Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 FCC 96-156 In the Matter of Amendment of the Commission's Rules to Conform the Maritime Service Rules to the Provisions of the Telecommunications Act of 1996 ORDER Adopted: April 5, 1996 Released: April 12, 1996 By the Commission: I. INTRODUCTION 1. This Order revises our Rules to implement Section 365 of the Communications Act of 1934, as amended (the "Communications Act"), a provision created by Section 206 of the Telecommunications Act of 1996./1/ Section 365 prohibits any requirement that large cargo vessels and passenger vessels carry manual Morse code radiotelegraph installations (radiotelegraph installations), so long as these vessels operate in accordance with the Global Maritime Distress and Safety System (GMDSS) provisions of the International Convention for the Safety of Life at Sea (Safety Convention)./2/ The Commission's current rules, however, require these vessels to carry such radiotelegraph installations. Accordingly, we are revising our rules so that they are consistent with the statutory prohibition set forth in Section 365 and promote improvements in safety of life at sea. II. EXECUTIVE SUMMARY 2. Pursuant to the 1996 Telecommunications Act, this Order removes the requirement that large cargo vessels and passenger vessels which are equipped and operated in accordance with the GMDSS provisions of the Safety Convention also carry radiotelegraph installations. As Congress found, the requirement to carry the outdated radiotelegraph under these circumstances is unnecessary and may serve to delay full implementation of GMDSS by U.S. vessels. In addition, this action increases safety of life at sea by promoting the use of a state-of-the-art distress communications system and promotes competition in the global shipping market. III. BACKGROUND 3. Prior to the enactment of the 1996 Telecommunications Act, Section 351 of the Communications Act required passenger vessels and large cargo vessels to be equipped with manual Morse code radiotelegraph installations when navigating in the open sea or on international voyages./3/ This requirement was inspired by and intended to avoid significant losses of life at sea in incidents such as the sinking of "The Titanic" in 1912. In fact, the radiotelegraph became an integral part of an international distress communications system, providing a common radio link between large vessels at sea via manual Morse code telegraphy on the 500 kHz channel. In 1988, the international maritime community agreed to replace radiotelegraph as the required installation with the GMDSS -- an automated ship-to-shore distress and safety radio communications system that relies on satellites and advanced terrestrial systems./4/ Accordingly, in the Report and Order in PR Docket No. 90-480, the Commission adopted rules implementing the new international GMDSS requirements, along with the following timeline: February 1, 1992 Each compulsory vessel constructed after this date must carry specified GMDSS alerting equipment -- including radar beacons and survival craft radios. February 1, 1993 Each compulsory vessel must carry a GMDSS satellite beacon and a receiver dedicated to maritime safety information. February 1, 1995 Each new compulsory vessel constructed after this date must carry a complete GMDSS radio installation. Further, each existing compulsory vessel must carry GMDSS radar beacons and survival craft radios. February 1, 1999 Each compulsory vessel must carry a complete GMDSS radio installation./5/ 4. The Report and Order, however, did not relieve U.S. compulsory vessels carrying GMDSS equipment in accordance with the international timeline from Section 351's requirement to carry radiotelegraph installations. As a result, compulsory vessels built after February 1, 1995, are required to carry two distinct safety systems, each with designated radio operators. Further, in the Report and Order, the Commission noted that the Communications Act would have to be amended in order to relieve compulsory vessels of the radiotelegraph requirement./6/ IV. DECISION 5. Section 206 of the 1996 Telecommunications Act removed the statutorily-imposed radiotelegraph requirement for GMDSS- equipped compulsory vessels by creating a new statutory provision -- Section 365. Section 365 reads as follows: [A] ship documented under the laws of the United States operating in accordance with the Global Maritime Distress and Safety provisions of the Safety of Life at Sea Convention shall not be required to be equipped with a radio telegraphy station operated by one or more radio officers or operators. This section shall take effect for each vessel upon a determination by the United States Coast Guard that such vessel has the equipment required to implement the Global Maritime Distress and Safety System installed and operating in good working condition./7/ The plain language of Section 365 removes our discretion to require radiotelegraph installations for compulsory vessels that are operating in accordance with the GMDSS provisions of the Safety Convention. Thus, we are amending our Rules to remove the radiotelegraph requirements for such vessels contained in Sections 80.801 et seq. of our Rules. 