02-4633. Wearing of Personal Flotation Devices (PFDs) by Certain Children Aboard Recreational Vessels

AGENCY:

Coast Guard, DOT.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is requiring that children under age 13 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 rule should reduce the number of children who drown because they were not wearing lifejackets.

DATES:

This final rule is effective March 29, 2002.

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-2000-8589 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 also find this docket on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this final rule, call Carl Perry, Coast Guard, telephone: [phone]. If you have questions on viewing the docket, call Dorothy Beard, Chief, Dockets, Department of Transportation, telephone [phone].

SUPPLEMENTARY INFORMATION:

Regulatory History

On May 1, 2001, we published in the Federal Register [66 FR 21717] a notice of proposed rulemaking (NPRM) entitled, “Wearing of Personal Flotation Devices (PFDs) by Certain Children Aboard Recreational Vessels”. We received 46 letters commenting on the proposed rule. No public hearing was requested and none was held.

The NPRM followed two published notices of request for comments, both titled “Recreational Boating Safety—Federal Requirements for Wearing Personal Flotation Devices,” under the docket number CGD 97-059. This first appeared in the Federal Register on September 25, 1997 [62 FR 50280]; the second, which extended the comment period, on March 20, 1998 [63 FR 13586]. The comments received in response to these notices were discussed in the NPRM [66 FR 21717].

After summarizing the comments received in response to the NPRM, we consulted the National Boating Safety Advisory Council (NBSAC) at its meeting in October 2001 regarding the results. NBSAC recommended that we proceed to publish a final rule, as proposed.

Background and Purpose

The number of deaths by drowning of children under 13 has decreased from 26 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 engaged in 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 instating 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 adopts States' thresholds of age, will encourage States to establish their own requirements for children and will draw the several requirements into greater uniformity nationwide.

Discussion of Comments and Changes

By the close of the comment period on August 30, 2001, we received 46 comments from the following categories:

11 recreational boaters;

7 governmental agencies;

3 representatives of the boating industry;

1 general business;

1 boating organization;

2 safety organizations; and

The National Transportation Safety Board (NTSB). Twenty-two comments supported the rule as proposed, eight supported it with changes, and sixteen opposed it.

Most of the comments that supported the rule as proposed stated that the rule would be a positive step toward reducing drownings and toward a uniform requirement across the States. Two comments indicated that requiring children to wear PFDs would make boating safer and more pleasant for parents because parents themselves often wear PFDs, again to influence children. Parents also know that mishaps happen quickly and that they cannot always watch children on a boat so use of PFDs increases their sense of safety. In separate comments, two agencies in North Carolina stated that that State's data on drownings indicate that most children who drowned there were not wearing PFDs at the time of the incidents.

Eight comments either suggested helpful changes or stated that they could support the rule, or at least not object to it if certain changes were made.

Two comments requested that the rule allow the use of automatic, inflatable PFDs or safety harnesses on all vessels or at least on every vessel more than 21 feet in length.

But the proposed rule did not intend to prohibit the use of inflatable PFDs for children. The Coast Guard has already approved automatic, hybrid, inflatable PFDs for children, which means these PFDs meet the requirements of this final rule. Once the Coast Guard has approved automatic, fully inflatable PFDs for children to wear, such devices will also meet these requirements. This rule also does not prohibit the use of a safety harness, but does not allow safety harnesses to substitute for wearable PFDs. The Coast Guard has decided not to revise this rule to take account of these two comments, because the rule anticipates them.

One comment suggested limiting the rule to children on boats less than 18 feet that are under way or making way, while another suggested limiting it to children on the decks of vessels more than 65 feet.

The Coast Guard has no data indicating any specific length above which children become safe even without wearing lifejackets. Therefore, we have retained the wearing requirement as proposed without any such length.

Several comments asked the Coast Guard to lower the age limit because many 12-year-olds are better swimmers than many adults. One comment suggested that the age be lowered to 6 years old when a vessel is not under way. Another comment recommended exempting those children who have passed a swimming course or a swimming-proficiency test.

