Federal Register / Vol. 66, No. 7 / Wednesday, January 10, 2001 / Rules and Regulations 1859

representative effective January 1, 2002 and

vote to certify a new employee representative

effective the same date. As a consequence, on

January 1, 2002 they cease to be covered

under M and commence to be covered under

multiemployer group health plan N.

(ii) Effective January 1, 2002, N has the

obligation to make COBRA continuation

coverage available to any qualified

beneficiary who experienced a qualifying

event that preceded or coincided with the

cessation of contributions to M and whose

coverage under M on the day before the

qualifying event was due to an employment

affiliation with W. The loss of coverage under

M for those employees of W who continue in

employment (and the loss of coverage for

their spouses and dependent children) does

not constitute a qualifying event.

§ 54.4980B–10 Interaction of FMLA and

COBRA.

The following questions-and-answers

address how the taking of leave under

the Family and Medical Leave Act of

1993 (FMLA) (29 U.S.C. 2601–2619)

affects the COBRA continuation

coverage requirements:

Q–1: In what circumstances does a

qualifying event occur if an employee

does not return from leave taken under

FMLA?

A–1: (a) The taking of leave under

FMLA does not constitute a qualifying

event. A qualifying event under Q&A–

1 of § 54.4980B–4 occurs, however, if—

(1) An employee (or the spouse or a

dependent child of the employee) is

covered on the day before the first day

of FMLA leave (or becomes covered

during the FMLA leave) under a group

health plan of the employee’s employer;

(2) The employee does not return to

employment with the employer at the

end of the FMLA leave; and

(3) The employee (or the spouse or a

dependent child of the employee)

would, in the absence of COBRA

continuation coverage, lose coverage

under the group health plan before the

end of the maximum coverage period.

(b) However, the satisfaction of the

three conditions in paragraph (a) of this

Q&A–1 does not constitute a qualifying

event if the employer eliminates, on or

before the last day of the employee’s

FMLA leave, coverage under a group

health plan for the class of employees

(while continuing to employ that class

of employees) to which the employee

would have belonged if the employee

had not taken FMLA leave.

Q–2: If a qualifying event described in

Q&A–1 of this section occurs, when

does it occur, and how is the maximum

coverage period measured?

A–2: A qualifying event described in

Q&A–1 of this section occurs on the last

day of FMLA leave. (The determination

of when FMLA leave ends is not made

under the rules of this section. See the

FMLA regulations, 29 CFR Part 825

(§§ 825.100–825.800).) The maximum

coverage period (see Q&A–4 of

§ 54.4980B–7) is measured from the date

of the qualifying event (that is, the last

day of FMLA leave). If, however,

coverage under the group health plan is

lost at a later date and the plan provides

for the extension of the required periods

(see paragraph (b) of Q&A–4 of

§ 54.4980B–7), then the maximum

coverage period is measured from the

date when coverage is lost. The rules of

this Q&A–2 are illustrated by the

following examples:

Example 1. (i) Employee B is covered

under the group health plan of Employer X

on January 31, 2001. B takes FMLA leave

beginning February 1, 2001. B’s last day of

FMLA leave is 12 weeks later, on April 25,

2001, and B does not return to work with X

at the end of the FMLA leave. If B does not

elect COBRA continuation coverage, B will

not be covered under the group health plan

of X as of April 26, 2001.

(ii) B experiences a qualifying event on

April 25, 2001, and the maximum coverage

period is measured from that date. (This is

the case even if, for part or all of the FMLA

leave, B fails to pay the employee portion of

premiums for coverage under the group

health plan of X and is not covered under X’s

plan. See Q&A–3 of this section.)

Example 2. (i) Employee C and C’s spouse

are covered under the group health plan of

Employer Y on August 15, 2001. C takes

FMLA leave beginning August 16, 2001. C

informs Y less than 12 weeks later, on

September 28, 2001, that C will not be

returning to work. Under the FMLA

regulations, 29 CFR Part 825 (§§ 825.100–

825.800), C’s last day of FMLA leave is

September 28, 2001. C does not return to

work with Y at the end of the FMLA leave.

If C and C’s spouse do not elect COBRA

continuation coverage, they will not be

covered under the group health plan of Y as

of September 29, 2001.

(ii) C and C’s spouse experience a

qualifying event on September 28, 2001, and

the maximum coverage period (generally 18

months) is measured from that date. (This is

the case even if, for part or all of the FMLA

leave, C fails to pay the employee portion of

premiums for coverage under the group

health plan of Y and C or C’s spouse is not

covered under Y’s plan. See Q&A–3 of this

section.)

Q–3: If an employee fails to pay the

employee portion of premiums for

coverage under a group health plan

during FMLA leave or declines coverage

under a group health plan during FMLA

leave, does this affect the determination

of whether or when the employee has

experienced a qualifying event?

A–3: No. Any lapse of coverage under

a group health plan during FMLA leave

is irrelevant in determining whether a

set of circumstances constitutes a

qualifying event under Q&A–1 of this

section or when such a qualifying event

occurs under Q&A–2 of this section.

Q–4: Is the application of the rules in

Q&A–1 through Q&A–3 of this section

affected by a requirement of state or

local law to provide a period of coverage

longer than that required under FMLA?

A–4: No. Any state or local law that

requires coverage under a group health

plan to be maintained during a leave of

absence for a period longer than that

required under FMLA (for example, for

16 weeks of leave rather than for the 12

weeks required under FMLA) is

disregarded for purposes of determining

when a qualifying event occurs under

Q&A–1 through Q&A–3 of this section.

Q–5: May COBRA continuation

coverage be conditioned upon

reimbursement of the premiums paid by

the employer for coverage under a group

health plan during FMLA leave?

A–5: No. The U.S. Department of

Labor has published rules describing the

circumstances in which an employer

may recover premiums it pays to

maintain coverage, including family

coverage, under a group health plan

during FMLA leave from an employee

who fails to return from leave. See 29

CFR 825.213. Even if recovery of

premiums is permitted under 29 CFR

825.213, the right to COBRA

continuation coverage cannot be

conditioned upon the employee’s

reimbursement of the employer for

premiums the employer paid to

maintain coverage under a group health

plan during FMLA leave.

Approved: December 18, 2000.

Robert E. Wenzel,

Deputy Commissioner of Internal Revenue.

Jonathan Talisman,

Acting Assistant Secretary of the Treasury.

[FR Doc. 01–5 Filed 1–9–01; 8:45 am]

BILLING CODE 4830–01–U

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Parts 95 and 177

[USCG–1998–4593]

RIN 2115–AF72

Revision to Federal Blood Alcohol

Concentration (BAC) Standard for

Recreational Vessel Operators

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

SUMMARY: The Coast Guard is revising

the Federal Blood Alcohol

Concentration (BAC) standard under

which a recreational vessel operator

1860 Federal Register / Vol. 66, No. 7 / Wednesday, January 10, 2001 / Rules and Regulations

would be considered operating while

‘‘intoxicated.’’ For recreational vessel

operators, the final rule lowers the

current Federal BAC threshold from .10

BAC to .08 BAC. This change is

appropriate because boating accident

statistics show that alcohol use remains

a significant cause of recreational

boating deaths and because we support

a trend in State recreational boating

laws toward the .08 BAC standard.

Further, the revised Federal BAC

standard does not supercede or preempt

any enacted State BAC standard.

Additionally, the final rule replaces the

term ‘‘intoxicated’’ with the phrase

‘‘under the influence of alcohol or a

dangerous drug.’’ This change brings the

regulations into conformance with

current statutory language. The final

rule is expected to reduce the number

of recreational boating deaths and

injuries resulting from accidents caused

by operators under the influence of

alcohol or a dangerous drug.

DATES: This final rule is effective March

12, 2001.

ADDRESSES: Comments and material

received from the public, as well as

documents mentioned in this preamble

as being available in the docket, are part

of docket USCG–1998–4593 and are

available for inspection or copying at

the Docket Management Facility, U.S.

Department of Transportation, room PL–

401, 400 Seventh Street SW.,

Washington, DC, between 9 a.m. and 5

p.m., Monday through Friday, except

Federal holidays.

You may obtain a copy of this rule by

calling the U.S. Coast Guard Infoline at

1–800–368–5647 or by accessing either

the Web Site for the Office of Boating

Safety at http://www.uscgboating.org, or

the Internet Site for the Docket

Management Facility at http://

dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: If

you have questions on this 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 cperry@comdt.uscg.mil. If you have

questions on viewing the docket, call

Dorothy Beard, Chief, Dockets,

Department of Transportation,

telephone 202–366–9329.

SUPPLEMENTARY INFORMATION:

Background and Purpose

On December 14, 1987, we published

a final rule in the Federal Register (52

FR 47526), in which we set a Federal

standard for intoxication applicable to

recreational vessel operators using a .10

BAC. The rule adopted any enacted

State BAC standard of intoxication as

the Federal BAC standard, and applied

the State BAC standard to recreational

vessel operators within that State. If a

State did not have an enacted BAC

standard for ‘‘intoxication,’’ a provision

allowed us to adopt a State BAC

standard for ‘‘under the influence’’ or

‘‘while impaired,’’ instead of

‘‘intoxicated.’’ In that final rule, we

noted that we would consider revising

the Federal BAC standard if the States

developed a trend toward adopting the

.08 BAC standard for operating a vessel

on the water.

We began this rulemaking project in

response to recommendations from the

National Boating Safety Advisory

Council (NBSAC), to update the existing

regulations, and to ensure that

terminology in our regulations conforms

with current statutory authorities.

Although the number of boating

deaths dropped from 1100 in 1986 to

734 in 1999, the number of fatal

incidents where alcohol was reported as

a causal factor remains stable at about

120. A review of statistics on

recreational boating accidents during

1999 showed that there was evidence, or

a reasonable likelihood, that alcohol

involvement in reported accidents

accounted for 26 percent of all boating

fatalities.

The Oil Pollution Act of 1990 revised

46 U.S.C. 2302(c) by substituting the

term ‘‘under the influence of alcohol, or

a dangerous drug in violation of a law

of the United States’’ for the term

‘‘intoxicated.’’ As a result, the terms

‘‘intoxication’’ and ‘‘intoxicated,’’ used

in 33 CFR parts 95 and 177, no longer

conform to the statutory authority. This

rule revises them accordingly.

After studying recreational boating

safety regulations in October 1997,

NBSAC recommended that the Coast

Guard track State BAC levels. They

suggested that if we found a trend

toward revising State standards to .08

BAC, then we should support that effort

by revising the Federal standard, found

in 33 CFR 95.020, to .08 BAC as well.

In 1987 only 21 States had enacted

statutes using a BAC to define

‘‘intoxication’’ or ‘‘under the influence’’

for recreational vessel operation.

Nineteen States used a .10 BAC and two

States used a .08 BAC. Today 54 State

jurisdictions, as defined in 46 U.S.C.

2101(36), have a BAC standard. Thirtyfour use .10 BAC, nineteen use .08 BAC,

and one uses .08 BAC only when there

has been an injury. Also, eleven of the

original twenty-one States and three

additional States that initially set a .10

BAC standard have revised their

standard from .10 BAC to .08 BAC. We

acknowledge that the trend among

States is toward using a .08 BAC

standard, and we are revising the

Federal BAC standard accordingly. We

will continue to adopt a State’s BAC

standard for waters under the State’s

jurisdiction.