6. In addition, this action furthers the public interest. First, operators of compulsory vessels will no longer have to bear the economic burdens associated with carriage of an outdated communications technology such as radiotelegraph. Rather, owners will be able to direct additional resources toward becoming more competitive in the global shipping market. Second, elimination of the radiotelegraph requirement will likely facilitate full implementation of GMDSS on U.S. vessels prior to the February 1999 deadline. We note that 66 countries representing the world maritime community have unanimously adopted the new GMDSS. In fact, many countries such as Canada, Finland, and Norway have already enacted regulations requiring their ships to convert to the GMDSS./8/ Therefore, if U.S. vessels are delayed in implementing the GMDSS, American lives and property could be at risk by perpetuating an outmoded ship-to-ship alerting system. We believe that U.S. compulsory vessel operators may have been discouraged from early implementation of GMDSS because of the statutory requirement for both radiotelegraph and GMDSS. By eliminating the radiotelegraph requirement, we believe that we have established a regulatory environment that both promotes and facilitates U.S. implementation of GMDSS. Finally, this action increases vessel safety at sea because the GMDSS provisions of the Safety Convention ensure that compulsory vessels are equipped with reliable distress alerting and communication capabilities. 7. We note, however, that Section 365 requires that the elimination of the radiotelegraph requirement does not become effective until the United States Coast Guard (Coast Guard) determines that a compulsory vessel is equipped and operating in compliance with the GMDSS provisions of the Safety Convention./9/ Based on Congressman Tauzin's statement in the Congressional Record, we conclude that Congress did not intend for the Commission or the Coast Guard to revise current vessel certification or inspection procedures expressly for GMDSS vessels./10/ Thus, the Commission, or its designee,/11/ will continue to inspect each GMDSS equipped vessel to ensure that the GMDSS installation is in good working condition./12/ Upon successful completion of the inspection, the vessel will be issued a certificate of compliance. The Coast Guard may elect to rely on the Commission-issued (or designee-issued) certificate of compliance in fulfilling its responsibilities under Section 365 of the Communications Act./13/ V. PROCEDURAL MATTERS 8. We are revising this rule without providing prior public notice and comment because the amendment of the rule being modified is mandated by Section 206 of the 1996 Telecommunications Act. We find that notice and comment procedures are unnecessary, and that this action therefore falls within the "good cause" exception of the Administrative Procedure Act (APA)./14/ The rule change adopted in this Order does not involve discretionary action on the part of the Commission. Rather, it simply implements a provision of the 1996 Telecommunications Act that directs the Commission to revise its rules according to specific terms set forth in the legislation. VI. ORDERING CLAUSES 9. Accordingly, pursuant to Sections 4(i) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 303(r), IT IS ORDERED that Part 80 of the Commission's Rules, 47 C.F.R. Part 80 IS AMENDED as set forth in the Appendix below, effective thirty days after publication in the Federal Register. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary APPENDIX Part 80 of Chapter 1 of Title 47 of the Code of Federal Regulations is amended as follows: 1. The authority citation for Part 80 continues to read as follows: AUTHORITY: Secs. 4, 303, 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303, unless otherwise noted. Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47 U.S.C. 151-155, 301-609; 3 UST 3450, 3 UST 4726, 12 UST 2377. 2. Section 80.836 is amended by revising paragraph (c), redesignating paragraph (d) as paragraph (e), and adding new paragraph (d) to read as follows:  80.836 General exemptions. * * * (c) Prior to February 1, 1999, cargo ships of 1600 gross tons and upward are exempt from the radiotelegraph requirements of Part II of Title III of the Communications Act, if the following criteria, (1), (2) and (3) are met: (1) The ship operates on domestic voyages only. For purposes of this paragraph, the term domestic voyages includes ports in Alaska, U.S. possessions in the Caribbean, and along the coasts of the 48 contiguous states, so long as the vessel does not make port at a foreign destination; (2) The routes of the voyage are never more than 150 nautical miles from the nearest land; and, (3) The ship complies fully with all of the following conditions. The ship must: (i) Be equipped with a satellite ship earth station providing both voice and telex, which has been type accepted for GMDSS use; (ii) Be equipped with a VHF and MF radiotelephone installation which complies fully with Subpart R of this part and has the additional capability of operating on the HF frequencies listed in Section 80.369(b) for distress and safety communications (this capability may be added to the MF radiotelephone installation); (iii) Be equipped with a narrow-band direct-printing radiotelegraph system with SITOR meeting the requirements of Section 80.219; (iv) Be equipped with at least two VHF transceivers capable of being powered by the reserve power supply (one of the VHF transceivers may be the VHF required by sub-paragraph (c)(3)(ii) of this paragraph); (v) Be equipped with a Category 1, 406 MHz EPIRB meeting the requirements of Section 80.1061; (vi) Be equipped with a NAVTEX receiver meeting the requirements of Section 80.1101(c)(1); (vii) Be equipped with three two-way VHF radiotelephone apparatus and two radar transponders in accordance with Section 80.1095; (viii) In addition to the main power source, be equipped with an emergency power source which complies with all applicable rules and regulations of the U.S. Coast Guard (the satellite earth station, the narrow-band direct-printing equipment and the 500 kHz autoalarm receiver must be capable of being powered by the main and emergency power sources); (ix) Be equipped with a 500 kHz autoalarm receiver and a means of recording or decoding any distress signal received for relay to the Coast Guard or a public coast station; (x) Participate in the AMVER system when on voyages of more than twenty-four hours and have the capability of operating on at least four of the AMVER HF duplex channels; (xi) Carry at least one licensed operator to operate and maintain all the ship's distress and safety radio communications equipment in accordance with Sections 80.159(c) and 80.169; and, (xii) Maintain a continuous watch on 2182 kHz and 156.8 MHz, in accordance with 80.305(b), when navigated. (d) Subject to a determination by the United States Coast Guard pursuant to Pub. L. No. 104-104, 110 Stat. 56 (1996) at Section 206, each U.S. passenger vessel and each U.S. cargo vessel of 1,600 gross tons and upward is exempt from the radiotelegraph provisions of part II of title III of the Communications Act, provided that the vessel complies fully with the requirements for the Global Maritime Distress & Safety System (GMDSS) contained in Subpart W of this part and obtains either a Safety Certificate or endorsement as described in Section 80.1067. Note to paragraph d: In a letter to the Commission, dated March 13, 1996, the United States Coast Guard noted that it may rely on the Safety Certificate or endorsement described in Section 80.1067 as prima facie evidence that the GMDSS has been installed and found to be operating properly. The Coast Guard also stated that it retains the authority for ensuring overall vessel safety and compliance with all applicable domestic and international laws, regulations and treaties. (e) These exemptions may be terminated at any time without hearing if, in the Commission's discretion, the need for such action arises. FOOTNOTES -FOOTNOTE 1- Pub. L. No. 104-104, 110 Stat. 56 (1996) (1996 Telecommunications Act). The 1996 Telecommunications Act was signed into law on February 8, 1996. -FOOTNOTE 2- 1996 Telecommunications Act, Section 206. -FOOTNOTE 3- 47 U.S.C.  351. Specifically, the vessels covered by this requirement include all passenger ships irrespective of size that are certified to carry more than twelve passengers when traveling on international voyages or in the open sea, and cargo ships of 1,600 tons gross tonnage and over when traveling on international voyages or in the open sea. -FOOTNOTE 4- Final Acts of the Conference of Contracting Governments to the International Safety of Life at Sea, 1974, on the Global Maritime Distress and Safety System, London, 1988 (1988 SOLAS Amendments). -FOOTNOTE 5- Amendment of Parts 13 and 80 of the Commission's Rules to Implement the Global Maritime Distress and Safety System (GMDSS) to Improve the Safety of Life at Sea, PR Docket No. 90-480, Report and Order, 7 FCC Rcd 951 (1992). -FOOTNOTE 6- Report and Order, 7 FCC Rcd at 962. -FOOTNOTE 7- Congressman Tauzin, principal author of Section 365 of the conference report, described the intended role of the United States Coast Guard (Coast Guard) in a separate statement: "In implementing this section, the Coast Guard can rely on the Federal Communications Commission to determine that a large ocean going vessel has GMDSS equipment installed and operating in good working condition. We do not contemplate the Coast Guard conducting a rule making, public hearings, or other lengthy regulatory process. Rather, we contemplate a simple adaptation of current, well-established Commission certification procedures." 104 Cong. Rec. H1178 (daily ed. February 1, 1996) (statement of Rep. Tauzin). -FOOTNOTE 8- 1988 SOLAS Amendments. Canada required their compulsory vessels to meet all GMDSS requirements by 1995, four years earlier than the international deadline. -FOOTNOTE 9- See 1996 Telecommunications Act, Section 206. -FOOTNOTE 10- See supra note 7. -FOOTNOTE 11- The Commission is currently considering whether to privatize vessel inspections. See Amendment of Part 80 of the Commission's Rules Regarding the Inspection of Great Lakes Agreement Ships, CI Docket 95-54, Notice of Proposed Rulemaking, 10 FCC Rcd 5418 (1995). See also, Amendment of the Commission's Rules Concerning the Inspection of Radio Installations on Large Cargo and Small Passenger Ships, CI Docket No. 95-55, Notice of Inquiry, 10 FCC Rcd 5424 (1995). -FOOTNOTE 12- 47 U.S.C.  359 and 360. See also 47 C.F.R.  80.1067. -FOOTNOTE 13- See letter from Captain D. A. Potter, Director of Command, Control, Communications, and Computers, United States Coast Guard, to Robert H. McNamara (March 13, 1996). -FOOTNOTE 14- See 5 U.S.C.  553(b)(B) (notice requirements inapplicable "when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest").