[Federal Register Volume 80, Number 107 (Thursday, June 4, 2015)]
[Notices]
[Pages 31909-31912]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-13668]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

[Docket No. USCG-2011-1156]


Change-1 to Navigation and Inspection Circular 01-13, Inspection 
and Certification of Vessels Under the Maritime Security Program

AGENCY: Coast Guard, DHS.

ACTION: Notice of availability.

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SUMMARY: The Coast Guard announces the availability of Change-1 to 
Navigation and Vessel Inspection Circular (NVIC) 01-13, Inspection and 
Certification of Vessels Under the Maritime Security Program (MSP). The 
MSP serves as a means for establishing a fleet of commercially viable 
and militarily useful vessels to meet national defense as well as other 
security requirements. NVIC 01-13 provides guidance to assist vessel 
owners/

[[Page 31910]]

operators, Authorized Classification Societies, and Coast Guard 
personnel with the inspection and certification of vessels under the 
MSP. This Change clarifies the process for the issuance of the 
Certificate of Documentation (COD) to the vessel during the reflag 
process, adds a note to the equivalency provisions for inspection of 
MSP vessels subsequent to initial certification, clarifies the trial 
period requirements for automated systems in machinery spaces, includes 
interim provisions for those vessels seeking to operate with minimally 
attended or periodically unattended machinery spaces, and makes other 
technical changes to NVIC 01-13.

DATES: Change-1 to NVIC 01-13 is effective as of June 4, 2015]. The 
owner/operator may request an amended Certificate of Inspection to 
align with Change-1 to NVIC 01-13 at the next scheduled Coast Guard 
attendance. Documents discussed in this notice should be available in 
the online docket within three business days of today's publication.

ADDRESSES: To view the documents mentioned in this notice go to http://www.regulations.gov and use ``USCG-2011-1156'' as your search term. 
Locate this notice in the search results, and use the filters on the 
left side of the page to locate specific documents by type. If you do 
not have access to the Internet, you may view the docket online by 
visiting the Docket Management Facility in Room W12-140 on the ground 
floor of the Department of Transportation West Building, 1200 New 
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays. We have an agreement 
with the Department of Transportation to use the Docket Management 
Facility.

FOR FURTHER INFORMATION CONTACT: For information about this document, 
call or email Lieutenant Corydon Heard, Office of Commercial Vessel 
Compliance (CG-CVC), U.S. Coast Guard; telephone 202-372-1208, email 
[email protected]. For information about viewing or submitting 
material to the docket, call Cheryl Collins, Program Manager, Docket 
Operations, telephone 202-366-9826, toll free 1-800-647-5527.

SUPPLEMENTARY INFORMATION:

Background and Purpose

    NVIC 01-13 provides uniform process guidance to assist vessel 
owners/operators, authorized classification societies, and Coast Guard 
personnel regarding the MSP. Vessels that meet MSP eligibility criteria 
may obtain a Certificate of Inspection (COI) by following the 
procedures and guidelines detailed in NVIC 01-13. NVIC 01-13 was first 
published in February 2013. As part of the first annual review, the 
Coast Guard considered policy guidance enhancements in order to better 
facilitate the transition of vessels to U.S. registry under the MSP. 
The Coast Guard published a notice in the Federal Register announcing 
the availability of the draft changes to NVIC 01-13 and requested 
public comments (79 FR 35177, June 19, 2014). Specifically, these draft 
changes clarified the process for the issuance of the Certificate of 
Documentation (COD) to the vessel during the reflag process, added a 
note to the equivalency provisions for inspection of MSP vessels 
subsequent to initial certification, clarified the trial period 
requirements for automated systems in machinery spaces, and included 
interim provisions for those vessels seeking to operate with minimally 
attended or periodically unattended machinery spaces (MAMS/PUMS), which 
do not otherwise meet the requirements of 46 CFR 62.50-20 and/or 62.50-
30 (as appropriate).
    We received eight public comment responses to the June 19, 2014, 
Federal Register notice. In addition to several general comments, these 
responses contained numerous specific recommendations, suggestions, and 
other remarks. We have created a comment matrix that provides a summary 
of each specific comment and the corresponding Coast Guard response; 
the comment matrix also lists and explains changes made by the Coast 
Guard but not prompted by public comments. A copy of this public 
comment matrix is available for viewing in the public docket for this 
notice. For more detailed information, please consult the actual public 
comment letters in the docket. You may access the docket going to 
http://www.regulations.gov, using ``USCG-2011-1156'' as your search 
term, and following the instructions in the ADDRESSES section above.
    The basic framework of the draft Change-1 to NVIC 01-13 described 
above is retained in the final version. The Coast Guard has made some 
changes from the draft version of Change-1 to NVIC 01-13 to the final 
version based on the public comments. All changes are underlined in the 
final version and each changed page is annotated with CH-1 in the 
footer. We note that several commenters recommended the establishment 
of a working group to address MSP inspection issues. While the Coast 
Guard welcomes public input and will continue to champion a transparent 
and pragmatic approach which factors industry concerns, we believe that 
the current process of issuing draft policy documents and incorporating 
public input is the best means of policy development at this time. Some 
commenters raised general concerns and objections over several key 
aspects of NVIC 01-13. A discussion of these general concerns is 
included below, while responses to specific technical issues are 
contained in the supplementary material available in the docket.
    The Coast Guard received several comments asserting that NVIC 01-13 
is inconsistent with the purpose and plain language of the MSP law. 
Specifically, commenters suggested that pursuant to 46 U.S.C. 53102(e), 
a vessel is eligible to receive a COI as long as the vessel continues 
to comply with international agreements and the associated guidelines 
of the vessel's prior flag State. Commenters contested the 
applicability of Title 46, Code of Federal Regulations (CFR) by arguing 
that vessels in the MSP are solely regulated under applicable 
international agreements (e.g., SOLAS) and Classification Society 
rules, specifically with regard to the manning and watchkeeping 
requirements for periodically unattended machinery space (PUMS). 
Commenters stated that to the extent that the CFR requirements differ 
from international conventions and class society rules, they are 
contrary to the statute.
    While we concur that the international agreements are applicable, 
we disagree concerning the non-applicability of domestic regulations to 
vessels in the MSP. Sections 53102(e)(1)(A) and (B) of 46 U.S.C. 
specifically address the basis for accepting foreign construction and 
equipment standards for the physical ship as a condition for receiving 
a COI. The MSP law establishes broad equivalencies, rather than an 
exemption, for equipment and provisioning required by U.S. regulations 
at reflag. The MSP law does not require the vessel's systems to be 
modified in order to meet U.S. equipment carriage requirements. 
Compliance with classification society rules and the previous flag's 
laws serve as evidence that the vessel is eligible for reflagging and 
issuance of its initial COI. The intent of the MSP COI endorsement is 
to identify this equivalency for equipment and provisioning. 
Furthermore, the Coast Guard generally will not require the 
installation of additional equipment as a condition of holding the COI 
once it was initially issued. However, the statute is silent

[[Page 31911]]

with regard to operational matters such as manning, watchstanding, 
record keeping, periodic inspections and casualty reporting.
    Unlike the design and equipment requirements needed to obtain a 
COI, manning and watchstanding provisions, as well as other operational 
requirements (logbooks, cargo authorities, inspection intervals and 
certification rules), are described in the various CFR subchapters 
depending on the vessel type. These regulations apply to MSP ships as 
they would to any U.S. flag vessel depending on route and service, and 
serve as the U.S. interpretations of the IMO international instruments 
since these international regulations intentionally leave many areas to 
``the satisfaction of the administration.'' These regulations include 
provisions for an optional reduction in manning and/or discretionary 
authorization for a PUMS. Considering the flexibility afforded by the 
applicable IMO international instruments, especially in the area of 
manning, operations, and the scope of flag administration inspections, 
the Coast Guard recognized the need for consistent MSP inspection 
procedures for vessel owners, class societies, and marine inspectors, 
and therefore published NVIC 01-13. Accordingly, the procedural 
guidance provided in NVIC 01-13 does not establish any original or new 
requirements, but clarifies the applicability of existing regulations, 
while incorporating previous and long standing policies.
    Some commenters expressed concern that NVIC 01-13 is inconsistent 
with prior Coast Guard practice and assert that any change in 
interpretation and formal imposition of new substantive requirements 
require a rulemaking under the Administrative Procedure Act (APA). The 
commenters argue that NVIC 01-13 imposes new substantive requirements 
on MSP operators, and that the Coast Guard has not followed the 
informal rulemaking process of the APA in enacting it. This, the 
commenters argue, should invalidate the NVIC, pursuant to Alaska 
Professional Hunters Ass'n v. Federal Aviation Administration, 177 F.3d 
1030 (D.C. Cir. 1992). Specifically, the commenters argue that previous 
policy guidance stated that MSP vessels will be inspected under special 
provisions, except that ``new installations or modifications to 
existing systems shall conform to the Coast Guard's interpretation of 
international regulations,'' without specifying the meaning of 
``interpretation''; while the new policy guidance contained in NVIC 01-
13 indicated that the Coast Guard's interpretation of international 
regulation meant compliance with the requirements in Title 46 of the 
CFR.
    We note that Alaska Hunters' reasoning was overturned by the U.S. 
Supreme Court recently in Perez v. Mortgage Bankers Association (March 
9, 2015). Beyond that, we disagree with this argument on two counts. 
First, the Coast Guard provided notice and an opportunity to comment on 
this guidance document, and carefully considered the comments received. 
The Coast Guard published a draft version of NVIC 01-13 for public 
comment in the Federal Register on January 19, 2012 (77 FR 2741) and 
the final version on February 28, 2013 (78 FR 13691). Similarly, the 
draft version of this change to the NVIC was published in the Federal 
Register on June 19, 2014 (79 FR 35177), and public comments are being 
addressed in this notice.
    Second, the commenter made this argument in relation to a request 
for reduced manning requirements for a PUMS. With regard to the manning 
requirements at issue, NVIC 01-13 does not introduce new policies, but 
merely clarifies existing policies and, in fact, the changes provide 
additional flexibility for operators in compliance options.
    Notwithstanding the commenter's arguments, the Coast Guard's 
procedural guidance and interpretations of MSP law have been consistent 
with respect to the installation or modification to existing systems, 
since the publication of MOC Policy Letter 1-97, Reflag Inspection and 
Certification of Vessels Under the Maritime Security Program (MSP). 
Prior to the issuance of NVIC 01-13, we stated that, with respect to 
the installation or modification to existing systems, such systems must 
be replaced with equipment that meets Coast Guard standards (that is, 
the standards in Title 46 of the CFR). This guidance is clearly stated 
in the Marine Safety Manual, where we stated that ``[a] reduction in 
manning due to engine automation must be approved and tested as 
