[Federal Register Volume 66, Number 84 (Tuesday, May 1, 2001)]
[Proposed Rules]
[Pages 21717-21720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-10840]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 175

[USCG-2000-8589]
RIN 2115-AG04


Wearing of Personal Flotation Devices (PFDs) by Certain Children 
Aboard Recreational Vessels

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to require that children aboard 
recreational vessels wear personal flotation devices (PFDs), or 
lifejackets. During 1995-1998, 105 children under 13 died in the water, 
66 of them by drowning. This proposed rule should reduce the number of 
children who drown because they were not wearing lifejackets.

DATES: Comments and related material must reach the Docket Management 
Facility on or before August 29, 2001.

ADDRESSES: Identify your comments and related material by the docket 
number for this rulemaking [USCG-2000-8589]. To make sure they do not 
enter the docket more than once, please submit them by only one of the 
following means:
    (1) By mail to the Docket Management Facility, U.S. Department of 
Transportation, room PL-401, 400 Seventh Street SW., Washington, DC 
20590-0001.
    (2) By hand-delivery to room PL-401 on the Plaza level of the 
Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.
    (3) By fax to the Docket Management Facility at 202-493-2251.
    (4) Electronically through the Internet Site for the Docket 
Management System at http://dms.dot.gov.
    The Docket Management Facility maintains the public docket for this 
rulemaking. Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
will become part of this docket and will be available for inspection or 
copying at room PL-401 on the Plaza level of the Nassif Building, at 
the address listed above between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays. You may also find this docket on the 
Internet at http://dms.dot.gov. You may obtain a copy of this proposed 
rule by calling the U.S. Coast Guard Infoline at 1-800-368-5647, or 
read it

[[Page 21718]]

on the Internet, at the Web Site for the Office of Boating Safety, at 
http://www.uscgboating.org or at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: For questions on this proposed rule, 
contact Carlton Perry, Project Manager, Office of Boating Safety, U.S. 
Coast Guard, by telephone at 202-267-0979 or by e-mail at 
<a href="/cdn-cgi/l/email-protection#afccdfcaddddd6efccc0c2cbdb81dadcccc881c2c6c3"><span class="__cf_email__" data-cfemail="91f2e1f4e3e3e8d1f2fefcf5e5bfe4e2f2f6bffcf8fd">[email protected]</span></a>. For questions on viewing or submitting material 
to the docket, call Dorothy Beard, Chief, Dockets, Department of 
Transportation, telephone 202-366-9329.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking [USCG-2000-
8589], indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. You may submit 
your comments and material by mail, by hand-delivery, by fax, or 
electronically to the Docket Management Facility at the address under 
ADDRESSES; but please submit them by only one means. If you submit them 
by mail or hand-delivery, submit them in an unbound format, no larger 
than 8\1/2\ by 11 inches, suitable for copying and electronic filing. 
If you submit them by mail and want to know they reached the Facility, 
please enclose a stamped, self-addressed postcard or envelope. We will 
consider all comments and material received during the comment period. 
We may change this proposed rule in view of them.

Public Meeting

    We do not plan to hold a public meeting. You may ask for one by 
submitting a request to the Docket Management Facility at the address 
under ADDRESSES explaining why one would be beneficial. If we determine 
that one would aid this rulemaking, we will hold one at a time and 
place announced by a later notice in the Federal Register.

