSMS and Coast Guard inspection
options. However, until that time the

Coast Guard is establishing the existing fee of $1,030 stated in 46 CFR
2.10-101 as the annual inspection fee for towing vessels subject to
subchapter M, for any inspected vessel not listed in Table 2.10-101. As
reflected in 46 CFR 2.10-1(b), this annual inspection fee will not be
charged for an initial COI inspection, but the fee will be charged
annually starting a year later. Once this final rule becomes effective,
the Coast Guard will apply the existing annual fee listed in 46 CFR
2.10-101, Table 2.10-101 as ``Any inspected vessel not listed in this
table'' to subchapter M vessels other than those already separately
listed in the Table. Since all vessels subject to subchapter M will be
considered inspected vessels and required to obtain COIs, regardless of
whether the TSMS option is chosen, all subchapter M vessels receiving
COIs will be charged an annual inspection fee as outlined above.
    User fees charged by the Coast Guard under 46 U.S.C. 2110 do not
directly finance Coast Guard operations and thus user fees do not
finance the implementation of the regulations. OMB's Revised Circular
A-25 explains that user fees are intended to offset the cost of
providing services to specific beneficiaries.
    Regarding the comment about the lack of value of a user fee to
finance the implementation of a non-risk-based regulation, we have used
a risk-based approach in developing this rulemaking and have made
changes from the proposed rule taking into account commenters concerns
to ensure that this final rule continues to rely on risk-based
analysis.
Other Certification Changes
    In the NPRM we stated we would amend the table in subchapter I--and
in other subchapters--that identified inspection and certification
regulations applicable to vessels. Our intended amendments to those
tables were to reflect changes for towing vessels introduced by
subchapter M (see discussion in 76 FR 49979, August 11, 2011). Since
the NPRM was published, however, in a separate rulemaking (79 FR 58270,
58272, September 29, 2014) the Coast Guard removed tables in 46 CFR
24.05-1, 70.05-1, 90.05-1, and 188.05-1. Those tables replicated a
table in 46 CFR part 2 dedicated to inspection regulations and thus
were not necessary.
    Rather than add to the 7-column, 7-page table in 46 CFR 2.01-7(a),
we have amended the text before and after the table instead. These
amendments direct towing vessels to a new paragraph (b), which directs
those subject to this rule to subchapter M for inspection and
certification regulations, and other towing vessels to Table 2.01-7(a).

E. Manning (Part 15)

    We received approximately 40 comments that addressed the issue of
manning. Part 15 of 46 CFR is in subchapter B.
    We received several comments stating that the Coast Guard should
require minimum crew manning levels. One commenter said wheelhouse
manning is a concern due to the shortage of qualified individuals
holding the appropriate merchant mariner credential, especially with
the retirement age approaching for many currently qualified
individuals. A maritime company said the minimum manning level should
be included in the COI. Another commenter noted in response to COI
requirements proposed in part 136 that this regulation should clarify
the number of required crewmembers and allow the towing vessel to be
operated by a single crewmember in certain circumstances.
    In accordance with 46 CFR 15.501, the Coast Guard will specify the
minimum manning for each towing vessel in all of the vessel's areas of
operation on the vessel's COI, including international and domestic
operations. We note that Officers in Charge, Marine Inspection (OCMIs)
will review operational details of the vessel and work with companies
to make decisions on vessel manning which could indicate various levels
of manning based on specific routes and service of the towing vessel
when determining the number of required crewmembers for a towing
vessel. We do not envision an appreciable increase in the number of
qualified individuals needed to man inspected towing vessels. The
influence of market forces on the number of individuals seeking to
become credentialed operators is beyond the scope of this rulemaking.
    Several commenters opposed any change to the current manning levels
required for towing vessels, and some commenters recommended specific
changes to several sections currently in the CFR, such as 33 CFR
155.710(e) and 46 CFR 15.810(b) and 15.820(a)(3), to avoid inadvertent
changes to the manning or credentialing requirements given the Coast
Guard's statement in the NPRM that ``we are not proposing to change any
of the current manning levels required for towing vessels'' (76 FR
49990, Aug. 11, 2011).
    As previously stated, the Coast Guard will make a vessel-specific
assessment of the manning required for a given vessel's operations. The
minimum manning required for safe operations may differ from one
operation to another. As with other inspected vessels, this is a
vessel-specific determination made by the cognizant OCMI.
    The Coast Guard believes the requested change to Sec.  15.820(a)(3)
is already addressed through existing regulations. For inspected
vessels 300 gross tons and above that operate on inland waters, 46 CFR
15.820(a)(3) requires the vessel to have an individual with a license
or the appropriate merchant mariner credential (MMC) officer
endorsement if the OCMI determines that such credentials are necessary
for the person responsible for the vessel's mechanical propulsion. For
purposes of towing vessels, however, the applicable subchapter B
definition of ``inland waters'' excludes the Western Rivers. See 46 CFR
10.107. Therefore, Sec.  15.820(a)(3) does not apply to a towing vessel
when it is operating on Western Rivers, a term also defined in Sec.
10.107. Based on a recent survey of the Coast Guard's Marine
Information for Safety and Law Enforcement (MISLE) database, we have
concluded that most inland towing vessels 300 gross tons or above
operate on the Western Rivers. Those towing vessels operating on inland
waters beyond the Western Rivers may be required to have a credentialed
individual responsible for the vessel's mechanical propulsion based on
a vessel-specific assessment conducted by the cognizant OCMI.
    The Coast Guard believes changes to 33 CFR 155.710(e) that would
allow the use of a letter-of-designation for an inspected towing vessel
are not warranted. The requirements of 33 CFR 155.710(e)(1) apply to
all inspected vessels required by 46 CFR chapter I to have an officer
aboard, including towing vessels that become inspected vessels under
this rule. Congress made towing vessels a class of vessels subject to
inspection, and we have no evidence that towing vessels are less likely
to spill oil than the other inspected vessels already subject to Sec.
155.710(e)(1). We also see value in uniform requirments for inspected
vessels conducting the same activities. We note, however, that existing
Sec.  155.130 provides for exemptions from compliance with the
requirement if authorized by the COTP or OCMI for reasons such as
economic or physical impracticality. We therefore believe that adequate
flexibility already exists in Part 155 to accommodate any unexpected
consequences of towing vessels becoming subject Sec.  155.710(e)(1).
    The Coast Guard believes changes to 46 CFR 15.810(b), in order to
exempt towing vessels subject to subchapter M

from the requirements for a minimum number of mariners holding a
license or MMC officer endorsement as mate required to be carried on
certain inspected vessels, are not warranted. Towing vessels are one of
the several classes of vessels that are authorized to use a two-watch
system and, as a result, additional mates are unnecessary to comply
with this level of manning.
    Some commenters urged the Coast Guard to adopt TSAC's 2006
recommendations to amend proposed 46 CFR 15.535 to incorporate a
baseline requirement for a safe watch complement. This was intended to
avoid confusion about the minimum manning that will be required on
towing vessel COIs and the role of the TSMS in crewing decisions.
    Consistent with our NPRM preamble statement that we were not
proposing to change any of the current manning levels required for
towing vessels, we modeled our proposed Sec.  15.535 after Sec.
15.610, which addresses towing vessel master and mate (pilot)
requirements on uninspected vessels. But as noted above in section
IV.B, we made a change in Sec.  15.535 from what we proposed in the
NPRM. To reflect the 2010 Act's amendment to 46 U.S.C. 8905, we made a
conforming amendment to Sec.  15.535(b) to remove an non-applicability
reference to certain towing vessels of less than 200 gross register
tons engaged in exploiting offshore minerals or oil. While reviewing
proposed Sec.  15.535 in response to a comment discussed above, we
noted the need to remove a reference to vessels engaged in assistance
towing because the applicability of Sec.  15.535 does not include
vessels engaged in assistance towing. Further, we revised paragraph (a)
to more clearly state which vessels are subject to Sec.  15.535, to
specify the vessels not subject to subchapter M that must meet
requirements Sec.  15.535(b), and to note that all towing vessels
subject to Sec.  15.535 must also meet requirements in Sec.  15.535(c).
Finally, we inserted clarifying edits and paragraph headings in Sec.
15.535 to make it easier to read and understand, and in both Sec. Sec.
15.535 and 15.610 we clarified that the officer in charge of the vessel
must provide the evidence to the Coast Guard.
    Also, we made changes to Sec.  15.535 to ensure consistency in the
nomenclature introduced by the Consolidation of Merchant Mariner
Qualification Credentials final rule (74 FR 11196, Mar. 16, 2009), and
to Sec.  15.610 to ensure that this section refers to the remaining
uninspected towing vessels. Our changes also reflect the recent
amendments made by the final rule entitled Implementation of the
Amendments to the International Convention on Standards of Training,
Certification and Watchkeeping for Seafarers, 1978, and Changes to
Domestic Endorsements (STCW) (78 FR 77796, Dec. 24, 2013).
    As the authority issuing the vessel's COI, the cognizant OCMI is
required by law to stipulate the manning for an inspected vessel. See
46 U.S.C. 3309 and 8101, 33 CFR 1.01-20, and 46 CFR 2.01-5 and 15.501.
She or he can take a variety of factors into consideration when
determining the safe manning for a vessel, including recommendations
from the owner or managing operator. In some cases, existing law or
regulations specify the minimum manning for a particular voyage, area
of operation, or vessel service. See e.g., 46 U.S.C. 8301 and 46 CFR
15.610. In this final rule, 46 CFR 15.535 would set one such minimum.
An OCMI may specify a level of manning above those minimums specified
by law if such a level is warranted to safely operate the vessel. See
46 U.S.C. 8301(d)(2) and 46 CFR 15.501. A vessel's safety management
system can identify situations where additional manning may be
warranted (such as high water conditions) but it cannot specify a level
of manning below the minimum established by the OCMI at any time.
    We received some comments stating that the language used in Sec.
15.535(c) concerning towing vessels in pilotage waters on the Lower
Mississippi River is not clear. One commenter said it would be useful
to define the geographical limits of the ``pilotage waters of the Lower
Mississippi River'' in Sec.  15.535(c). Another commenter said the
language should be the same as that used in Sec.  15.610(b).
    The Coast Guard agrees with these comments and has changed the text
in Sec.  15.535(c) to match the current text of Sec.  15.610(b), except
for necessary organizational changes and to specify that the evidence
should be provided to the Coast Guard. The pilotage waters of the Lower
Mississippi River are described in a notice of designated areas
published December 26, 1996 (61 FR 68090).
    Some commenters said crew size should be dictated by the size and
needs of the vessel. One commenter said the vessel master must have the
final say on the crew requirements. A towing company said it is
important that the minimum manning requirements account for different
vessel operations (e.g., crew of three for ship assist work in-harbor
versus crew of six for offshore trips).
    While the master has a role in ensuring the proper manning of a
vessel, the master must observe applicable law and regulations, and the
manning specified by the Coast Guard on the vessel's COI when
performing that role. We note that under Sec.  140.210, the master must
ensure that adequate corrective action is taken when he or she
encounters unsafe conditions. The COI issued by the Coast Guard will
specify the minimum manning for the vessel under normal operating
conditions and the master must adhere to the provisions of the COI. See
Sec.  140.210(a)(1). The towing vessel master and the TSMS should
identify when, and if, additional personnel are needed on board the
towing vessel. During flood or low water conditions, for example, the
master may specify that additional crew members are needed.
    We received some comments requesting that the Coast Guard clarify
and resolve differences in language between Sec.  15.535 and language
in the STCW Supplemental NPRM that proposed to amend Sec.  15.610.
    As noted above, the STCW final rule has been published, and we have
amended the text in Sec.  15.535(c) to match the current Sec.
15.610(b). There was a slight variation in wording between Sec.
15.535(c) as originally proposed and Sec.  15.610(b).
    Further, our proposed Sec.  15.535(c) specified that the towing
vessel ``be under the control of an officer who holds a first class
pilot's license or endorsement for that route, or who meets''
requirements related to the type of barge being towed. The current
Sec.  15.610(b) specifies that the towing vessel be under the control
of an officer meeting that section's requirements for a towing vessel
of 26 feet or more in length and that that officer hold ``a first-class
pilot's endorsement for that route or MMC officer endorsement for the
Western Rivers, or'' that the officer meets the requirements for a
towing vessel of 26 feet or more in length and the requirements based
on the type of barge being towed. Consistent with the commenters'
recommendations, we have amended Sec.  15.535 to conform to the current
version of Sec.  15.610.
    Also, because we added Sec.  15.535 to address vessels subject to
subchapter M, we inserted a paragraph at the beginning of Sec.  15.610
to limit that section to towing vessels not subject to subchapter M.
Applicability exceptions in subchapter M explain that some towing
vessels at least 8 meters in length will still be subject to Sec.
15.610. We made necessary organizational changes to Sec.  15.610 to
reflect our insertion of this new paragraph.
    An individual recommended that in addition to the towing vessel
being

