Coast Guard, DHS.
Interim final rule; request for comments.
The Coast Guard is issuing an interim final rule to apply changes made by the 2016 final rule,
This interim final rule is effective March 28, 2018. Comments and related material must be submitted to the online docket via
You may submit comments identified by docket number USCG–2017–1060 using the Federal eRulemaking Portal at
For information about this document, call or email LT Alexandra Miller, Office of Design and Engineering Standards, Lifesaving and Fire Safety Division (CG–ENG–4), Coast Guard; telephone 202–372–1356, email
This interim final rule harmonizes fire protection requirements regarding portable and semi-portable fire extinguishers on inspected towing vessels with the requirements for other commercial vessels in Title 46 of the Code of Federal Regulations (CFR), including uninspected towing vessels. The Coast Guard may regulate fire protection equipment on inspected towing vessels under statutory authority found in 46 U.S.C. 3301 and 3306, which was delegated by the Secretary of Homeland Security to the Coast Guard in DHS Delegation Number 0170.1(II)(92).
The Coast Guard issues this rule without prior notice and opportunity for public comment. Section 553(b)(B) of the Administrative Procedure Act provides an exception from notice and comment requirements when an agency finds that notice and comment are “impracticable, unnecessary, or contrary to the public interest.” In accordance with 5 U.S.C. 553(b)(B), the Coast Guard finds that notice and comment are unnecessary because this rule would not require a substantive change of fire protection equipment on towing vessels, and would align with regulatory requirements already met by all existing towing vessels. This rule will revise 46 CFR subchapter M to require inspected towing vessels to meet fire protection equipment requirements that already apply to other commercial vessels, including uninspected towing vessels. The Coast Guard updated these standards in its 2016
Under existing regulations, towing vessels must carry Coast Guard-approved fire extinguishers.
This rule does not change the number of extinguishers required, and an extinguisher that displays the USCG Type/Size rating may still be used if it meets all other requirements. This rule adds a grandfathering clause in section 142.231(a), identical to one that appears in 46 CFR 25.30–80 as a result of the
In addition, this rule revises maintenance requirements for fire extinguishers. Subchapter M had required extinguisher maintenance in accordance with the industry consensus standard NFPA 10, which requires certified personnel to conduct annual fire extinguishing equipment maintenance. NFPA 10 also requires monthly visual inspections and documentation by certified personnel. Section 142.240 provides for some departures from NFPA 10 to: Allow for the acceptance of state and local licenses for inspections; allow an owner, operator, or qualified crewmember to complete monthly inspections (as opposed to certified personnel); and reduce the requirements of the annual inspection for non-rechargeable extinguishers. These modifications are consistent with those put into place for other commercial vessels, including uninspected towing vessels, by the
Finally, this rule makes non-substantive changes such as replacing the term “hand-portable” with “portable.” It also updates the edition of NFPA 10 from 2007 to the 2010 edition used in the
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on these statutes or Executive orders.
Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”), directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”
The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of E.O. 12866. As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771.
This interim final rule (IFR) will update the fire safety rules in subchapter M to incorporate changes brought about by the publication of the
Table 1 presents a summary of the impacts of this rule.
The affected population consists of the U.S. flagged towing vessels subject to the provisions of subchapter M. The RA performed for the
This interim final rule contains 29 changes to the fire protection regulations in subchapter M. A summary of these changes follows:
• Made eighteen minor edits to the regulatory text to harmonize subchapter M text with
• Revised five paragraphs to either consolidate or edit existing text for clarity, or delete text that is no longer needed.
• Added three new provisions to increase industry options to comply with NFPA 10. An example is to allow for the acceptance of state and local licenses for inspections.
• Added a new paragraph to allow equipment beyond the regulatory minimum.
• Added a new paragraph to allow continued use of existing dual-label equipment.
• Added a new provision that restates current recordkeeping requirements.
Overall, the Coast Guard has not identified any costs associated with these changes. The changes and economic impacts are described in Table 2.
The primary benefit of this interim final rule is to align the fire safety rules in subchapter M with the changes brought about by the publication of the
When creating this interim final rule, the Coast Guard considered several alternatives. The previous analysis represents the preferred alternative, which will align fire protection requirements in subchapter M with the
The preferred alternative is to update the fire safety rules in subchapter M to match changes made by the
In this alternative, the Coast Guard would take no action regarding the differences between 46 CFR part 25 and 46 CFR part 142. As this would impose an inconvenience to industry by not removing the outdated labeling requirement, we reject this alternative.
This option would remove the outdated labeling requirement for fire extinguishers, but would not provide for any flexibility in applying the requirements of NFPA 10. The benefit of this alternative is the harmonization of text with other fire protection regulations, including those that already apply to uninspected towing vessels. This alternative would not add any new costs, as NFPA 10 is referenced in subchapter M, but would not offer any new compliance options.
Under the Regulatory Flexibility Act, 5 U.S.C. 601–612, we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
Our economic analysis concluded that this interim final rule will have no cost impact and will not affect the small entities that own and operate the towing vessels that comprise the affected population, described above. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule will have a significant economic impact on it, please submit a comment at the address under
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104–121, we offered to assist small entities in understanding this rule so that they could better evaluate its effects on them and participate in the rulemaking. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247).
This rule calls for no new collection of information or modification of an existing collection of information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501–3520.
A rule has implications for federalism under Executive Order 13132 (“Federalism”) if it has a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under Executive Order 13132 and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132. Our analysis is explained below.
It is well settled that States may not regulate in categories reserved for regulation by the Coast Guard. It is also well settled that all of the categories covered in 46 U.S.C. 3306, 3703, 7101, and 8101 (design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of vessels), as well as the reporting of casualties and any other category in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, are within the field foreclosed from regulation by the States.
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531–1538, requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630 (“Governmental Actions and Interference with Constitutionally Protected Property Rights”).
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, (“Civil Justice Reform”), to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045 (“Protection of Children from Environmental Health Risks and Safety Risks”). This rule is not an economically significant rule and will not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”), because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211 (“Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use”). We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
The National Technology Transfer and Advancement Act, codified as a note to 15 U.S.C. 272, directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
NFPA 10, Standard for Portable Fire Extinguishers, 2010 Edition, effective December 5, 2009. This standard applies to the selection, installation, inspection, maintenance, recharging, and testing of portable fire extinguishers.
Consistent with 1 CFR part 51 incorporation by reference provisions, this material is reasonably available. Interested persons have access to it through their normal course of business, may purchase it from the organization identified in 46 CFR 136.112(h), or may view a copy by means we have identified in that section.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01, Revision (Rev) 1, and Commandant Instruction M16475.lD (COMTINST M16475.1D), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321–4370f), and have concluded that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble.
This interim final rule (IFR) is categorically excluded under paragraphs (34)(a), (d), and (e) of Figure 2 in COMDTINST M16475.1D, and also under paragraph 6(a) of the “Appendix to National Environmental Policy Act: Coast Guard Procedures for Categorical Exclusions, Notice of Final Agency Policy” (67 FR 48243, July 23, 2002). This IFR updates 46 CFR subchapter M to harmonize fire safety standards for inspected towing vessels with those of other commercial vessels. These matters are editorial or procedural in nature; involve the inspection, equipping, equipment approval and carriage requirements of vessels; and also concern vessel safety standards. This rule supports the Coast Guard's maritime safety mission.
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Incorporation by reference, Reporting and recordkeeping requirements, Towing vessels.
Fire prevention, Incorporation by reference, Marine safety, Reporting and recordkeeping requirements, Towing vessels.
For the reasons discussed in the preamble, the Coast Guard amends 46 CFR parts 136 and 142 as follows:
46 U.S.C. 3103, 3301, 3306, 3308, 3316, 8104, 8904; 33 CFR 1.05; DHS Delegation 0170.1.
(h) * * *
(1) NFPA 10—Standard for Portable Fire Extinguishers, 2010 Edition, effective December 5, 2009, IBR approved for § 142.240(a) of this subchapter.
46 U.S.C. 3103, 3301, 3306, 3308, 3316, 8104, 8904; 33 CFR 1.05; Department of Homeland Security Delegation 0170.1.
The revision and addition read as follows:
(c) New installations of fire-extinguishing and fire-detection equipment of a type not required, or in excess of that required by this part, may be permitted—
(1) If Coast Guard approved;
(2) If accepted by the local OCMI or TPO, as applicable; or
(3) If equipment and components are listed and labeled by an independent Nationally Recognized Testing Laboratory (NRTL), as that term is defined in 29 CFR 1910.7, and are designed, installed, tested, and maintained in accordance with an appropriate industry standard and the manufacturer's specific guidance.
(d) Existing equipment and installations not meeting the applicable requirements of this part may be continued in service so long as they are in good condition and accepted by the local OCMI or TPO.
(d) A 40–B portable fire extinguisher must be located near the storage room or cabinet. This is in addition to the portable fire extinguishers required by tables 142.230(a) and 142.230(b) of this part.
(a) Towing vessels of 65 feet or less in length must carry at least the minimum number of portable fire extinguishers set forth in table 142.230(a).
(b) Towing vessels of more than 65 feet in length must carry—
(1) At least the minimum number of portable fire extinguishers set forth in table 142.230(b); and
(2) One 40–B portable fire extinguisher fitted in the engine room for each 1,000 brake horsepower of the main engines or fraction thereof. A towing vessel is not required to carry more than six additional 40–B portable fire extinguishers in the engine room for this purpose, regardless of horsepower.
(c) The frame or support of any semi-portable fire extinguisher fitted with wheels must be welded or otherwise permanently attached to a steel bulkhead or deck to prevent it from rolling under heavy sea conditions.
(d) Extinguishers with larger numerical ratings or multiple letter designations may be used if the extinguishers meet the minimum requirements of this section.
(a) Previously installed fire extinguishers with extinguishing capacities smaller than what is required by § 142.230 of this part need not be replaced and may be continued in service so long as they are maintained in good condition to the satisfaction of the OCMI.
(b) All new equipment and installations must meet the applicable requirements in this part for new vessels.
(a)
(1) Portable and semi-portable fire extinguishers must be inspected, maintained, and tested in accordance with the inspection, maintenance procedures, and hydrostatic pressure tests required by Chapters 7 and 8 of NFPA 10, Standard for Portable Fire Extinguishers (incorporated by reference, see § 136.112 of this subchapter), with the frequency specified by NFPA 10 and as amended here:
(i) Certification or licensing by a state or local jurisdiction as a fire extinguisher servicing agency will be accepted by the Coast Guard as meeting the personnel certification requirements of NFPA 10 for annual maintenance and recharging of extinguishers.
(ii) Monthly inspections required by NFPA 10 may be conducted by the owner, operator, person-in-charge, or a designated member of the crew.
(iii) Non-rechargeable or non-refillable extinguishers must be inspected and maintained in accordance with NFPA 10; however, the annual maintenance need not be conducted by a certified person and can be conducted by the owner, operator, person-in-charge, or a designated member of the crew.
(iv) The owner or managing operator must provide satisfactory evidence of the required servicing to the marine inspector or TPO, as applicable. If any of the equipment or records have not been properly maintained, a qualified servicing facility must perform the required inspections, maintenance procedures, and hydrostatic pressure tests. A tag issued by a qualified servicing organization, and attached to each extinguisher, may be accepted as evidence that the necessary maintenance procedures have been conducted.
(2) Fixed fire-extinguishing systems must be inspected and tested, as required by table 142.240 of this section, in addition to the tests required by §§ 147.60 and 147.65 of subchapter N of this chapter.
(c) * * *
(2) The records of inspections and tests of portable fire extinguishers and semi-portable fire-extinguishing systems may be recorded in accordance with paragraph (c)(1) of this section, or on a tag attached to each unit by a qualified servicing organization.