Background and Purpose

    On September 25, 1997, we published in the Federal Register a 
notice of request for comments titled, ``Recreational Boating Safety--
Federal Requirements for Wearing Personal Flotation Devices'' [62 FR 
50280]. In that notice, under docket number CGD 97-059, we asked 
interested people, groups, and businesses about the need for, and 
alternatives to, Federal requirements or incentives for boaters to wear 
lifejackets. On March 20, 1998, we published a second notice with the 
same title and under the same docket number to extend the comment 
period to May 29, 1998 [63 FR 13586].
    We received over 600 written comments in response to the initial 
notice. Most opposed any Federal requirements that all boaters wear 
lifejackets all the time. Yet almost 120 supported Federal or State 
requirements to wear lifejackets for at least some recreational 
vessels, boaters, or activities.
    After summarizing the comments (copy of the initial notices, public 
comments, and summary of comments in public docket USCG-1999-6219), we 
consulted with NBSAC at its meetings in October 1998 and April 1999 
regarding the results. NBSAC recommended that we publish another notice 
of request for comments, one that would focus more on the need to 
propose rules calling for mandatory wear by children, by operators of 
Personal Watercraft (PWC), and by people being towed behind 
recreational vessels.
    In deference to NBSAC, we published in the Federal Register another 
notice of request for comments titled, ``Recreational Boating Safety--
Federal Requirements for Wearing Personal Flotation Devices'' [64 FR 
53971 (October 5, 1999)]. In that notice, under docket number USCG-
1999-6219, we addressed only vessels less than 16 feet in length, which 
should include specific groups of high-risk recreational vessels, 
boaters, and activities.
    We received almost 600 written comments in response to the second, 
more focused notice. The comments were mixed: Most opposed broad 
Federal requirements for wearing lifejackets, a few supported various 
Federal requirements for selected circumstances, more supported 
continued States' requirements for use of safety equipment, and a few 
objected to the inconsistency between or among the several States' 
requirements.
    After summarizing the comments (copy of the initial notices, public 
comments, and summary of comments in public docket USCG-1999-6219), we 
again consulted with NBSAC at its meeting in May 2000 regarding the 
results. NBSAC then recommended that we either expand section 175.15 of 
title 33 of the Code of Federal Regulations or add a new section to 
part 175 to require children to wear lifejackets. This section would 
require children under 13 to wear lifejackets approved by the Coast 
Guard while aboard recreational vessels under way, except when the 
children are below decks or in enclosed cabins.
    The number of deaths by drowning of children under 13 has decreased 
from 27 in 1995 to 11 in 1998. A review of statistics on recreational 
boating accidents during 1998 showed that the rate of children drowning 
in States that require children to wear lifejackets (1.22 such 
drownings for every 1000 accidents) is lower than that of States that 
do not (1.31 such drownings for every 1000 accidents).
    By late 1995, 26 States had enacted statutes requiring children to 
wear lifejackets while aboard recreational vessels. The requirements, 
however, were not consistent nationwide, affecting children of 
different ages, while aboard vessels of different sizes, and under 
different activities. By late 1999, 36 States had enacted statutes 
requiring children to wear lifejackets while aboard recreational 
vessels. The requirements, however, still were not consistent 
nationwide. They varied by the age for wearing: From under age 18, when 
the vessel operator is under 18, to under age 6. They varied in other 
particulars, too: on the sizes of vessels (more than 26 feet in length 
or less than 65 feet, 26 feet, 19 feet, 18 feet, or 16 feet in length); 
whether the vessels were under way, in motion, or not specified; and 
whether the children were on open decks, below decks, or in enclosed 
cabins.
    To improve boating safety and encourage greater uniformity of 
boating laws, we are proposing a requirement that children under 13 
wear lifejackets approved by the Coast Guard while aboard vessels under 
way, except when the children are below decks or in enclosed cabins. We 
are nevertheless proposing to adopt the ages at or below which the 
States require children to wear lifejackets within those States. The 
existence of a Federal requirement for children to wear lifejackets 
under specific circumstances, even one that adopted States' thresholds 
of age, would encourage States to establish their own requirements for 
children and would draw the several requirements into greater 
uniformity nationwide.

Discussion of Proposed Rule

    1. Section 175.3 would add a definition of the term ``State'' to 
clarify the applicability of non-Federal requirements and the Federal 
adoption of those requirements.
    2. Section 175.15 would accomplish a minor editorial change and add 
a new paragraph establishing a requirement for children under 13 to 
wear lifejackets approved by the Coast Guard while aboard recreational 
vessels.

[[Page 21719]]

    3. Subpart B would add a new section 175.25 adopting the ages at or 
below which the States require children to wear lifejackets while 
aboard recreational vessels within those States.
    The proposed rule would apply only where a State had not enacted 
such a requirement. It would apply now, therefore, only in Colorado, 
Guam, Hawaii, Idaho, Indiana, Iowa, Kentucky, Maryland, Minnesota, the 
Northern Mariana Islands, Nevada, New Mexico, North Carolina, North 
Dakota, South Dakota, the Virgin Islands, West Virginia, Wisconsin, and 
Wyoming [See the 1999 edition of the National Association of State 
Boating Law Administrators, Reference Guide to State Boating Laws], 
and, for recreational vessels owned in the United States, it would 
apply on the high seas.