operated by a properly licensed master, our rule should require at
least one crew member to be documented with preferably an ``Able
Bodied'' seaman's rating. The commenter noted his marine work
experience and seeing members of a construction crew assigned to handle
the lines when a towing evolution was needed. He stated that the skills
and knowledge of construction workers do not always overlap with those
required of seamen.
    We did not propose the change suggested by this commenter and would
want to receive comments before making the suggested change. But we are
confident that the manning requirements in Sec.  15.535 and
requirements in Sec.  140.210 for reporting and addressing unsafe
conditions provide assurances that lines will be properly handled
during towing evolutions. We have not made a change from the proposed
rule based on this comment.
    We received one comment saying that our rulemaking seeks to address
issues such as a ``man overboard'' situation, but such situations are
innately linked to minimum safe manning of a vessel. The commenter
asked how a licensed towing officer at the helm is expected to safely
and successfully recover a single deckhand from the water should the
deckhand go overboard during routine operations.
    We have addressed requirements for lifesaving equipment,
arrangements, systems, and procedures on towing vessels in Section IV.K
of this preamble, ``Lifesaving,'' and lifesaving regulations are
located in part 141 of subchapter M. When specifying the minimum
complement of officers and crew necessary for the safe operation of the
vessel, the OCMI is called on to consider emergency situations such as
a person overboard. See 46 CFR 15.501.
    One commenter pointed out that language used in Sec.  15.535 in the
NPRM regarding an exception for certain towing vessels was eliminated
by section 606 of the 2010 Act.
    As noted above in response to a comment addressed in section IV.B,
section 606 of Public Law 111-281 did strike the paragraph in 46 U.S.C.
8905 that exempted vessels of less than 200 gross tons ``engaged in the
offshore mineral and oil industry if the vessel has offshore mineral
and oil industry sites or equipment as its ultimate destination or
place of departure'' from 46 U.S.C. 8904 requirements and regulations
promulgated under 46 U.S.C. 8904. This statutory change was not
reflected in our proposed rule. Accordingly, we made a conforming
amendment to Sec.  15.535(b), which excludes certain vessels from the
licensed-master-or-mate requirement, by deleting the reference to
vessels engaged in the offshore mineral and oil industry. This
amendment to Sec.  15.535(b), which now only exempts vessels engaged in
assistance towing from the licensed-master-or-mate requirement,
conforms this final rule to Public Law 111-281's amendment to 46 U.S.C.
8905.
    One commenter expressed concern about the words ``not to include
over time'' in the definition of ``day'' in existing 46 CFR 10.107 and
that section's computation of service hours on vessels less than 100
gross register tons (GRT). The commenter stated that work-hour abuses
occur, especially on vessels of less than 100 GRT, because a day of
work is considered 8 hours. Also, overtime is not counted toward sea
service. The commenter recommends that this loophole be removed.
    In the proposed regulatory text of the NPRM, we did touch on 46 CFR
chapter I, subchapter B, Merchant Marine Officers and Seamen, but we
did not propose any changes to 46 CFR part 10, Merchant Mariner
Credential, where 46 CFR 10.107 is located. Related to this comment, we
note that Section 607 of the 2010 Act, which amended 46 U.S.C. by
introducing additional logbook and entry requirements in 46 U.S.C.
11304, included entries for the ``number of hours in service to the
vessels of each seaman and each officer.'' We would need a separate
rulemaking to fully implement section 607 of the 2010 Act, which
involves hours of service; that rulemaking could apply to more than
just towing vessels.
    We amended a regulation, 46 CFR 15.815(c), that requires a radar
observer endorsement for masters or mates onboard an uninspected towing
vessel 26 feet or longer by removing the word ``uninspected.'' When
that regulation was issued, most towing vessels were uninspected, and
Sec.  15.815(a) covered towing vessels 300 GRT or more that were
inspected. Because most towing vessels 26 feet or longer will become
inspected once this rule becomes effective, we are making this
conforming amendment to 46 CFR 15.815(c). This change is consistent
with our Sec.  15.815 towing-vessel specific enabling statute, 46
U.S.C. 8904(a), which distinguishes towing vessels purely on length,
not whether they are inspected or uninspected. Because Sec.  15.815(c)
already requires this radar observers' endorsement on uninspected
towing vessels, there is no anticipated cost associated with this
change.

F. Certification/Definitions/Applicability (Part 136)

Applicability
    We received some comments supporting the Coast Guard's decision to
defer consideration to a subsequent rulemaking of requirements for
towing vessels less than 26 feet in length, towing vessels used solely
for assistance towing, and work boats operating exclusively within a
work site and performing intermittent towing within a work site.
Several commenters expressed support for the concept of excepted
vessels but felt that clarification is needed with regard to the range
of fleet and harbor service operations that fall under this term.
Others suggested that some aspects of the equipment requirements, like
distress flares and additional lifebuoys, could be removed from the
rule.
    In our definition of ``excepted vessel'' in Sec.  136.110, we make
reference to harbor-assist, but we define that term in addition to
``limited geographic area'' and we believe those definitions are
sufficiently clear to identify the range of harbor service operations
that fall under these terms. We had included a reference to a fleeting
area as an example of a limited geographic area in our proposed
definition of ``excepted vessel,'' but, as discussed below in this
section (IV.F), we removed that and other examples for the separately
defined term ``limited geographic area.'' Also, we amended the
reference to vessels that may be included by the cognizant OCMI in this
definition by identifying the requirements and reasons the OCMI must
consider before treating a vessel as an excepted vessel for purposes of
some or all of the requirements listed.
    The Coast Guard has not subjected excepted vessels to certain
requirements in part 142 for fire protection equipment, and certain
requirements for new vessels in part 143 for alarms and monitoring,
general alarms, communication, fuel shutoff, additional fuel system
requirements for existing vessels, and electrical power sources,
generators, and motors, and electrical overcurrent protection. We have
considered a commenter's request to also not require excepted vessels
to comply with distress flare and additional lifebuoy requirements but
decline to do so because the factors used to except these vessels do
not reduce the need for flare and lifebuoy requirements.
    In Sec.  141.375, we have a more precise exception regarding
distress flares and do not require that they be carried on vessels
operating in a limited