satisfactory in accordance with U.S. regulations [emphasis added].'' 
\1\ Furthermore, the Coast Guard has applied this guidance to other 
vessels prior to the promulgation of NVIC 01-13. For example, in 2010, 
the Coast Guard denied an appeal regarding the MV HONOR's firefighting 
system for unattended machinery spaces. In our response, we stated that 
``The HONOR is not required to change the hardware of its accepted [by 
the classification society] fire fighting system as a condition of 
holding a COI. It is only a requirement if the plan is to maintain the 
vessel's periodically unattended machinery space designation.'' \2\ 
NVIC 01-13 merely reiterates this existing guidance. Accordingly, it is 
the view of the Coast Guard that NVIC 01-13 does not represent a 
substantive alteration or supersede the previous policy 
interpretations.
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    \1\ Marine Safety Manual, vol. II, p. B1-15.
    \2\ Letter to C.R. Cushing and Company, January 25, 2010.
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    In NVIC 01-13, the Coast Guard has sought to provide additional 
flexibility in respect to the replacement of equipment ``in kind'' as 
well as for the proposed acceptance of certain design and technical 
specifications meeting existing classification society rules as 
equivalent for the purposes of MSP. This posture has been consistently 
evident in legacy Coast Guard policies, such as PCV Policy Letter 06-06 
Guidance for Ships Reflagged under the Maritime Security Program 
Participating in the Underwater Survey in Lieu of Drydocking (UWILD) 
Program. NVIC 01-13 has further provided flexibility for vessels 
transitioning to U.S. registry under the MSP to participate in elective 
programs such as UWILD and PUMS while coming into compliance with Coast 
Guard measures designed to enhance the safety of U.S. mariners.
    Several commenters recommended that for PUMS, the Coast Guard 
should accept foreign non-Coast Guard approved equipment and systems 
that comply with the applicable international conventions as determined 
by the previous flag state's guidelines provided the vessel's 
automation and remote population system are in accordance with SOLAS, 
the previous flag state's requirements, and the vessel's classification 
society's rules.
    As previously noted, the Coast Guard generally will not require the 
installation of additional equipment as a condition of holding a COI 
once it was initially issued. For example, under MSP the Coast Guard 
accepts an attestation from the classification society stating that the 
automation systems (i.e., power management system, propulsion control 
system, dynamic positioning system, centralized machinery monitoring 
and control system, etc.) are designed to meet the failsafe 
requirements of SOLAS (see NVIC 01-13, Enclosure (2) Section 1.1.3). By 
contrast, the requirements and authorization to electively operate with 
an unattended machinery space rests with the flag administration. 
However, the Coast Guard received a comment recommending that 
particular supplemental Alternate Compliance Program (ACP) standards 
for MAMS/

[[Page 31912]]

PUMS be incorporated into the MSP guidelines as an alternative to 
certain requirements in 46 CFR part 62. The Coast Guard agrees with 
this comment and has incorporated a general alternative provision into 
the NVIC change. Additionally, the interim provisions provide for 
continual MAMS/PUMS operation until the next credit dry dock (not 
including UWILD) one year from the publication date of Change-1 to NVIC 
01-13.
    The remainder of comments received were technical in nature, and 
are discussed in the comment matrix available in the docket. Upon 
reviewing these specific comments, the Coast Guard has included 
additional guidance that maximizes flexibility by promoting alternative 
inspection programs. Principally, revisions were made to streamline the 
automation approval process, provide a standardized equivalency for 
design and technical specifications under ACP supplements, and clarify 
the provisions for servicing certain firefighting equipment and 
liferafts.
    This notice is issued under authority of 5 U.S.C. 552(a).

    Dated: May 26, 2015.
Paul F. Thomas,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Prevention 
Policy.
[FR Doc. 2015-13668 Filed 6-3-15; 8:45 am]
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