Regulations Amending the Vessel Fire Safety Regulations: SOR/2022-229

Canada Gazette, Part II, Volume 156, Number 24

Registration
SOR/2022-229 November 4, 2022

CANADA SHIPPING ACT, 2001

P.C. 2022-1194 November 4, 2022

Whereas the proposed Regulations set out standards that are additional or complementary to the standards set out in the International Convention for the Safety of Life at Sea, 1974 and the Protocol of 1988 relating to the Convention, and the Governor in Council is satisfied that those additional or complementary standards meet the objectives of the Convention and Protocol;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, under paragraph 35(1)(d) and subsection 120(1)footnote a of the Canada Shipping Act, 2001 footnote b, makes the annexed Regulations Amending the Vessel Fire Safety Regulations.

Regulations Amending the Vessel Fire Safety Regulations

Amendments

1 Subsection 102(1) of the Vessel Fire Safety Regulations footnote 1 is replaced by the following:

102 (1) Except as otherwise provided in this Part, a vessel’s authorized representative must ensure that the requirements of Chapter II-2 of SOLAS — other than those of regulations 1.1 and 1.3 to 1.6 and of Part E — and the requirements of sections 109 to 150 and 153 to 159 are met in respect of the vessel.

2 Section 143 of the Regulations is amended by adding the following before subsection (1):

143 (0.1) In addition to the requirements of regulation 10, firefighters’ outfits must meet any of the following:

(0.2) In addition to the requirements of regulation 10, firefighters’ self-contained breathing apparatus must be rated for use in fighting fires and must meet any of the following:

Coming into Force

3 These Regulations come into force on the day on which they are published in the Canada Gazette, Part II.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Vessel Fire Safety Regulations (VFSR) incorporate by reference International Maritime Organization (IMO) fire safety requirements as set out in Chapter II-2 of the International Convention for the Safety of Life at Sea, 1974 (SOLAS). The latest version of SOLAS includes the tacit acceptance procedure — which provides that an amendment shall enter into force on a specified date unless, before that date, objections to the amendment are received from a number of countries. The applicability of each IMO amendment made to SOLAS since 1974 is determined for each amendment, based on a vessel’s construction date, to ensure that changes related to design and construction generally only apply to vessels built after the amendment comes into force and do not require other or “existing” vessels to undergo major modifications.

When drafted in 2017, the VFSR intentionally left out the SOLAS regulation that sets out the application of SOLAS Chapter II-2 in order for Canada to set its own application for the requirements found in the Chapter. This inadvertently removed some precisions on tacit amendments that are outlined within the application section of the Chapter (i.e. SOLAS Chapter II-2, regulation 1, paragraph 2, referred to by the IMO as SOLAS II-2/1.2). While the VFSR intended for SOLAS amendments to be interpreted by industry according to the tacit acceptance procedure (i.e. applicable according to their respective coming-into-force dates), these are misconstrued as being applicable to various vessels to which the amendments were not intended to apply.

In addition, Canadian-specific standards for firefighter outfits and breathing apparatuses were inadvertently left out of the VFSR during the drafting process in 2017. This resulted in there being no established safety standard for firefighters’ outfits and related breathing apparatuses other than the IMO’s International Code for Fire Safety Systems (FSS Code) requirement.

These amendments (i) clarify construction and equipment standards for vessel fire protection by including the provisions of SOLAS II-2/1.2; and (ii) ensure that regulatory requirements for firefighter equipment align with requirements that existed prior to the coming into force of the VFSR. In addition to requirements found in the FSS Code, and to ensure Canada’s regulatory regime is aligned with other jurisdictions, the amendments incorporate more stringent standards for firefighting equipment, thereby addressing a key safety gap.

Background

Vessel Fire Safety Regulations

The VFSR, which came into force in 2017 under the Canada Shipping Act, 2001, implement the construction requirements for fire protection, detection and extinction found in SOLAS Chapter II-2, and modify these requirements where appropriate to address unique Canadian circumstances, such as harsh winter conditions and navigation close to shores.