geographic area on a short run limited to approximately 30 minutes away
from the dock. Also, we have reviewed our lifebuoy requirements in
Sec.  141.360 based on the request to not require additional lifebuoys
of excepted vessels, but have not adopted this suggested change because
some excepted vessels, for example, towing vessels used for response to
an emergency, need to have on board the lifebuoys required under Sec.
141.360. Also, we noted our use of the term ``excepted towing vessel,''
instead of ``excepted vessel,'' in part 143. We have clarified part 143
by making all proposed references to ``excepted towing vessel,''
consistent with the term we defined, ``excepted vessel.''
    Some commenters did not agree with our exception of towing vessels
less than 26 feet for several reasons, including smaller vessels being
given an unfair competitive advantage, the fact that such vessels may
be engaging in commercial work, and a concern about regulatory
avoidance.
    Our exemption for towing vessels less than 26 feet in length is
intended to provide for an incremental application of inspection status
to the towing vessel fleet and is consistent with the recommendations
of TSAC. We note here that we made edits in Sec.  136.105 to ensure
that the exemptions in that section are clearly stated. Specifically
regarding our meter approximation of 26 feet, we changed ``(8 meters)''
to the more precise approximation of ``(7.92 meters).'' Also we
corrected the threshold for vessels subject to subchapter I.
    An individual noted that towing vessels should be measured end-to-
end at actual length, and another commenter suggested that the size of
tow should be used to determine exempt vessels. Another individual
recommended that the exemption should be based on a combination of
length, displacement, and shaft horsepower in order to remove the
incentive to use short, high-power tugs to circumvent Coast Guard
inspections. A commenter suggested a clarification that towing vessels
less than 26 feet in length are not exempt if they move barges carrying
oil.
    For methods of measuring towing vessels, the Coast Guard sees no
reason to deviate from the statutory standard in 46 U.S.C. 8904(a)
which is reflected in 46 CFR 15.535 and 136.105: Length measured from
end to end over the deck (excluding the sheer). We considered the
suggestion of using size of tow or a combination of length,
displacement, and shaft horsepower as a way to determine applicability,
but we believe using the length of the towing vessels is a more
manageable approach which--while not as direct--provides a measure of
risk control.
    We agree that a change from the proposed rule is necessary to
clarify that vessels less than 26 feet are not exempt from the
requirements of this rulemaking when towing a barge carrying oil. In
proposed Sec.  136.105, when identifying exceptions to applicability,
we made clear that towing vessels less than 26 feet that push, pull, or
haul a ``barge that is carrying dangerous or hazardous material'' would
not be excluded from subchapter M applicability. In the NPRM, we did
not define the term ``dangerous or hazardous material'' but in the
preamble we did describe our limitation on the less-than-26-feet
exemption by stating this rule does not apply to towing vessels less
than 26 feet in length ``unless towing a barge carrying oil or other
dangerous or combustible cargo in bulk.'' To make this intent clear in
the regulatory text of the final rule, we have adopted the defined term
``oil or hazardous material in bulk,'' to replace the term ``dangerous
or hazardous material'' in Sec.  136.105(a).
    Also, to clarify that only one form of hazardous material needs be
carried to trigger applicability, we changed ``materials'' to the
singular, ``material,'' throughout the final rule. Also, we amended the
definition of ``oil or hazardous material in bulk'' by inserting ``to
carry cargoes'' in its reference to being certified under subchapters D
or O to better reflect the nature of the certifications.
    Other companies supported the less-than-26-foot exception. One
commenter acknowledged that the Coast Guard could address smaller
towing vessels in a future rulemaking. An individual thought the
exception should apply to even longer vessels (up to 32 or 40 feet in
length) because such vessels are too small to do any serious towing,
and a company agreed and stated that all its shipyard and harbor
service vessels were 34 feet or longer.
    As noted above, the Coast Guard approach in transitioning the
uninspected towing vessel fleet into an inspected status is to do so
incrementally over time. Based on our analysis of risk and a specific
recommendation provided by TSAC,\1\ we proposed that subchapter M apply
to vessels 26 feet and above. This length standard has been used in
various statutes to establish requirements for radiotelephones,
automatic identification systems, electronic charts, and manning for
towing vessels. See 33 U.S.C. 1203 and 1223a, and 46 U.S.C. 8904 and
70114. We find no perfect length for measuring risk, but we believe 26
feet is the best breakpoint to use at this time in our transitioning of
the uninspected towing vessel fleet into an inspected fleet.
---------------------------------------------------------------------------

    \1\ ``Report of the Working Group on Towing Vessel Inspection,''
p. 6, submitted to TSAC on September 29, 2005.
---------------------------------------------------------------------------

    We received one comment supporting the exception for workboats that
do not engage in commercial towing for hire but perform intermittent
towing within a worksite. A contracting company agreed that increased
equipment requirements are not needed for job site boats. Two
individuals suggested that the exception should be simplified, such as
by including a mileage limitation. A company recommended a slight
expansion of the exception to cover workboats going to or from the
worksite.
    The Coast Guard disagrees with the recommendation to include a
mileage limitation or expand the exception, and believes the terms
``worksite'' and ``workboat'' are adequately defined in Sec.  136.110.
The OCMI will make determinations of the boundaries and limitations of
worksites within the OCMI's zone. The OCMI will evaluate the unique
operating conditions and hazards of the area and determine the risks
and mitigating factors necessary to support such operations.
    A commenter requested that we treat workboats engaged in oil spill
response activities as exempt, just as we exempt workboats operating in
a worksite.
    The Coast Guard has already included an exception for towing
vessels engaged in emergency or pollution response in our definition of
``excepted vessels'' in Sec.  136.110. We do not intend to provide a
general exemption to oil spill response vessels from these rules.
Instead, the OCMI may designate a pollution response area as a worksite
which would afford a towing vessel the opportunity to be exempt from
subchapter M while it is operating exclusively in the worksite if it
qualifies as a workboat under Sec.  136.105(a)(3).
    This is consistent with the Coast Guard's intent to provide
inspection standards to certain vessels based on risk and consistent
with the recommendations of TSAC. This rule exempts certain types of
vessels from subchapter M, and relieves other types of vessels,
excepted vessels, from certain equipment requirements due to the nature
of their service. We have made no changes from the proposed rule based
on this comment.
    Two commenters suggested adding language to our worksite exception
in Sec.  136.105(a)(3) to include ``maneuvering a tank barge on and off
of a drydock or

cleaning dock'' to the ``intermittent towing'' covered in the worksite;
and others recommended that we amend our ``excepted vessel'' definition
in Sec.  136.110 to include moving vessels on and off drydocks and to
and from cleaning docks, or shifting vessels within a limited
geographic area, or including a full range of activities commonly
performed by towing vessels in a limited geographic area.
    The Coast Guard sees no need for these recommended changes. Our
workboat exception in Sec.  136.105(a)(3) covers the activity the
commenter requests we add. Also, our definition of ``excepted vessel''
in Sec.  136.110 includes towing vessels operating ``within a limited
geographic area.'' Excepted vessels could include towing vessels moving
vessels on and off drydocks and to and from cleaning docks. But we have
left this determination to the discretion of the cognizant OCMI, to be
made on a case-by-case basis.
    We received a very large number of comments, particularly from
commenters in the American Waterways Operators (AWO) Responsible
Carrier Program (RCP), that expressed the belief that the TSMS should
be required for all towing companies and should not be optional.
Proponents argued that the TSMS is flexible and scalable, would create
consistency, and addresses human error, the leading cause of towing
vessel accidents. Some of the commenters favored having a third-party
audit option and conservation of Coast Guard resources. A maritime
company stated that the savings accruing from a robust TSMS will far
outweigh any associated cost of development and implementation. One
company observed that a TSMS gives a company the ability to adjust its
system through lessons learned and continuous improvement, rather than
complying with a set of standards once a year. Commenters stated that
the Coast Guard should not make the TSMS optional because of concern
about costs; instead the Coast Guard should eliminate requirements that
are not justified by risk analysis. One commenter warned, however, that
a TSMS is not a substitute for an inspection.
    We received many other comments that supported retaining the option
of inspection by the Coast Guard. Proponents favored the flexibility
provided by having the option, the reduced administrative burden of the
Coast Guard inspection, cost efficiency for small businesses, and the
fact that the Coast Guard already has a successful inspection program.
An association has favored a traditional Coast Guard inspection program
for the towing industry. An individual noted that small companies
cannot afford to create and implement a TSMS and would depend on the
Coast Guard to provide yearly inspections and guidance. Other
individuals and a State government recommended that the Coast Guard
should develop a model TSMS that would be easy for small companies to
adopt. Another individual opposed having optional provisions in a
regulation. A commenter pointed out that current form CG-3752,
Application for Inspection of U.S. Vessel, should be revised to add a
block for indicating which option is being used for the towing vessel.
    As we noted in the NPRM (76 FR 49979), the NTSB and TSAC have
strongly supported a TSMS, and the approach is supported by the
International Safety Management (ISM) Code. The NTSB disagreed with our
applicability exception for seagoing towing vessels of 300 gross tons
or more subject to the provisions of subchapter I because currently
under 33 CFR part 96 only vessels measuring more than 500 gross tons
and operating on international voyages are required to have SMS and the
subchapter M regulation does not apply to the 22 seagoing towing
vessels of 300 gross tons or more already inspected in accordance with
regulations for cargo and miscellaneous vessels in 46 CFR subchapter I.
The NTSB encouraged the Coast Guard to extend the SMS requirement to
these seagoing vessels by requiring SMS on all seagoing towing vessels
of 300 gross tons or more.
    The Coast Guard believes the traditional annual inspection regime
we offer as an option to all towing vessels subject to subchapter M
will provide necessary measures to ensure compliance with subchapter M
requirements and enable us to detect non-compliance.
    The Coast Guard notes the NTSB concerns and acknowledges that not
all seagoing towing vessels subject to subchapter I are required to
comply with SMS requirements in 33 CFR part 96, subpart B, for vessels
on international voyages. That applicability threshold of the 500 gross
tons reflects an international standard from the International
Convention for the Safety of Life at Sea, 1974, as amended (SOLAS) for
vessels subject to Chapter IX of SOLAS, Management of the Safe
Operation of Ships. In general, the Coast Guard supports all towing
vessels being subject to a robust and well-functioning safety
management system. Should the Coast Guard decide to extend SMS
requirements to all vessels subject to subchapter M, or to seagoing
towing vessels of 300 gross tons or more that are subject to subchapter
I, we would proceed with a separate rulemaking. We would look at
accident data after this rule becomes effective before proposing such a
rule.
    We are considering the suggestion that we amend form CG-3752,
Application for Inspection of U.S. Vessel, to add a block to indicate
which option the towing vessel owner or managing operator is using. For
now, we recommend using the ``Other (Indicate)'' box--e.g., ``Towing
Vessel (TSMS option)'' or ``Towing Vessel (CG Inspection option).''
    We received some comments from towing or dredging companies
suggesting exemption from the entire rule for certain vessels, such as
all existing vessels, vessels under 79 feet, vessels under 200 gross
tons, or vessels operating on inland and harbor routes. One company
argued that construction/dredge tugs on the Great Lakes should be
considered for exceptions. Another company requested an exception for
vessels that work as towing vessels less than 10 percent of the year. A
small company with an 18-foot tow vessel and a 33-foot barge that
carries less than 10,000 gallons of diesel requested an exception. Some
commenters suggested that vessels used to move passenger barges should
be specifically excluded. One company recommended that a committee
should be formed to examine which regulatory provisions are appropriate
for particular vessels.
    The Coast Guard does not believe that broad exemptions from the
requirement of these rules would serve the intended goal of improving
safety in the towing vessel industry. The Coast Guard seeks a balance
between a tiered implementation of towing vessel safety rules to
vessels with the greatest risk and a prudent exemption of applicability
to towing vessels with less potential risk to life, property and the
environment.
    One commenter suggested exemptions for towing vessels operating on
inland and harbor routes not engaged in transporting petroleum
products. In particular, they argued that the TSMS and towing vessel
record (TVR) requirements should only apply to vessels that tow oil and
hazardous material, or are over 79 feet and 2,000 HP.
    The Coast Guard disagrees. As we note in our earlier discussion of
part 136 comments, the Coast Guard does not intend to create exemptions
for all types of inland towing operations, or to provide exemptions for
particular areas without cause. We note, however, that under Sec.
136.230 the OCMI may consider

route-specific requirements of subchapter M when designating a
permitted route.
    Regarding the TSMS requirement, it is optional. In this final rule,
the only vessels required to maintain a TSMS are those that choose the
TSMS option. A TSMS, however, may benefit every type of towing vessel
regardless of its service routes, vessel length, or vessel horsepower.
For more details on this, see the discussion in section IV.B and the RA
for the final rule (in the docket). As for the TVR requirement, the
vessel owner or managing operator has the option of maintaining it
electronically or on paper, and for towing vessels with a TSMS, the
required records may be maintained in another record specified by the
TSMS. It is essential for maritime safety that data we require in Sec.
140.915 be recorded. We discuss the TVR requirement, and the various
forms it may take, in more detail in our discussion of part 140
comments.
    We received one comment that favored applying the rule to vessels
towing oil and providing harbor assist to large ships, applying a less
costly system to other vessels, and clarifying exemptions. Many
commenters agreed that rules designed for offshore or ocean routes or
large rivers were not appropriate for vessels in canals, harbors, or
shallow rivers. The commenters opposed a one size fits all approach,
and noted that Congress intended different standards for various types
of towing vessels. One of the commenters favored grandfathering
existing vessels into compliance for as many of the requirements as
practicable. Another commenter, however, noted that risks are similar
for inland and harbor towing as for coastwise or ocean towing, and
solutions, such as planning and testing, should be similar. A towing
company opposed having more stringent rules for tank barge operators
than for companies that haul dry cargo barges.
    The Coast Guard agrees that there are different characteristics,
methods of operation, and nature of service of towing vessels that
require unique application of requirements. The Coast Guard believes
that the utilization of a TSMS allows the operator to tailor safety
processes to the unique conditions in which the vessel and company
operate. A TSMS is scalable, dynamic, and customized by the operator
for the unique risks, challenges, and operating environments
anticipated. Some hazards are universal to all vessels regardless of
where they operate. Therefore, the Coast Guard believes that certain
minimum standards are necessary to mitigate these risks and seeks to
apply them to all towing vessels subject to this rule. The additional
variations necessitated by the type and area of operation can be
accommodated by a TSMS.
    An association questioned whether ``Lugger Tugs,'' towing vessels
that carry cargo, would be inspected as towing vessels or as offshore
supply vessels. One individual urged the Coast Guard to ensure
consistency in regulatory enforcement and fairness for all vessels.
    The Coast Guard notes that towing vessels that carry cargo for
hire, or conduct other regulated activities--such as carrying
passengers for hire, would likely be subject to regulations contained
in other subchapters. Vessels engaged in two (or more) separate
regulated activities are referred to as being in ``dual (or multiple)
service.'' Towing vessels that want to conduct activities other than
just towing need to seek approval from the OCMI issuing the COI. The
Coast Guard provides guidance to all OCMIs to help ensure consistency
in regulatory enforcement and fairness for all vessels. In the example
of a towing vessel carrying cargo, that vessel meets the definition for
two vessel types and would have to meet additional requirements to
carry cargo on the towing vessel. Numerous parameters, including vessel
characteristics and the operations conducted by the vessel, would
determine under which vessel type the vessel would be inspected.
    For clarification, we amended our description of ``public vessel''
in Sec.  136.105 to match the term defined in 46 U.S.C. 2101. We also
point to the 46 U.S.C. 2101 definition for the meaning of the term in
Sec. Sec.  2.01-7, 15.535, and 15.610 of this chapter.
Definitions
    We received several hundred comments suggesting edits, deletions,
or additions to our proposed definitions in Sec.  136.110. The
discussion of changes made to the individual terms is as follows:
``Accepted Safety Management System''
    We deleted our proposed definition of ``Accepted Safety Management
System'' because we did not propose to use the term within the
regulatory text of the NPRM and do not use it in this final rule.
''Audit''
    We received a suggested amendment of the first sentence in our
definition of ``audit'' that would replace ``planned arrangements'' and
``arrangements'' with ``TSMS.'' One commenter suggested deleting the
phrase ``observing persons performing required tasks'' in paragraph
(1)(iii) of the proposed definition of ``audit,'' because there is no
definition for ``required task.''
    The Coast Guard partially agrees with the first comment. Not all
towing vessels will operate in accordance with a TSMS. Under Sec.
138.225, some vessels may meet TSMS requirements by complying with ISM
Code requirements of 33 CFR part 96 or some other SMS that the Coast
Guard has accepted and deemed to meet subchapter M TSMS requirements.
Rather than adopting the suggested edit, we deleted ``planned
arrangements'' in favor of ``requirements'' and have made clear what
requirements we intend to be covered by our Sec.  136.110 definition of
``audit'' by specifying ``TSMS or other applicable SMS planned
arrangements.''
    In response to the ``required task'' comment, the Coast Guard has
edited the definition of ``audit'' in Sec.  136.110 by replacing the
term ``required tasks'' with ``specific tasks within their assigned
duties,'' in paragraph (1)(iii) and ``specific tasks'' with ``their
assigned duties'' in paragraph (1)(ii). We used the term ``duties''
which is used in Sec.  138.220(b)(2) to describe training for
operational duties and duties associated with the execution of the
TSMS.
''Authorized Classification Society''
    We received a comment from a classification society requesting that
the Coast Guard delegate the inspection of towing vessels to authorized
classification societies. In response, as we discuss in more detail in
our TPO preamble section (IV.I), we have amended Sec.  139.110 to
clarify the distinction between audits and surveys. For the purpose of
audits, a recognized classification society meets the requirements of a
TPO and may work as a third-party auditor. For the purpose of surveys,
an authorized classification society meets the requirements of a TPO
and may work as a third-party surveyor. Further, we have amended Sec.
144.140 to include certain authorized classification societies as being
qualified to conduct a verification of compliance with design
standards. Therefore, we have incorporated the part 8 definition of
``authorized classification society'' into this final rule.
``Buoyant Apparatus'' or ``Inflatable Buoyant Apparatus''
    We received five comments, primarily from maritime companies and
professional associations, suggesting the addition of a definition for
the terms ``buoyant apparatus'' and ``inflatable buoyant apparatus''
because the terms are not defined in the proposed part

141. One maritime company suggested the following text for the
definition of ``buoyant apparatus'': ``Buoyant apparatus is flotation
equipment (other than lifeboats, life rafts, and personal flotation
devices) designed to support a specified number of persons in the
water, and of such construction that it retains its shape and
properties and requires no adjustment or preparation for use.'' The
same commenter offered the following text for the definition of
``inflatable buoyant apparatus'': ``Inflatable buoyant apparatus is
flotation equipment that depends on inflated compartments for buoyancy
and is designed to support a specified number of persons completely out
of the water.''
    The Coast Guard does not agree that it is necessary to include
definitions for commonly understood lifesaving apparatus in subchapter
M. These terms are already defined in 46 CFR, part 160--Lifesaving
Equipment, in Sec.  160.010-2. We did not make any changes from the
proposed rule based on these comments.
``Class II Piping Systems''
    We deleted this definition as this term is no longer used within
this subchapter.
``Cold Water''
    A maritime trade association had no objection to the proposed
definition of ``cold water,'' and understood its application in Table
141.305 regarding survival craft; however, the commenter was unaware of
any deficiency in the survival craft currently in use and requested
that only a single standard apply to the Great Lakes.
    The Coast Guard notes that the definition of cold water is
consistent with other regulations and existing Coast Guard policy (NVIC
7-91) lists the areas designated as cold water. While the Great Lakes
are generally considered cold water, several lakes are not designated
as cold water during certain months of the year. The Coast Guard
believes that specifying all of the Great Lakes as all cold water, year
round, would impose an unnecessary burden on those towing vessels which
operate seasonally when certain lakes are not designated as cold water.
However, this does not prevent a vessel owner or managing operator from
voluntarily carrying the equipment required on cold water at all times.
``Consideration''
    We deleted this term as the proposed definition was identical to 46
U.S.C. 2101 and the term was only used once in that context, so instead
we added a reference to 46 U.S.C. 2101 directly to our definition of
``assistance towing'' in Sec.  136.110.
``Crewmember''
    Two commenters felt that the term ``crewmember'' should be defined
as an individual who is listed on Form CG 735(T): Master's Report of
Seamen Shipped or Discharged, so as to avoid any misunderstanding
related to vendors who are onboard for maintenance or repair.
    The Coast Guard has revised the definition in Sec.  136.110 to
match an existing definition of ``crewmember'' in 46 CFR 16.105,
paragraph (2)(iv) of which would exclude vendors who are onboard to
conduct maintenance or repair work. Also, please note that the COI will
list crewmembers required to be onboard and persons in addition to the
crew that may be carried onboard the vessel.
``Disabled Vessel''
    One commenter noted that some dead ships can range up to 900 feet
in length and suggested that we clarify our definition of ``disabled
vessel'' and set some limit on a dead ship's size for purposes of
assistance towing. We note that a dead ship is a ship without the
benefit of mechanical or sail propulsion. The commenter's concern
appears based on Sec.  136.105 excluding vessels used for assistance
towing from subchapter M applicability. We defined ``assistance
towing'' to mean ``towing a disabled vessel for consideration.''
    The Coast Guard disagrees about the need to amend our proposed
definition of ``disabled vessel.'' We note that a dead ship would fit
our definition if the vessel regularly operated under its own power but
was temporarily disabled. The Coast Guard does not see a need to
include a specific length criterion for dead ships in its definition of
``disabled vessel'' because not all assistance towing vessels are the
same length or horsepower and the local COTP would assess the size and
number of towing vessels needed to assist a dead ship.
``Downstreaming''
    A maritime company suggested we insert ``attempting to land'' in
place of ``landing'' in our proposed definition of ``downstreaming.''
The Coast Guard acknowledges that downstreaming includes unsuccessful
as well as successful attempts to align with a barge or other object,
but has replaced the word ``landing'' with the words ``in order to
approach and land squarely on'' instead of the commenter's suggested
words. Also, we amended the definition by replacing the limited
reference to the ``end of the barge'' with ``a fleet, a dock, or
another tow.'' Finally, we inserted the words ``with the current'' to
describe downstreaming and to reflect the nature of our concern in
Sec.  140.610(e) where we require all exterior openings at the main
deck level to be closed when a towing vessel is downstreaming.
''Engine Room''
    In reviewing the definition of ``engine room'' in the NPRM, the
Coast Guard decided the word ``area'' was too broad; accordingly, we
have replaced ``area'' with ``space,'' which is commonly used and
understood in the maritime industry to refer to a specific room (also
see the definition for ``Accommodation space'' in Sec.  136.110).
``Element''
    After reviewing this definition, which as proposed, only applied to
safety management systems, we decided to delete it as the term
``element'' is also used within the subchapter with regard to surveys
and audits. Additionally, whenever the term is used, its meaning is
clear.
``Essential System''
    A company requested that we replace references to ``vessel'' with
``towing vessel'' in our definition of ``essential system.'' Another
commenter noted that the definition of ``essential systems'' is similar
to the term ``critical systems'' in the ISM code, suggesting that the
terms be aligned or at least cross-referenced for clarification. An
association whose members trade on all five of the Great Lakes noted
that the definition of ``essential system'' is very broad and needs to
be scaled back to systems that are truly essential so as to help ensure
consistent application, and that as written, it is difficult to
identify a shipboard system other than galley equipment that is not
essential.
    Regarding the first comment, the Coast Guard disagrees with the
suggestion because this entire subchapter pertains to towing vessels,
and we believe references to ``vessel'' in our definition of
``essential system'' clearly refer to towing vessel. We agree it is
important to distinguish ``vessel'' from ``towing vessel'' in the few
contexts in subchapter M where it is necessary, but we do not view our
definition of ``essential system'' as one of them. We made no change
from the proposed rule based on this first comment. In response to the
second comment, to better align our definition with critical systems in
ISM code, we added language to include critical systems identified in a
part 96-compliant SMS. As for scaling back

systems included, the Coast Guard disagrees. We believe that the
definition of ``essential system'' accurately covers those systems that
are required in subchapter M to ensure a vessel's survivability,
maintain safe operation, control the vessel, or ensure safety of
onboard personnel.
``Excepted Vessel''
    Many commenters, including an association and various towing
companies, supported the concept of ``excepted vessel,'' under which
towing vessels operating solely in fleeting and harbor services would
not be required to meet certain equipment requirements in part 143.
Several of the commenters suggested that the definition of ``excepted
vessel'' should be clarified or expanded to specify activities such as
moving vessels on and off drydocks or to and from cleaning docks. Also,
commenters stated the definitions should encompass the full range of
activities commonly performed by towing vessels in limited geographic
areas or harbor assist service and that failure to do so will
potentially endanger the economic viability of small to medium size
harbor/fleeting companies and consequently, the small to medium size
ports and industries they service. One towing company requested
clarification of the meaning of ``solely,'' because towing vessels
often engage in different types of towing operations throughout their
life-spans. An individual recommended that the term ``harbor assist''
in the definition of ``excepted vessel'' should be replaced by
``assistance towing'' to be consistent with the applicability exclusion
paragraph in Sec.  136.105(a)(2)(i) or with ``recreational assist.''
Also a company pointed to the need to improve our definition of
``excepted vessel'' in Sec.  136.110 specifically as it applies to
harbor assist vessels, a common term that it noted was used for vessels
that conduct ship assist activities helping larger vessels in and out
of port. One towing company opposed the concept of excepted vessels and
expressed the view that all towing vessels should meet the same
requirements. Another company also opposed exempting fleeting or
limited route vessels from the proposed provisions, because such
vessels may operate in close proximity to chemical plants and barge
fleets. The commenter warned that such vessels may have minimal safety
standards and operators may modify their vessels to benefit from the
proposed provisions. An individual provided examples of vessels that
work in fleeting areas but also travel many miles away from their base
of operations without proper equipment. One commenter pointed out that
the example of a limited geographic area (``a fleeting area for barges
or a commercial facility'') in the definition of ``excepted vessel''
conflicts with the proposed definition of ``limited geographic area.''
    The Coast Guard views the excepted vessel category as a valuable
tool to more precisely tailor regulations. We have amended the
definition of ``excepted vessel'' by removing the examples of limited
geographic area activities. The term ``limited geographic area'' is
defined in Sec.  136.110 and allows local COTP discretion to determine
limited geographic areas for her or his zone. Further, we note that, in
addition to certain system and equipment requirements in part 143,
excepted vessels are also not subject to fire protection requirements
in Sec. Sec.  142.315 through 142.330. In terms of clarifying the
definition, we did change it to make it clear that excepted vessels are
subject to subchapter M, but not to certain requirements in the
subchapter. Accordingly, we changed ``exempted'' to ``excepted'' when
describing action by the OCMI that would make a towing vessel excepted.
    As for the recommendation that we clarify or expand on the list of
specific activities within limited geographic area and harbor assist
service, the Coast Guard disagrees. Instead, we have removed the
examples of activities within a limited geographic area in favor of
leaving the discretion with the local COTP, as stated in the definition
of limited geographic area, and not have what some may read as an
exclusive list of examples in our definition of ``excepted vessel''
that references limited geographic area. However, additional guidance
beyond this rule may be developed to help the industry and public
understand how operating in a limited geographic area may impact the
equipment requirements if they are an ``excepted vessel''. The
definition of ``harbor-assist'' remains identical to the existing
definition in 46 CFR 10.107. Further, the definition of ``excepted
vessel'' also contains the provision for the cognizant OCMI to except
vessels based on reasons submitted by the vessel owner or managing
operator as to why the vessel does not need to meet certain system and
equipment requirements in parts 142 and 143 for the safe operation of
the vessel. We believe that the ability to except certain vessels from
specific equipment carriage requirements provides relief from the
potential economic burden on these vessel owners.
    As for clarifying the meaning of ``solely'' in our definition of
``excepted vessel,'' in Sec.  136.110, the Coast Guard sees no need to
do so. The definition says ``[u]sed solely,'' for any one or a
combination of the services listed. Therefore, subchapter M provisions
not required of excepted vessels would be required of a towing vessel
subject to subchapter M whenever it is conducting towing operations not
listed in the definition of ``excepted vessels,'' unless it has been
excepted by the cognizant OCMI. When a vessel is exclusively used in
one or more of the excepted activities it is not subject to certain
provisions of Subchapter M. However, if the vessel engages in
activities that are not excepted, then it may be subject to those
provisions even if this activity only occurs intermittently.
    In the NPRM, we proposed a definition for harbor-assist that is
identical to the existing definition in 46 CFR 10.107. To be excepted,
a vessel would need to be subject to subchapter M, and in the
applicability section, Sec.  136.105, we state that subchapter M is not
applicable to towing vessels ``used for assistance towing,'' so we
would not include ``assistance towing'' in activities for excepted
vessels. We also exclude towing vessels engaged in towing recreational
vessels for salvage, or transporting or assisting the navigation of
recreational vessels within and between marinas and marina facilities,
within a limited geographic area. Harbor assist and assistance towing
are two separate and distinct operations, both of which we have defined
in Sec.  136.110. We have made no changes from the proposed rule based
on these comments.
    We have amended the definition of ``excepted vessel'' to remove the
reference to ``restricted service'' and, as noted above, to remove
examples from the limited geographic area sentence that may have been
too narrowly focused and conflicting with the definition of limited
geographic area.
``Excursion Party''
    One commenter suggested that the term ``excursion party'' be
defined as ``a group visiting the vessel for no specific business
purpose.''
    The Coast Guard added a definition for ``excursion party'' in this
final rule; however we do not agree with the commenter's proposed
definition. As addressed in Sec.  136.245, any personnel (business,
personal, etc.) not authorized to be carried by the COI would be
considered by the OCMI when issuing an excursion permit.
``Flammable Liquid''
    One commenter suggested that we define ``flammable liquid'' and
``combustible liquid'' as they are

defined in 46 CFR 30.10-15 and 30.10-22.
    The Coast Guard partially agrees. The definitions in 46 CFR part 30
apply specifically to equipment required on tankers. The Coast Guard
believes that adding these definitions would not provide any additional
clarification for these rather common terms used in our fire protection
and machinery and electrical systems and equipment regulations in 46
CFR parts 142 and 143. However, we did modify part 143 to reference
part 30.
``Fleeting Area''
    We received comments from two maritime companies regarding our
proposed definition of ``fleeting area'' in Sec.  136.110. One
commenter suggested inserting the words ``or wait to load or unload
cargo'' after ``where individual barges are moored or assembled to make
a tow,'' and to insert ``towing'' before ``vessel'' when referencing
another vessel that will transport the barges in the tow to various
destinations.
    The Coast Guard agrees with the second recommendation, but not the
first. The inclusion of the term ``towing'' to the description of
``vessels'' makes the definition clearer. We disagree with the first
recommendation to insert the words ``or wait to load or unload cargo''
because here we are defining ``fleeting area'' which is focused on
making a tow, as opposed to ``limited geographic area'' which may cover
more activities. Reflecting the definition of ``limited geographic
area,'' we also inserted, ``as determined by the local Captain of the
Port (COTP),'' after a reference to a limited geographic area in our
``fleeting area'' definition.
``Fully Attended''
    We deleted the definition of ``fully attended'' because we did not
use the term in this final rule, nor did we use the term within the
regulatory text of the NPRM.
``Harbor-Assist''
    A maritime company suggested that for our definition of ``harbor-
assist,'' we add ``shift'' to ``dock, undock, moor, or unmoor,'' and
tie the escort of a vessel with limited maneuverability to these
actions by removing the disjunctive ``or'' we have placed between those
activities, and to add two more activities at the end of the definition
``to shift or tow barges within a limited geographic area; or to
respond to an emergency situation or pollution event involving towing
vessels, vessels with limited maneuverability, or barges.'' Another
commenter agreed and also felt that the definition should include
inland harbor and fleet vessels.
    The Coast Guard disagrees. Regarding the recommendation to delete
``or'' and restrict both ``dock, undock, moor, shift, or unmoor,'' and
``escorting'' to towing vessel actions involving a vessel with limited
maneuverability, we do not see a need for this change to this
definition, which we adopted word-for-word from 46 CFR 10.107. For a
vessel to be escorted, the vessel needs some independent maneuvering
capability, which is not be true of all vessels a towing vessel may
dock, undock, moor, or unmoor. We do not need to add ``shift'' to the
definition because we believe any shifting is already captured by the
words ``maneuvers to dock, undock, moor, or unmoor a vessel.'' Also,
there is no need to add shifting barges in a limited geographic area
nor do we wish to add towing barges in a limited geographic area to
this definition. While not self-propelled, a barge would be included in
the definition's reference of a vessel, and we do not view harbor-
assist as encompassing the full range of activities covered by
``towing.'' Finally, we do not see a need to add responding to an
emergency situation or pollution event involving towing vessels,
vessels with limited maneuverability, or barges to our definition of
``harbor-assist.'' Both of these activities are already included within
our ``excepted vessel'' definition. We have made no changes from the
proposed rule based on these comments; our subchapter M ``harbor-
assist'' definition remains consistent with the 46 CFR 10.107
definition.
``Horsepower''
    A professional association and private citizen expressed support
for our proposed definition of ``horsepower'' which is that stated on
the COI which reflects ``the sum of the manufacturer's listed brake
horsepower for all installed propulsion engines.'' We made no changes
from the proposed rule based on these comments.
``Independent''
    One commenter suggested revising or deleting the definition of
``independent'' because it appears only in Sec. Sec.  143.300 and
143.435.
    Our proposed definition of ``independent'' in Sec.  136.110 is and
was intended to be focused on equipment. We agree that it is not the
appropriate definition for the use of ``independent'' outside of part
143, Machinery and Electrical Systems and Equipment. In response to
this comment, we have removed the definition from Sec.  136.110 where
it would have been applicable to all of subchapter M and have placed it
in part 143's definition section, Sec.  143.115, where it is only
applicable to that part. We believe the definition is useful as limited
to that part and therefore, we have only restricted, and not deleted,
the definition.
    We use the word ``independent'' in a different context when we
describe TSMSs and TPOs, as in our definition of ``audit'' and ``TPO''
in Sec.  136.110, and Sec. Sec.  138.205(b)(4), 138.310(d)(4),
139.115(b)(1) and 139.120(p). In that context we will use the common
definition of the term--to be free from the influence, control, or
determination of another or others.
''Inland Waters''
    One commenter suggested deleting the proposed definition for
``inland waters'' because it is not defined in other 46 CFR and would
be confusing when considering classes of vessels. The commenter felt
that the terms ``Inland waters, excluding Western Rivers'' can be used
instead.
    The Coast Guard disagrees. ``Inland waters'' is defined in 46 CFR
10.107 and our subchapter M proposed definition aligns with that
existing definition. To address the reach of this and other Sec.
136.110 definitions, we have inserted the introductory text of ``As
used in this subchapter'' in Sec.  136.110, which reflects our initial
intent that definitions in that section have limited applicability.
Also, in subchapter M we only use the term ``inland waters'' once, in
the definition of ``Western Rivers,'' and do not view it as generating
confusion regarding classes of vessels. We have made no changes from
our proposed definition of ``inland waters'' based on this comment.
``International Voyage''
    We received comments from two commenters requesting that the
proposed definition of ``international voyage'' not include Canadian
waters that are transit waters between Alaska and other States. The
commenters noted that towing vessels do not always make port calls in
Canada during passage and are not considered international voyages and
subject to SOLAS.
    The Coast Guard does not see a need to amend our definition of
``international voyage.'' Under our definition, towing vessels
transiting directly from a U.S. port in the contiguous 48 states to the
state of Alaska or the state of Hawaii would not be considered on an
international voyage for purposes of subchapter M because they would
not be going to a port outside the United States.

''Lakes, Bays, and Sounds''
    We received two comments suggesting the proposed definition of the
term ``lakes, bays, and sounds'' be clarified to state that the
operations on Kentucky Lake are not to be included in the current
definition of ``lakes, bays, and sounds.'' Another commenter suggested
that the definition is too broad to include lakes, bays, and sounds in
inland river systems, and should be revised to exempt lakes, bays, and
sounds that are part of the inland or Western River systems.
    The Coast Guard uses the term ``lakes, bays, and sounds'' in Sec.
136.230 as one of a number of major headings under which each area of
operation--referred to as a route--is described on a towing vessel's
COI. With the exception of ``rivers,'' ``Lakes, bays, and sounds,'' is
the least severe of the routes. Our definition matches that used for
small passenger vessels in subchapter K (46 CFR 114.400) and small
passenger vessels in subchapter T (46 CFR 175.400). The Coast Guard
does not intend to create exemptions for all types of inland towing
operations, or to provide exemptions for particular areas without
cause. We note, however, that under Sec.  136.230 the OCMI may consider
route-specific requirements of subchapter M when designating a
permitted route. We have not made a change from the proposed rule based
on these comments.
``Limited Geographic Area''
    One commenter asked for further definition of the term ``limited
geographic area.''
    Our definition of ``limited geographic area''--``a local area of
operation, usually within a single harbor or port''--is intended to be
flexible enough to reflect the wide range of local operations. The
local COTP has the discretion to determine limited geographic areas for
his or her COTP zone. We do use the term ``limited geographic area'' as
a factor in our definition of ``excepted vessel,'' but we believe it is
appropriate to not impose certain requirements, such as for additional
fire-extinguishing equipment, on vessels we identify as excepted
vessels, or impose less rigid lifesaving equipment requirements on
vessels that operate in a limited geographic area. We assess excepted
vessels and certain vessels operating in a limited geographic area as
presenting a reduced risk with respect to certain subchapter M
requirements.
``Major Conversion''
    One commenter requested that we change our definition of ``major
conversion.'' First, the commenter would establish a threshold up front
that all the factors discussed must meet--that changes result in
``essentially a new towing vessel''--while also leaving that same
standard in the last (``otherwise'') factor. Second, the commenter
would move our reference to a determination by the Coast Guard to the
end of the definition. And third, the commenter would limit the
``substantially prolonging the life of the towing vessel'' factor by
expressly excluding ``the replacement of propulsion engines'' from that
factor.
    The Coast Guard agrees with the recommendation that we move our
reference to a determination to the end of our definition of ``major
conversion.'' This change makes our definition more consistent with the
statutory definition in 46 U.S.C. 2101 (14a) and our existing 46 CFR
28.50 definition in subchapter C for uninspected vessels. We also
clarified that reference from vaguely stating ``as determined by the
Coast Guard'' to ``as determined by the Commandant.'' This change
better aligns the definition with the phrasing used in existing text.
    We received comments from professional associations, maritime
companies, and other companies who expressed concern over the phrase
``substantially prolongs the life of the vessel'' in the proposed
definition of major conversion. Commenters felt that the definition
should be clarified to explain that routine activities like maintenance
or part replacement are not considered major conversions, but only
those activities that would result in the converted vessel becoming a
new vessel. Two commenters, a private citizen and maritime company,
requested examples of what is considered a major conversion. Another
maritime company suggested that the term, as it is currently proposed,
would apply ``new vessel'' requirements to existing vessels, and
discourages the maintenance of or investment in existing towing
vessels.
    We see no reason to adopt the commenter's two other suggested
changes that deviate from the statutory definition. The first change
would introduce an unexplained redundancy and the second would
expressly exclude the replacement of propulsion engines from
consideration of actions that substantially prolongs the life of the
vessel. As reflected above, based on these comments, we have revised
our definition to make it consistent with existing definitions in 46
U.S.C. 2101(14a) and 46 CFR 28.50 of subchapter C, and we did not adopt
the commenters' two other suggested changes. The Coast Guard believes a
replacement of propulsion engines is normally undertaken to prolong the
service life of a vessel, and therefore fits the definition of ``major
conversion.'' To match the wording in 46 CFR 28.50, we changed ``Coast
Guard'' to ``Commandant'' and added part 28's definition of
``Commandant'' to Sec.  136.110. Major Conversion determinations are
made by the Coast Guard Marine Safety Center on a case-by-case basis.
``Major Non-Conformity''
    One commenter suggested the following text for the definition of
``major non-conformity'' which specifically identifies deviations as
being from the safety management system and replaces our reference to
the lack of effective and systematic implementation of the TSMS as
being included as a major non-conformity, to references to items that
would be considered a more significant breakdown or failure of the SMS:
``Major Non-Conformity means an identifiable deviation to the safety
management system which poses a serious threat to personnel, vessel
safety, or a serious risk to the environment; where a large number of
non-conformities exist in an area or where similar non-conformities
exist throughout the company or vessel then this demonstrates a more
significant breakdown or failure of the safety management system.''
    The Coast Guard has simplified its definition of ``major non-
conformity'' to include the term ``non-conformity''; by referring to
``non-conformity'', we are including a failure to conform to the SMS.
Even though the definition in 33 CFR part 96, our regulations
implementing SOLAS and ISM Code provisions for safety management
systems, includes an example of a lack of effective and systematic
implementation, we have deleted that language from the definition in
Sec.  136.110. We did not agree with the suggested definition, which
could be read as creating an additional standard for a ``more
significant breakdown.''
``New Towing Vessel''
    One commenter suggested that we remove the following factor in our
proposed definition of ``new towing vessel'': Towing vessels that
underwent a major conversion initiated on or after the effective date
of our final rule.
    The Coast Guard disagrees with this recommended change to our
definition of ``new towing vessel.'' Standards for new vessels are
sometimes set higher than for existing vessels as a means of ensuring
improved safety standards over

time without imposing undue costs on existing vessels. If we left major
conversions out of the definition of new vessels, then we would provide
incentive for existing vessels to undergo major conversions to avoid
having to meet new vessel standards. Granting existing vessels the
status of being ``grandfathered'' is a valuable regulatory approach,
but factoring major conversions into our definition of ``new vessels''
provides a means of controlling a potential abuse of ``grandfathered''
status and is consistent with other 46 CFR subchapters. We have not
made any changes from the proposed rule based on this comment.
    However, upon further review of the definition, we determined that
it should be amended for other reasons. As proposed, the definition was
based on the date the vessel was contracted for or the date the keel
was laid. More often than not, these will be two separate dates which
could lead to confusion as to whether or not a vessel is a ``new towing
vessel.'' We amended the definition to base the determination on the
date the keel was laid or the vessel is at a similar stage of
construction in order to account for those instances where a vessel
might be built in a modular mode of construction. We also removed
paragraph (3) of the definition regarding vessels built without a
contract because we viewed it as unnecessary given our removal of a
reference to a contract in paragraph (a).
    The second reason for amending the definition is to ensure that
owners, designers, and builders have sufficient time to adapt and
incorporate the requirements applicable to new vessels into the design
and construction of a vessel. As proposed, the date for a new vessel
was 30 days after the regulation publication date. In reviewing a
commenter's request for more time to comply with the final rule, we
concluded that 30 days is too short a time period. It would be very
difficult and costly to make changes in line with the ``new vessel''
requirements in those instances where the design of a vessel is almost
complete. We have determined that for smooth transition and
implementation, an additional year is needed, and we amended the
definition accordingly.
``Objective Evidence''
    One commenter recommended we add records of an approved third-party
organization as another example in our definition of ``objective
evidence'' in Sec.  136.110.
    The Coast Guard agrees with this suggested change and has amended
the definition accordingly. We already list classification society
reports as an example, and would consider reports or records from a TPO
as a similarly appropriate example reflecting an independent
assessment.
``Pressure Vessel''
    One commenter suggested we amend our definition of ``pressure
vessel'' to simply refer to closed containers designed to hold gases,
liquids or a combination at a pressure substantially different from
ambient pressure--instead of just ``under pressure.'' Another commenter
suggested adding the following text as a definition for ``heating
boiler'': ``An enclosed steel or cast iron container that uses an
energy source to heat water (or make steam) that is sent through heat
radiating devices in the machinery space to heat a towing vessel.''
    The Coast Guard agrees with the comment regarding pressure being
substantially different from ambient pressure and in response inserted
the words ``greater than atmospheric pressure'' at the end of the
definition. We also agreed with the need to incorporate language to
include boilers so we broadened the definition of ``pressure vessel''
to include ``unfired'' and ``fired'' pressure vessels which incorporate
boilers.
``Random Selection of a Representative Sampling''
    One commenter suggested the need for defining ``random selection of
a representative sampling'' for better consistency in the auditing
process.
    We do not agree that a specific definition is needed for ``random
selection of a representative sampling.'' We feel that ``random
selection of a representative sampling'' is a common safety management
system and auditing term that should be recognized and understood by
any ISO-9001-trained internal or external auditor. In a related
external audit provision in Sec.  138.410(f), we removed a vague
reference to samples having to be statistically valid.
``Recognized Classification Society''
    We shortened the definition of ``recognized classification
society'' by focusing on the core of the definition: A classification
society recognized by the Coast Guard in accordance with 46 CFR part 8.
``Recognized Hazardous Conditions''
    We deleted the definition of ``recognized hazardous conditions''
because we do not use the term in this final rule, nor did we propose
to use it in the regulatory text of the NPRM.
``Rescue Boat''
    One commenter noted that ``skiff'' is referenced in Sec.
140.420(d)(4), which contains a training requirement if the skiff is
``listed as an item of emergency equipment to abandon ship or man
overboard recovery'' and that ``rescue boat'' also appears in Sec.
140.420. The commenter recommends that if a rescue boat is a separate
craft from a skiff, as our use of the two terms in Sec.  140.420
suggests, then we should define ``rescue boat'' in Sec.  136.110 in
addition to having defined ``skiff'' there.
    The Coast Guard agrees with the recommendation that we add a
definition of ``rescue boat'' to Sec.  136.110. We do consider a rescue
boat as a separate craft from a skiff. We have added the same
definition of ``rescue boat'' in Sec.  136.110 that appears in three
existing Coast Guard regulations. This definition distinguishes the
dedicated purpose of a rescue boat--to rescue persons in distress and
to marshal survival craft--from the general nature of a skiff, a small
auxiliary boat carried onboard a towing vessel that might be used in
emergency situations.
``Replacement in Kind''
    We have added a new definition to Sec.  136.110 for the term
``Replacement in kind'' which was undefined in the NPRM but appeared
several times in part 143. ``Replacement in kind'' generally means
replacing a failed component with the same component, or a part with
the same technical specifications as the original design. Replacements
in kind may normally be accomplished by the crew, or a shipyard, as
part of routine maintenance or repairs, and may not require
notification to the OCMI.
``Safety Management System''
    Two commenters recommended inserting the following 11 italicized
words in our proposed definition of ``Safety Management System'':

    Safety Management System means a systematically structured and
documented system enabling the owner or managing operator and towing
vessel personnel to identify and manage interrelated process and
effectively implement the owner or managing operator's safety and
environmental protection policies and that is routinely exercised
and audited in a way that ensures the policies and procedures are
incorporated into the daily operation of the vessel and company.

    In addition, one commenter recommended replacing the word
``audited'' with ``evaluated'' in the above definition.
    The Coast Guard partially agrees with the proposals to change this
definition.

We have amended the definition by adopting a modified version of our 33
CFR part 96 definition that identifies those enabled by the SMS and the
purpose of the SMS with respect to subchapter M. We disagree with
changing the term from ``audited'' to ``evaluated'' as an audit is a
clearly defined and recognized activity with respect to safety
management systems.
``Survey''
    One commenter suggested that the difference between ``audit'' and
``survey'' needs to be clarified in Sec.  136.110, as well as with
respect to the Coast Guard option under proposed Sec.  136.150 and the
TSMS option under proposed Sec.  136.205. Another commenter noted that
these two terms, in addition to ``inspection'' are used interchangeably
in the NPRM, as are the words ``auditor, inspector, and surveyor.''
There were also comments about the need to clarify the frequency of
audits, inspections, and surveys, and which ones may be conducted by
third parties.
    The Coast Guard believes that our definitions of these two terms
are clearly distinguishable. Our definition of ``survey'' in Sec.
136.110 focuses on compliance with subchapter M and other authorities--
``an examination of the vessel, its systems and equipment to verify
compliance with applicable regulations, statutes, conventions, and
treaties.'' Our definition of ``audit'' in Sec.  136.110 is more
focused on systems set up to ensure that compliance. Neither proposed
Sec.  136.150, Annual and periodic inspections, nor proposed Sec.
136.205, which describes the COI, refer to audits or surveys.
    Regarding the word ``inspection,'' we did not define that term
which applies to all vessels subject to subchapter M because they are
all ``subject to inspection'' under 46 U.S.C. 3301. In this rule, we
primarily use the word ``inspection'' to distinguish a towing vessel
that has selected the option of an annual inspection by the Coast Guard
instead of a TSMS option under which surveys and audits are conducted.
But regardless of the option selected, under proposed Sec. Sec.
136.140 and 136.145 the Coast Guard would conduct inspections for
certification on all vessels seeking to obtain or renew a COI. An
inspection is similar to a survey in that both involve an examination
of a vessel to determine whether it is in compliance with applicable
regulations or other legal authorities. In reviewing proposed
Sec. Sec.  136.140 and 136.145, however, we reorganized these
requirements and moved then into subpart B, Certificate of Inspection,
as Sec. Sec.  136.210 and 136.212.
    We believe this response should clarify what we mean by the use of
these terms but knowing the frequency of these activities may also
help. Section 137.200 identifies the frequency of inspections
associated with the Coast Guard inspection option. For vessels under
the TSMS option, external and internal surveys and audits are required.
Sections 137.205 and 137.210, respectively, identify the frequency of
surveys under the external and internal survey programs. Finally,
Sec. Sec.  138.310 and 138.315, respectively, identify the frequency of
external and internal audits.
``Third-Party Organization''
    We received comments suggesting the need to clarify or remove our
proposed definition of ``third-party organization.'' The commenter
suggested that the term is inconsistent with our repeated use of the
proposed term ``approved third-party organization'' in part 139 and
would be redundant if we adopted his recommendation to amend our
proposed definition of ``approved third party'' to make it clear it
only refers to TPOs. One commenter suggested converting our proposed
definition of ``approved third party'' in Sec.  136.110 to a definition
of ``approved third party organization'' and to add ``organization'' to
the definition so the term ``means a third party organization approved
by the Coast Guard in accordance with part 139 of this subchapter.''
    The Coast Guard agrees that our proposed definitions of the terms
``approved third party'' (ATP) and ``third-party organization'' (TPO)
may cause confusion, so we deleted the term ATP and modified any
references to approved third-party surveyors or auditors to make clear
that such surveyors or auditors would be from a third-party
organization or TPO. Also, we deleted the word ``approved'' used in
front of TPO because by definition, TPOs are approved. Our definition
of third-party organization in this final rule makes it clear that the
organization is approved by the Coast Guard to conduct independent
verifications to assess whether TSMSs or towing vessels comply with
applicable requirements contained in this subchapter. Also, we have
amended Sec.  139.115(b) to make that approval process clearer and
replaced a reference to an organization having to meet subchapter M
requirements with one to expressly include the standard of meeting part
139 requirements for TPOs.
    This comment also caused us to notice that our TPO definition needs
to be amended to better reflect the work being done by the TPO. We
added the words ``assess whether'' to the definition of ``TPO.''
``Tow''
    One company recommended that we define ``tow'' as a vessel or
vessels being moved by a towing vessel in contrast to our proposed
definition that identifies the towing vessel as being part of the tow
which would also include one or more barges or a vessel not under its
own power.
    The Coast Guard concurs with the need to clarify that tow refers to
what the towing vessel is moving--be it another vessel, barge, or some
other object. We have revised our definition to read ``Tow means the
barge(s), vessel(s), or object(s) being pulled, pushed or hauled
alongside a towing vessel.'' This is consistent with our use of the
term as a noun in our rule (e.g., in Sec.  140.625, ``the movement of a
towing vessel and its tow''). Reflecting this definition, in Sec.
140.805 we added ``or objects'' to barges and vessels when describing
what may make up a tow.
''Towing Safety Management System (TSMS)''
    On reviewing the comments, the Coast Guard decided to add a
definition of TSMS in Sec.  136.110 rather than just rely on the
information contained in part 138 on TSMS compliance.
''Towing Safety Management System (TSMS) Certificate''
    We received several comments suggesting two separate definitions of
the TSMS certificates be added: One for the owner or managing operator
and one for each of the towing vessels found to be in compliance with
the TSMS.
    The Coast Guard has not defined ``TSMS certificate'' and does not
agree that two separate definitions should be added or that a separate
certificate for the company and the towing vessel needs to be issued.
TSMS certificates are issued to the owners or managing operators and a
list of vessels covered by the TSMS must be maintained, as described in
Sec.  138.305.
``Travel Time''
    Four commenters, including maritime companies and a professional
association, suggested deleting the proposed term ``travel time''
because it does not appear anywhere else in the regulation. One
commenter suggested that the proposed term needs to be amended to
clarify the application to daytime operators who commute back and forth
to work, not travel to a large commercial tug/barge unit that operates
like a self-propelled vessel. Conversely, other commenters suggested
that the