In a memorandum dated March 3,

1998, the President directed the

Secretary of Transportation to develop

an Action Plan to promote adoption of

the .08 BAC standard for operating a

vehicle on ‘‘Federal property, including

areas in national parks, and on

Department of Defense installations, and

ensuring strong enforcement and

publicity of this standard.’’ The

Secretary’s Action Plan included the

proposed revision of the Federal BAC

standard for operator’s of recreational

vessels, providing support for the DOT

effort on water as well as on land. The

Federal BAC standard for operators of

vessels that are inspected, or subject to

inspection under Chapter 33 of Title 46,

United States Code, will remain at .04

BAC.

Regulatory History

On March 16, 2000, we published a

notice of proposed rulemaking entitled

Revision to Federal Blood Alcohol

Concentration (BAC) Standard for

Recreational Vessel Operators in the

Federal Register (65 FR 14223). We

received 20 letters commenting on the

proposed rule. No public hearing was

requested and none was held.

Discussion of Comments and Changes

We received a total of 20 comments

on the proposed revisions to the

regulations during the comment period.

Two of the comments were from State

Boating Law Administrators and an

additional comment was submitted by

the National Association of State

Boating Law Administrators (NASBLA).

Two other comments were submitted by

the National Boating Federation (NBF)

and the Boaters Against Drunk Driving

(BADD).

Twelve of the comments, including

the comments from the Missouri and the

California Boating Law Administrators,

NASBLA, NBF and BADD, generally

supported revising the Federal BAC

standard from .10 BAC to .08 BAC.

One comment supporting the BAC

revision suggested that in addition to

lowering the BAC standard, the Coast

Guard needs to increase its detection

and arrest of intoxicated operators;

enforcement cannot be borne solely by

the States.

Eight of the comments generally

opposed revising the Federal BAC

standard from .10 BAC to .08 BAC,

several suggesting that the change

would do little or nothing to reduce the

number of drunk boaters.

Federal Register / Vol. 66, No. 7 / Wednesday, January 10, 2001 / Rules and Regulations 1861

One comment stated that there is not

enough funding to enforce the new .08

BAC level.

Several other comments stated that

we needed something else instead of

new laws, either more education, more

boater awareness, more enforcement, or

more life saving.

Another comment suggested that not

many accidents actually involved

individuals with a BAC between .10 and

.08.

One comment stated that machines

testing BAC are inaccurate compared to

blood tests, are polluted by previous

tests administered, that individual

health condition, fat to muscle ratio,

and age determines the effect of alcohol

on the individual, and suggested that

behavior is a better indicator than BAC

level.

One comment expressed concern that

the change would send the wrong

message to law enforcement officers and

adversely affect the wrong people, the

dinner crowd.

Another comment asserted that most

arrests for BUI are made in harbors to

people in dinghies or powerboats

exceeding the 6 knot speed limit and

that most accidents occur outside of

harbors where speed, adherence to rules

of the road and sheer stupidity are not

monitored.

When setting the initial standard at

.10 BAC, we decided against .08 BAC

because the majority of States then used

a .10 BAC. However, in view of the

Presidential initiative to establish a .08

BAC standard on the land and the

increasing number of States setting a .08

BAC standard on the water, we’ve

decided it is now appropriate to revise

the Federal standard on the water to .08

BAC. The revised standard is not an

attempt at zero tolerance policy and will

neither increase the cost of enforcement

nor change the effectiveness of the BAC

testing equipment currently in use.

This rulemaking would impose no

costs for the boating public or even to

the Government, since the Coast Guard

Boarding Officer personnel already

enforce the .08 BAC or other BAC level

in those States with such a BAC level.

Boating accident statistics show that

alcohol use remains a significant cause

of recreational boating deaths, and we

support the trend in State boating laws

toward the .08 BAC standard. The rule

should reduce the number of

recreational boating deaths and injuries

resulting from accidents caused by

operators under the influence of alcohol

or a dangerous drug.