Regulatory Evaluation

    This proposed rule is not a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866 and does not require an 
assessment of potential costs and benefits under section 6(a)(3) of 
that Order. The Office of Management and Budget (OMB) has not reviewed 
this rule under that Order. It is not ``significant'' under the 
regulatory policies and procedures of the Department of Transportation 
(DOT) [44 FR 11040 (February 26, 1979)].
    A draft Regulatory Evaluation under paragraph 10e of the regulatory 
policies and procedures of DOT follows:

1. Cost of Proposed Rule

    This rule would impose no costs on the boating public. Existing 
rules require that the carriage of an appropriate PFD for each 
passenger. Costs to the Government would be non-existent as well 
because the Coast Guard already trains its Boarding Officers to check 
safety equipment when boarding recreational vessels.

2. Benefit of Proposed Rule

    This rule would be appropriate because, even though statistics on 
boating accidents show that the actual numbers of children under 13 
that drowned in recent years were relatively small (14 in 1996, 14 in 
1997 and 11 in 1998), these few drownings were avoidable. The rule 
should reduce the number of children under 13 that drown every year 
because they are not wearing lifejackets.
    This rule would now affect only those States, identified above, 
that have not enacted requirements for children to wear lifejackets. In 
those States, there were 7 fatal drownings and 1 moderate and 3 
critical near-drowning injuries of children under 13 from 1995 through 
1998 that could have been prevented if the children had worn 
lifejackets. (These numbers may overstate the number of lives that 
could have been saved if the children had worn lifejackets: Narratives 
in accident reports may fail to disclose circumstances in which the 
victims were pinned, for example, and would have drowned anyway. Yet 
they may just as well understate the number of lives that could have 
been saved: Many accidents go unreported entirely.)
    A memorandum from the Office of the Secretary of Transportation, 
dated April 29, 1996, sets the value of a fatality averted for use in 
preparing economic evaluations at $2.7 million and affirms previous 
guidance to agencies within the Department to classify injuries as 
minor, moderate, serious, severe, critical, or fatal. The guidance also 
assigns to each degree of injury averted a certain fraction of the 
value of a fatality averted. Therefore, to calculate the value of each 
degree of injury averted, we multiplied $2.7 million, the value of a 
fatality averted, by the fraction assigned to each degree of injury 
averted.
    If we consider a 100% rate of compliance with a requirement for 
children to wear lifejackets, we can calculate the retrospective 
benefits of this rule as below:

                                                            Value of Injuries and Fatalities for States Without Existing Regulations
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                                           Fraction of
                                            value of                                                                       Number of
            Injury severity                 fatality              Value of injuries and fatalities if averted              injuries                           Dollar amount
                                             averted                                                                      (1995-1998)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Minor..................................          0.0020  ($2,700,000)(0.0020) =$5,400                                                0  ($5,400)(0)=0
Moderate...............................          0.0155  ($2,700,000)(0.0155) =$41,850                                               1  ($41,850)(1) =$41,850
Serious................................          0.0575  ($2,700,000)(0.0575) =$155,250                                              0  ($155,250)(0) =0
Severe.................................        (0.1875)  ($2,700,000)(0.1875) =$506,250                                              0  ($506,250)(0) =0
Critical...............................        (0.7625)  ($2,700,000)(0.7625)= $2,058,750                                            3  ($2,058,750)(3) =$6,176,250
Fatal..................................          1.0000  ($2,700,000)(1.000) =$2,700,000                                             7  ($2,700,000)(7) =18,900,000
                                        --------------------------------------------------------------------------------------------------------------------------------------------------------
      Total............................  ..............  .............................................................              11  $25,118,100
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    The total value of injuries and fatalities averted for 1995-1998 
would have been $25,118,100. Therefore, the average annual value of 
injuries and fatalities averted would have been $6,279,525 
($25,118,100)/(4 years).

Small Entities

    Under the Regulatory Flexibility Act [5 U.S.C. 601-612], we have 
considered whether this proposed rule would have a significant economic 
effect 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.
    This Federal requirement for children under 13 to wear lifejackets 
would apply to operators of recreational vessels on waters subject to 
the jurisdiction of the United States, as defined in 33 CFR 2.05-30. It 
would continue to apply to operators of recreational vessels owned in 
the United States, while operating on the high seas (as defined in 33 
CFR 2.05-1). Further, since this proposed rule would adopt the ages at 
or below which States require children to wear lifejackets, operators 
of recreational vessels in States with such requirements would not be 
subject to different requirements within their States, unless the 
States changed their own: One State, one requirement. Only those 
operators of recreational vessels either in States without such 
requirements or on navigable waters of the United States outside States 
altogether would be subject to the Federal requirement.
    Because the Regulatory Flexibility Act does not apply to 
individuals, the Coast Guard certifies under 5 U.S.C. 605(b) that this 
rule would not have a

[[Page 21720]]

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 would have 
a significant economic effect on it, please submit a comment to the 
Docket Management Facility at the address under ADDRESSES. In your 
comment, explain why you think it qualifies and how and to what degree 
this rule would affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 [Public Law 104-121], we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effect on them and participate in the rulemaking. If the 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact Carlton Perry, Project Manager, 
Office of Boating Safety, by telephone at 202-267-0979, or by e-mail at 
<a href="/cdn-cgi/l/email-protection#1073607562626950737f7d74643e656373773e7d797c"><span class="__cf_email__" data-cfemail="3e5d4e5b4c4c477e5d51535a4a104b4d5d5910535752">[email protected]</span></a>.

Collection of Information

    This proposed rule would call for no new collection of information 
under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501-3520].

Federalism

    We have analyzed this proposed rule under E.O. 13132 and have 
determined that, because the Federal requirement for children under 13 
to wear lifejackets would not supersede or preempt any State's 
requirement for children to wear lifejackets, this rule does not have 
implications for federalism under that Order. The proposed Federal 
requirement would apply only in States without such requirements.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 [2 U.S.C. 1531-1538] 
governs the issuance of Federal rules that impose unfunded mandates. An 
unfunded mandate is a requirement that a State, a local or tribal 
government, or the private sector incur direct costs without the 
Federal Government's having first provided the funds to pay those 
costs. This proposed rule would not impose an unfunded mandate.

Taking of Private Property

    This proposed rule would not effect a taking of private property or 
otherwise have taking implications under E.O. 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Reform of Civil Justice

    This proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this proposed rule under E.O. 13045, Protection of 
Children from Environmental Health Risks and Safety Risks. This rule is 
not an economically significant rule. Nor would it create an 
environmental risk to health or risk to safety that might 
disproportionately affect children; on the contrary, it would advance 
the welfare of children.

Environment

    We have considered the environmental impact of this proposed rule 
and concluded that, under figure 2-1, paragraph (34)(a), of Commandant 
Instruction M16475.1C, this rule is categorically excluded from further 
environmental documentation. The rule would require that certain 
children aboard recreational vessels wear lifejackets. A Determination 
of Categorical Exclusion is available in the docket where indicated 
under ADDRESSES.

List of Subjects in 33 CFR Part 175

    Marine safety.
    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 175 as follows:
    1. The citation of authority for part 175 continues to read as 
follows:

    Authority: 46 U.S.C. 4302; 49 CFR 1.46.

    2. Amend Sec. 175.3 by adding the following definition in 
alphabetical order, to read as follows:


Sec. 175.3  Definitions.

* * * * *
    State means a State or Territory of the United States of America, 
whether a State of the United States, American Samoa, the Commonwealth 
of the Northern Marianas Islands, the District of Columbia, Guam, 
Puerto Rico, or the United States Virgin Islands.
* * * * *
    3. Amend Sec. 175.15 by removing from paragraph (b) the term 
``PFD's'' and adding in its place the term ``PFDs'', and by adding a 
new paragraph (c), to read as follows:


Sec. 175.15  Personal flotation devices required.

* * * * *
    (c) No person may use a recreational vessel unless all children 
aboard under 13 years old are wearing appropriate PFDs; or--
    (1) The children are below decks or in an enclosed cabin; or
    (2) The vessel is not under way.
    4. Add a new Sec. 175.25 to subpart B, to read as follows:


Sec. 175.25  Adoption of States' requirements for children to wear 
personal flotation devices.

    (a) This section applies to every operator of a recreational vessel 
on waters within the geographical boundaries of any State that has 
established by statute a requirement under which children must wear 
PFDs approved by the Coast Guard while aboard recreational vessels.
    (b) If the applicable State's statute establishes an age under 
which children must wear PFDs, that age, instead of the age provided in 
Sec. 175.15(c)(2)(i) of this part, applies within the geographical 
boundaries of that State.

    Dated: January 15, 2001.
Terry M. Cross,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Operations.
[FR Doc. 01-10840 Filed 4-30-01; 8:45 am]
BILLING CODE 4910-15-P


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