definition should not include travel back and forth. One company
asserted that if the travel time is not included, crewmembers that do
not live in close proximity to work will use the majority of their
hours traveling.
    The Coast Guard agrees that our definition of ``travel time''
should be deleted from the final rule because we do not use that term
in subchapter M.
''Unsafe Condition''
    One commenter, citing Sec.  137.325(d), asked the Coast Guard to
create a good definition of an ``unsafe condition'' that can be
consistently applied by companies, auditors, and surveyors, as well as
the Coast Guard.
    The Coast Guard agrees with the commenter's request and has added a
definition of ``unsafe condition'' to Sec.  136.110, which includes
observation of a major non-conformity on board a vessel.
``Unsafe Practice''
    One commenter suggested that in the definition of ``unsafe
practice'' the list of items that may be subject to significant risk of
harm be supplemented by adding ``and the vessel'' after ``property.''
    The Coast Guard disagrees. A vessel belongs to an organization or
person and, therefore, is included by the word ``property.'' We made no
changes from the proposed rule based on this comment, but recognizing
it can be bad practice to do something even once, we inserted reference
to a single action, in addition to a habitual or customary action.
``Western Rivers''
    We received several comments, mostly from maritime companies,
regarding the proposed definition of ``Western Rivers.'' Several
maritime companies suggested that the definition should be consistent
with the one in 33 CFR 164.70, which is identical except for it adds
waters specified by 33 CFR 89.27 ``and such other, similar waters as
are designated by the COTP.'' Commenters also asked that waterways
mentioned in 33 CFR 89.27 be included. It was suggested that the
consistency in definitions will help avoid new regulations for those
vessels operating on the Gulf Intracoastal Waterway. One commenter
noted that the proposed definition of ``Western Rivers'' is
inconsistent with the definition in the TSAC report and current
regulations. A trade association believed the change in the definition
for ``Western Rivers'' would increase the burden on mariners. A
maritime company noted that the NPRM lacks a definition, or a route
description in Sec.  136.230, that covers vessels operating in the
Inland areas of the waterway system within the Sea Buoy system, which
includes the Gulf Intracoastal Waterway. The commenter suggested that
Western Rivers be defined to include those vessels operating within the
Sea Buoy system.
    Based on these comments, the Coast Guard has decided to adopt the
existing 33 CFR 164.70 definition of ``Western Rivers'' which applies
to navigation safety regulations for towing vessels.
    This is similar to the definition TSAC used in its September 7,
2006 report (USCG-2006-24412-0004). Their definition ended with ``and
waters connecting or tributary thereto'' instead of referencing waters
designated by the COTP. Waters specified by 33 CFR 89.25 and 89.27, for
inland navigation rule purposes, include all of the connecting and
tributary waters specified in TSAC's definition, and our addition of
the 33 CFR 89.27 reference includes the Gulf Intracoastal Waterway in
the definition. Also, making our definition consistent with the one in
33 CFR 164.70 allows COTPs to designate similar waters.
    Multiple factors in 33 CFR 62.27 are considered in the positioning
of safe water marks, which are also called ``sea buoys.'' These factors
may cause them to be placed seaward or shoreward of demarcation lines.
And, while each safe water mark has a plotted position in the Light
List available via 33 CFR 72.05-10, unlike demarcation lines in 46 CFR
part 7, there are no lines associated with safe water marks. Therefore,
we have decided to use the term ``navigational demarcation lines''
currently used in 33 CFR 164.70.
``Workboat''
    One commenter suggested we amend our definition of ``workboat'' to
include ``vessels undergoing cleaning or repair,'' besides equipment,
as things that the workboat pushes, pulls, or hauls alongside within a
worksite.
    The Coast Guard disagrees with the proposed change. However, we
have amended the definition of ``workboat'' to remove the specific
listing of things being towed. We believe that the revised definition
of workboat and our definition of worksite--which already included a
list of certain activities which we amended to reflect the movement of
equipment but specifically excluded the movement of barges carrying oil
or hazardous material--provide sufficient flexibility to the OCMI to
cover operations not specifically listed.
``Worksite''
    One commenter suggested that we amend the definition ``worksite''
so all areas within which workboats are operated over short distances
for dredging, construction, maintenance, or repair work, including
shipyards, owner's yards, and lay-down areas used by marine
construction projects, would not require OCMI designation as worksites.
Other worksites may be specified by the OCMI. Further, a maritime
company suggested adding the terms ``cleaning facilities, fleeting
areas'' to the definition of ``worksite.''
    The Coast Guard disagrees with these recommendations. We believe it
is appropriate for the cognizant OCMI to designate worksites based on
the factors and activities listed and their possible impacts on other
waterway users. Therefore, we have decided not to adopt the expanded
definitions being suggested here. We have made no changes from the
proposed rule based on these comments.
Options for Obtaining a Certificate of Inspection
    A commenter opposed the option of obtaining certification by annual
Coast Guard inspections and recommended deletions of provisions in
proposed Sec. Sec.  136.130, 136.140, 136.145, 136.150, 136.165, and
136.170.
    The Coast Guard recognizes that some in the industry view the
option for Coast Guard traditional inspections as not having a role in
the future of the regulation of towing vessels. We believe that the
development of and adherence to a TSMS that is tailored to a company's
unique operations and that provides for an authoritative reference for
all members of the organization improves safety for the company's
vessels. As the TSAC Economic Analysis Working Group Report (USCG-2006-
24412-0007) stated, the costs to a small company to implement and
maintain an SMS may be more difficult to absorb than it is for a large
company. These regulations do not preclude any towing vessel company
from adopting a safety management system. However, the structure of
subchapter M provides towing vessel companies with flexibility in how
to comply with this subchapter.
    With respect to the various sections mentioned by this commenter,
we have made changes in this final rule. Proposed Sec.  136.130 has
been revised and retitled to better depict the purpose of the options
it presents for documenting compliance with the requirements of this
subchapter and to specifically note that a Certificate of Inspection is
obtained following a Coast Guard inspection. We have moved proposed
Sec. Sec.  136.140 and 136.145 into subpart B of part 136--Certificate
of Inspection--as amended Sec.  136.210 and

new Sec.  136.212. Also, we merged proposed Sec. Sec.  136.150 and
136.165 into a new Sec.  137.200 to delineate the processes under the
Coast Guard inspection option from the TSMS option processes in part
137. The proposed part 137 had laid out the TSMS procedures but was
silent on the Coast Guard option. Further, we redesignated and amended
proposed Sec.  136.170 as new Sec.  136.202.
    A commenter requested an appeal process to permit the immediate
review of an inspector's determinations.
    The Coast Guard notes that, as we proposed, the appeals process is
described in Sec.  136.180. Further, this final rule contains
amendments to 46 CFR part 1 that institutes a process for appealing the
decisions of TPOs acting on behalf of the Coast Guard.
Requirements for Existing Vessels During Delayed Implementation
    In response to comments regarding the cost of requirements in parts
140 through 144, and concern about being able to meet those
requirements soon after the rule is make effective, we delayed