The Coast Guard will continue its

efforts to make boaters more aware of

the effects of alcohol on operation of a

recreational vessel and to work with

State law enforcement officers to ensure

appropriate levels of enforcement on the

water. We will continue to enforce all

appropriate laws and regulations,

including negligent operation of a vessel

and the navigation rules. Comments

suggesting changes related to increasing

State funding and revising the BAC

standard for commercial vessel

operators are beyond the scope of this

rulemaking.

After considering all of the above

comments, the Coast Guard has decided

to adopt the revision to the BAC

standard and make other technical

changes as proposed.

Regulatory Evaluation

This rule is not a ‘‘significant

regulatory action’’ under section 3(f) of

Executive Order 12866, Regulatory

Planning and Review, 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 final Regulatory Evaluation under

paragraph 10e of the regulatory policies

and procedures of DOT follows:

1. Cost of Rule

This rulemaking would impose no

costs for the boating public. Costs to the

government would be non-existent as

well because the Coast Guard already

trains its Boarding Officer personnel on

use of the .08 BAC level to properly

prepare them for working in those States

with such a BAC level.

2. Benefit of Rule

This rule is appropriate because

boating accident statistics show that

alcohol use remains a significant cause

of recreational boating deaths and

because we support a trend in State

boating laws toward the .08 BAC

standard. The rule is expected to reduce

the number of recreational boating

deaths and injuries resulting from

accidents caused by operators under the

influence of alcohol or a dangerous

drug.

Small Entities

Under the Regulatory Flexibility Act

(5 U.S.C. 601–612), we considered

whether this 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 revision of the Federal BAC

standard applies to operators of

recreational vessels on waters subject to

the jurisdiction of the United States, as

defined in 33 CFR 2.05–30. This

revision of the Federal BAC standard

will continue to apply to recreational

vessels owned in the United States,

while operating on the high seas, as

defined in 33 CFR 2.05–1. Further, since

this rule would continue to adopt State

enacted BAC standards, recreational

vessel operators in States with enacted

BAC standards would not be subject to

a new BAC standard unless a State

changes its own enacted BAC standard.

Only those recreational vessel operators

in States without enacted BAC

standards and on navigable waters of

the U.S. outside of the States would be

subject to a new BAC standard.

Because the provisions of the

Regulatory Flexibility Act do not apply

to individuals, the Coast Guard certifies

under 5 U.S.C. 605(b) that this final rule

will not have a significant economic

impact on a substantial number of small

entities.

Assistance for Small Entities

Under section 213(a) of the Small

Business Regulatory Enforcement

Fairness Act of 1996 (Pub. L. 104–121),

we offered to assist small entities in

understanding the rule so that they can

better evaluate its effect on them and

participate in the rulemaking. We

provided the name, telephone number

and e-mail address of a contact for small

entities if they felt that the rule would

affect their small business, organization,

or governmental jurisdiction and if they

had questions concerning its provisions

or options for compliance. 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).

Collection of Information

This rule calls for no new collection

of information under the Paperwork

Reduction Act of 1995 (44 U.S.C. 3501–

3520).

1862 Federal Register / Vol. 66, No. 7 / Wednesday, January 10, 2001 / Rules and Regulations

Federalism

We have analyzed this rule under

Executive Order 13132, Federalism, and

have determined that, because the

Federal BAC standard will not

supercede or preempt any enacted State

BAC standard, this rule does not have

implications for federalism under that

Order.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act

of 1995 (2 U.S.C. 1531–1538) requires

Federal agencies to assess the effects of

their regulatory actions not specifically

required by law. 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 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.

Taking of Private Property

This rule will not effect a taking of

private property or otherwise have

taking implications under Executive

Order 12630, Governmental Actions and

Interference with Constitutionally

Protected Property Rights.

Civil Justice Reform

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.

Protection of Children

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

does not concern an environmental risk

to health or risk to safety that may

disproportionately affect children.