Subsection 1(5) of the VFSR includes a requirement for each incorporated document to be read as amended from time to time, in order to always refer to the most up-to-date version of these documents and for vessels to meet the latest safety standards, no matter if made to SOLAS or to any other instruments within its text.

SOLAS Chapter II-2

Owing to the tacit acceptance procedure of SOLAS, amendments made to SOLAS Chapter II-2 generally apply to vessels built after the coming into force of each specific amendment, as most requirements introduced will affect how vessels are built. In rare cases, an amendment can also apply to existing vessels if the added requirement can easily be met by an existing vessel. For the latter of these two scenarios, the provisions of SOLAS II-2/1.2 clearly outline which amendments apply to existing vessels.

The exclusion of the provisions of SOLAS II-2/1.2 from the VFSR, in conjunction with the VFSR reference to an incorporated document as amended from time to time (subsection 1(5)), has led vessel operators to read SOLAS Chapter II-2 as it currently applies today, as opposed to applying it based on the coming-into-force date for each specific amendment. In other words, an operator is led to believe that a requirement not intended to apply to a vessel under SOLAS due to its construction date is now made mandatory based on subsection 1(5) of the VFSR. As a result, by May 2018, nine vessels went through unnecessary retrofitting. In May 2018, Transport Canada (TC) clarified with industry stakeholders how to interpret this requirement, and since then, TC has not been aware of any additional, unnecessary retrofitting taking place.

Firefighter outfit and breathing apparatus requirements

Before the VFSR came into force, requirements regarding aspects of fire safety were contained in the Fire Detection and Extinguishing Equipment Regulations (FDEER), the Hull Construction Regulations (HCR), and Transport Publications (TP).

In 2012, TC introduced a policy entitled Acceptance of an Alternative Regulatory Regime for Inspection, Construction and Safety Equipment in response to requests from industry for TC to provide a contemporary alternative to the aging FDEER framework. The policy, which introduced SOLAS Chapter II-2 as the alternative, included a set of Canadian modifications to this alternative in order to address unique Canadian circumstances, such as harsh winter conditions and navigation close to shores, as outlined in TP 15211 entitled Canadian Supplement to the SOLAS Convention. Together, the policy and TP 15211 (the Alternative Regulatory Regime) offered modernized regulatory requirements for inspection, construction and safety equipment, as an alternative to the FDEER.

Included in this Alternative Regulatory Regime was the requirement for firefighter outfits to comply with regulation 10.10.1 of SOLAS Chapter II-2 (FSS Code), and either

The Alternative Regulatory Regime also required that self-contained breathing apparatuses that form part of a firefighter outfit comply with the EU Council Directive 96/98/EC, the National Fire Protection Association Standard on Open-Circuit Self-Contained Breathing Apparatus (SCBA) for Emergency Services [NFPA 1981 (2007)], or the National Institute for Occupational Safety and Health (NIOSH) requirements and be rated for use in fighting fires.

These industry standards for firefighter outfits and breathing apparatuses have been in place since 2007. Firefighting equipment manufacturers in North America have continued to follow, in their production and distribution, the NFPA 1971 standard, as amended over time, for firefighting outfits and the NFPA 1981 and the NIOSH standards for self-contained breathing apparatuses. As a result, it is expected that manufacturers and distributors have continued to streamline these standards into their production and distribution despite the oversight in the VFSR.

The Alternative Regulatory Regime was considered as the groundwork in the development of the VFSR, as it laid out the same principle: introducing SOLAS Chapter II-2 as an acceptable safety alternative to the existing regulatory framework for fire protection. Therefore, essentially all the Canadian modifications shown in the Alternative Regulatory Regime became part of the VFSR, and once the VFSR came into force, the fire protection requirements in the provisions of the Alternative Regulatory Regime were withdrawn to have the provisions of the new regulations prevail. Due to an administrative error, both the requirements for the firefighting outfits and breathing apparatuses were inadvertently left out of the VFSR; however, it is believed that industry still complies, as most equipment sold in North America is certificated to the stated standards.

Objective

The objective of the amendments to the VFSR is to ensure clarity and certainty about specific requirements related to (i) international construction and maintenance standards for vessel fire safety; and (ii) international standards for firefighting equipment.

SOLAS Chapter II-2

Adding clarity to regulatory provisions by including the provisions of SOLAS II-2/1.2 in the VFSR will solidify understanding of the applicable requirements for Canadian vessels and maintain compliance with international standards. TC has communicated with industry to ensure clarity on this issue; however, a regulatory amendment is needed to prevent any future misinterpretations that could lead to a financial burden on stakeholders as a result of undertaking retrofits to their vessel(s) that are not actually required based on the vessel’s date of construction.

Firefighter outfit and breathing apparatus requirements

Including specific safety standards in the VFSR for firefighters’ outfits and breathing apparatuses will ensure consistency between regulatory requirements and widely implemented international standards for equipment designed to keep firefighters safe.

Description

SOLAS Chapter II-2

The amendments incorporate by reference the provisions of SOLAS II-2/1.2 in subsection 102(1) of the VFSR, which lays out the applicability of the requirements found in SOLAS Chapter II-2 based on a vessel’s construction date.

Firefighter outfit and breathing apparatus requirements

For firefighter outfits, the amendments incorporate by reference both (i) the EU Directive 2014/90/EU; and (ii) the requirements of NFPA 1971. Impacted stakeholders have the option to comply with either set of requirements, as both of these standards are deemed to provide an equivalent level of safety. Allowing both standards avoids unnecessary costs to stakeholders because most equipment sold in North America and in Europe is already certificated to one of these standards. Furthermore, should new equipment need to be purchased, stakeholders can choose to comply with either standard, based on product availability and/or cost.

For self-contained breathing apparatuses, the amendments incorporate by reference (i) the requirements of the EU Directive 2014/90/EU; (ii) the requirements of NFPA 1981; and (iii) the NIOSH requirements. These three standards are deemed to provide an equivalent level of safety, which is why they are all provided as options; this will also avoid unnecessary costs to stakeholders because most equipment sold in North America and in Europe is already certificated to one of these standards. Including all three standards provides options to stakeholders based on product availability and/or cost at the time of purchase.

Regulatory development

Consultation

TC consulted with stakeholders regarding these VFSR amendments at the November 2019 National Canadian Marine Advisory Council (CMAC) meeting that took place in Ottawa. The amendments were again presented virtually to stakeholders at the Spring 2021 and 2022 CMAC meetings of the Construction and Equipment Standing Committee.

Stakeholders that were present at the above-noted meetings included pilotage authorities; provincial boating associations; academia; non-governmental organizations; ferry operators; other government departments (federal, provincial and municipal); marine-related unions and associations; and representatives from the Canadian marine industry at large. Throughout the consultations, stakeholder feedback received was positive. In addition, stakeholders were of the view that these amendments would not add any burden, as most existing equipment already complies with the international standards.

Prepublication in the Canada Gazette, Part I

The VFSR amendments were prepublished in the Canada Gazette, Part I, on February 12, 2022, followed by a 60-day comment period. No stakeholder comments were received during this period. No changes have been made to the regulatory text since prepublication.

Impact due to COVID-19

Although the advancement of the amendments to the VFSR was delayed due to the COVID-19 pandemic and other files taking priority, the pandemic is not expected to place any delays, barriers, or costs on industry stakeholders. Stakeholders did not raise any concerns about the pandemic’s impact on the amendments either directly with TC or during the CMAC meetings. In addition, there have been no reports of supply issues with respect to the firefighting equipment.

Modern treaty obligations and Indigenous engagement and consultation

In accordance with the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an analysis was undertaken to determine whether the amendments may give rise to modern treaty obligations. This assessment examined the geographic scope and subject matter of the amendments in relation to modern treaties in effect and no modern treaty obligations were identified.

Instrument choice

Regulatory amendments are needed to ensure clarity and certainty about the applicability of existing requirements related to vessel fire safety and firefighting equipment. Without the regulatory amendments to the VFSR, vessel owners to which the VFSR apply would be technically required to make costly and unnecessary retrofits to their vessels. It was not the intention of the VFSR to require such retrofits. Likewise, without the amendments, there would be a lack of certainty about accepted standards for firefighting equipment. This would affect TC’s ability to enforce widely accepted international standards; however, more importantly, it could result in some operators using equipment that does not conform to such safety standards. No non-regulatory options were considered.

Regulatory analysis

SOLAS Chapter II-2

The amendments clarify which amendments to SOLAS Chapter II-2 that vessel owners are required to follow based on their vessel’s construction date. This clarification will ensure that vessel owners do not carry costs related to unnecessary vessel retrofitting.

Firefighter outfit and breathing apparatus requirements

These amendments incorporate by reference international standards for firefighter outfits and breathing apparatuses. It is not expected that these amendments will impose costs on vessel owners, as equipment currently available in the market is expected to meet these standards. However, in rare cases, some vessel owners may need to replace substandard equipment.

Analytical framework

The costs and benefits for the amendments have been assessed in accordance with the Treasury Board of Canada Secretariat’s Policy on Cost-Benefit Analysis. Only qualitative analysis is provided in this analysis, as data is limited or not available.

Benefits and costs associated with the amendments are assessed based on comparisons between the baseline scenario and the regulatory scenario. The baseline scenario refers to what is likely to happen in the future if the Government of Canada does not implement the amendments. The regulatory scenario provides information on the intended impacts because of the amendments.

Vessels in scope

The amendments apply to the following Canadian vessels described in section 101 of the VFSR, other than vessels benefiting from the grandfathering clause:footnote 2

The amendments do not apply to pleasure craft or fishing vessels, and to some other particular vessel types like high-speed craft, vessels that do not have mechanical means of propulsion, wooden vessels of primitive build, vessels that are capable of engaging in the drilling for, or the production, conservation or processing of, oil or gas, or nuclear vessels.

Since the VFSR came into force in 2017, 25 Canadian vessels have been constructed that will benefit from the clarity in the language of the Regulations on applying SOLAS II-2/1.2 based on the vessel’s construction date.footnote 3 As previously noted, only 9 of these 25 vessels went through unnecessary retrofitting before TC clarified with industry stakeholders how to correctly interpret this in May 2018.

The total number of vessels that are required to carry firefighter outfits and breathing apparatuses is estimated to be 500. TC expects most are already in compliance.

Baseline and regulatory scenarios

SOLAS Chapter II-2

Under the baseline scenario, Canadian vessels in scope [listed above in paragraphs (a) to (f)] would need to comply with the existing VFSR. Since SOLAS II-2/1.2 is not incorporated into the VFSR, there remains ambiguity on requirements that are based on the vessels’ construction date, as there is no construction date for owners to reference. This led to nine vessels undertaking unnecessary retrofitting between 2017 and May 2018. However, in May 2018, TC clarified with industry stakeholders on how to correctly interpret this requirement. TC has not been made aware of additional, unnecessary retrofitting taking place since then.

In the regulatory scenario, vessel owners now have clarity about which version of SOLAS Chapter II-2 to follow based on their vessels’ construction date.

Firefighter outfit and breathing apparatus requirements

Under the baseline scenario, Canadian vessel operators are only required to acquire outfits and apparatuses meeting the IMO’s FSS Code, which is a lower level of safety standard compared to standards prescribed in the Alternative Regulatory Regime. However, it is expected that virtually all Canadian vessel operators already have equipment meeting the standards in the Alternative Regulatory Regime on board, as they have been the targeted manufacturing standards in North America for years.

In the regulatory scenario, the standards prescribed in the Alternative Regulatory Regime are incorporated by reference in the VFSR.

Benefits and costs

Benefits
SOLAS Chapter II-2

By clarifying which amendments in SOLAS Chapter II-2 that vessel owners are required to follow, unnecessary vessel retrofitting due to the potential misunderstanding of the VFSR will be avoided. According to TC, since the implementation of the VFSR in 2017, nine vessels belonging to three companies went through unnecessary retrofitting. In May 2018, TC clarified how to correctly interpret this requirement with industry stakeholders, and since then, TC has not been aware of additional, unnecessary retrofitting. As a result, it is unlikely that any vessels would undertake unnecessary retrofitting in the baseline scenario. Therefore, while the amendments officially remove the ambiguity of the requirement, the change is not expected to result in additional cost savings to vessel owners.

Firefighter outfit and breathing apparatus requirements

It is expected that virtually all vessels in scope already have equipment on board that complies with the amendments. However, in any case where substandard equipment is still used by some vessel owners, the amendments are expected to help ensure improved safety for crew and all persons on board affected vessels. These amendments also provide clarity and certainty to all vessel owners about Canadian requirements.

Costs
SOLAS Chapter II-2

These amendments are not expected to impose additional costs to industry. The amendments clarify which amendments in SOLAS Chapter II-2 that vessel owners are required to follow. As no specific action will need to be taken by vessel owners to comply, these amendments will not have any incremental impact on vessel owners.

Firefighter outfit and breathing apparatus requirements

These amendments may impose additional costs to some vessel owners if they need to replace substandard firefighter outfits and/or breathing apparatuses on board. Due to a lack of data, these additional costs are not quantified; however, as previously explained, it is assumed that virtually all Canadian vessel operators that are required to comply with this requirement of the VFSR already have equipment meeting the standards, so it is expected that very few vessel owners will face any incremental costs as a result of these amendments. Any impacted vessel owners could expect the following average costsfootnote 4 for purchasing new equipment:

If a vessel owner needed to upgrade all the equipment, the cost of a firefighter combination unit with a breathing apparatus would be $8,000. The number of firefighting combination units on board depends on the size of the vessel and whether it is a cargo or passenger vessel.

Small business lens

Analysis under the small business lens concluded that there are no associated impacts on small businesses.

SOLAS Chapter II-2

The inclusion of the dispositions of SOLAS II-2/1.2 addresses vessel owners’ misunderstanding and, therefore, prevents unnecessary retrofitting. Based on information TC has on file, nine vessels have undertaken unnecessary retrofits since the coming into force of the VFSR, all of which are part of medium- or large-size companies. As a result, it is not expected that this amendment will have any impact on small businesses.

Firefighter outfit and breathing apparatus requirements

The requirement for vessels to carry firefighting outfits only applies to large vessels under Part 1 of the VFSR. Firefighting outfits are not required on board small vessels under Part 3 of the VFSR. Therefore, it is expected that there will be no impact on small businesses.

One-for-one rule

The one-for-one rule does not apply to these amendments, as there is no incremental change in the administrative burden on business and no regulatory titles are being introduced or repealed.

Regulatory cooperation and alignment

The amendments are not related to a work plan or any formal regulatory cooperation framework; however, the amendments align with international standards regarding requirements for firefighter outfits and breathing apparatuses.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary analysis was conducted, which concluded that a strategic environmental assessment is not required.

Gender-based analysis plus (GBA+)

The amendments strengthen the safety regime within the industry to meet international standards. The amendments are not expected to have any differential impacts based on identity factors such as gender, race, sexuality, ethnicity, and/or religion.

Implementation, compliance and enforcement, and service standards

Implementation

The regulatory amendments come into force on the day on which they are published in the Canada Gazette, Part II. Stakeholders will be informed of the amendments by the CMAC Secretariat.

Compliance and enforcement

Compliance and enforcement will continue to be done through periodical inspections and risk-based inspections performed by TC on the fleet. The amendments will have no impact on compliance and enforcement resources.

A person or company that fails to comply with the VFSR could be subject to enforcement action ranging from $260 up to $250,000.

Contact

Manager for the Vessel Fire Safety Regulations
Legislative, Regulatory and International Affairs
Marine Safety and Security
Transport Canada
Place de Ville, Tower C
330 Sparks Street, 11th Floor
Ottawa, Ontario
K1A 0N5
Email: MSSRegulations-ReglementsSSM@tc.gc.ca