Environment

We considered the environmental

impact of this 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 makes a minor revision to the

Federal BAC standard for the level at

which an operator of a recreational

vessel is deemed to be impaired. A

‘‘Categorical Exclusion Determination’’

is available in the docket where

indicated under ADDRESSES.

List of Subjects

33 CFR Part 95

Alcohol and alcoholic beverages,

Drugs, Marine safety, Vessels.

33 CFR Part 177

Alcohol and alcoholic beverages,

Drugs, Marine safety, Vessels.

For the reasons discussed in the

preamble, the Coast Guard amends 33

CFR parts 95 and 177 as follows:

PART 95—OPERATING A VESSEL

WHILE UNDER THE INFLUENCE OF

ALCOHOL OR A DANGEROUS DRUG

1. The authority citation for part 95

continues to read as follows:

Authority: 33 U.S.C. 2071; 46 U.S.C. 2302;

49 CFR 1.46.

2. Revise the part heading to read as

shown above.

§ 95.001 [Amended]

3. In § 95.001(a), remove the words

‘‘intoxication.’’ and ‘‘intoxicated’’ and

add, in their place, the words ‘‘under

the influence of alcohol or a dangerous

drug.’’

4. Amend § 95.010 by adding the

following definitions in alphabetical

order to read as follows:

§ 95.010 Definition of terms as used in this

part.

* * * * *

Blood alcohol concentration level

means a certain percentage of alcohol in

the blood.

* * * * *

State means a State or Territory of the

United States of America including but

not limited to a State of the United

States, American Samoa, the

Commonwealth of the Northern

Marianas Islands, District of Columbia,

Guam, Puerto Rico, and the United

States Virgin Islands.

* * * * *

Under the influence means impaired

or intoxicated by a drug or alcohol as a

matter of law.

* * * * *

5. Amend § 95.020 by revising the

section heading, the introductory text,

and paragraph (a) to read as follows:

§ 95.020 Standard for under the influence

of alcohol or a dangerous drug.

An individual is under the influence

of alcohol or a dangerous drug when:

(a) The individual is operating a

recreational vessel and has a Blood

Alcohol Concentration (BAC) level of

.08 percent or more, by weight, in their

blood;

* * * * *

6. Amend § 95.025 by revising the

section heading and paragraphs (a) and

(b) to read as follows:

§ 95.025 Adoption of State blood alcohol

concentration levels.

(a) This section applies to operators of

recreational vessels on waters within

the geographical boundaries of any State

that has established by statute a blood

alcohol concentration level for purposes

of determining whether a person is

operating a vessel under the influence of

alcohol.

(b) If the applicable State statute

establishes a blood alcohol

concentration level at which a person is

considered or presumed to be under the

influence of alcohol, then that level

applies within the geographical

boundaries of that State instead of the

level provided in § 95.020(a) of this part.

* * * * *

§ 95.030 [Amended]

7. Amend § 95.030 by revising the

section heading and the introductory

text to read as follows:

§ 95.030 Evidence of under the influence

of alcohol or a dangerous drug.

Acceptable evidence of when a vessel

operator is under the influence of

alcohol or a dangerous drug includes,

but is not limited to:

* * * * *

§ 95.040 [Amended]

8. In § 95.040, paragraph (a), remove

the word ‘‘intoxicated’’ and add, in its

place, the words ‘‘under the influence of

alcohol or a dangerous drug.’’

PART 177—[AMENDED]

9. The authority citation for part 177

continues to read as follows:

Authority: 46 U.S.C. 4302, 4311; 49 CFR

1.45 and 1.46.

§ 177.07 [Amended]

10. In § 177.07(b), remove the word

‘‘intoxicated’’ and add, in its place, the

words ‘‘under the influence of alcohol

or a dangerous drug.’’

Dated: December 27, 2000.

Terry M. Cross,

Rear Admiral, Coast Guard, Assistant

Commandant for Operations.

[FR Doc. 01–551 Filed 1–9–01; 8:45 am]

BILLING CODE 4910–15–P