In a study of Recreational Boating Safety Study from 1993, NTSB recommended that the Coast Guard work with the National Association of State Boating Law Administrators (NASBLA) and the American Academy of Pediatrics to develop “a uniform component of standards that establishes an age at or below which all children should be required by all States to wear personal flotation devices while in recreational boats.” NTSB proposed this strategy instead of one that would set specific Federal age-based requirements for wearing PFDs. The Coast Guard, these two organizations, and others endorsed mandatory use of lifejackets for children 12 and under. The other organizations were the National Safety Council, NBSAC, the U.S. Coast Guard Auxiliary, the National Water Safety Congress, the National Recreational Boating Safety Coalition, the National Safe Boating Council, the National Marine Manufacturers Association, the PFD Manufacturers Association, the American Medical Association, the American Camping Association, and the National Safe Kids Campaign. At least 14 States selected the same age-based requirements for children to wear lifejackets, either under 13 years or 12 years and under, which squares with the recent recommendations of NBSAC and NTSB.

Therefore, we have retained in this final rule the age-based requirement as proposed. The Coast Guard has decided to not preempt the States from setting their own wearing requirements different than the Federal ones.

Another comment suggested that the current wording of “appropriate PFDs” is too vague and requested that the “appropriate” be replaced with “a Type I, II, III, or V PFD.”

In the preamble to the NPRM [66 FR 21717], under paragraph 2 of the discussion of the proposed rule for section 175.15, we stated that the proposed requirement would be to wear lifejackets approved by the Coast Guard. We agree with the comment and have revised this section to read, “ * * * appropriate PFDs approved by the Coast Guard.”

In its comment, the NTSB requested that the Coast Guard reconsider allowing States to set their own age-based requirements, even if lower than 12 years old. The NTSB urged the Coast Guard to establish a uniform standard for the mandatory use of PFDs for all children under age 13. According to NTSB, a national standard would help parents and law-enforcement agencies by minimizing confusion about which children must wear PFDs in which States. Another comment also asked that the rule preempt the different age-based requirements from State to State.

Again, the Coast Guard has decided not to preempt the States from setting their own wearing requirements different from the Federal ones.

Seven of the sixteen opposing comments stated that mandatory use of lifejackets is a State issue.

One comment expressed concern that Federal action would interfere with individual State efforts to mandate use of PFDs. It and another suggested that each State be allowed to continue drafting laws tailored to its own distinct waters and boating community. Another comment stated that the low number of children's drownings that appear in national statistics indicate that States are handling the issue properly. Two others disapproved of a Federal requirement because it would create confusion at a time when most States already require that children wear lifejackets. One of those, from the Virginia Department of Game and Inland Fisheries, stated that, because under the proposed rule States would continue to enforce existing age limits, it is “unclear how [that rule] would encourage greater uniformity of boating laws.” It added that Virginia's own data on boating accidents did not support imposing the requirement on “potentially hundreds of thousands of ‘recreational vessel users'.”

This final rule acknowledges the law-enforcement efforts of the many States that already require children under specific ages to wear lifejackets while on board recreational vessels and, by adopting the ages for wearing lifejackets within those States, does not interfere with those efforts. It adds authority for boarding officers of the Coast Guard, enforcing Federal law, to support those efforts. Further, it encourages other States to undertake their own such efforts and yet does so without imposing a Federal mandate.

Other opposing comments stated that national statistics do not warrant a Federal rule, and one suggested that the Coast Guard focus on education rather than regulation. Another questioned whether the Coast Guard's own statistics supported the rule. It stated that some entries in the Boating Accident Reporting Database (BARD) first report deaths as due to drownings, which coroners later conclude were actually due to carbon-monoxide poison. Another responded that the data indicate that the rule would not have saved most children who drowned; and it concluded that age 12 “is certainly too old.”

The Coast Guard has fostered and will continue to foster safety in recreational boating through education and public awareness. However, we disagree with the comments implying that our boarding officers should not be authorized to support States' law-enforcement officers from enforcing requirements for children to wear lifejackets within the States with such requirements. Further, the nationwide requirement for children to wear lifejackets will encourage other States to enact such requirements. Its applying “under 13” agrees with recommendations from NBSAC and the NTSB. Therefore, we have retained the age-based requirement as proposed.

Other comments objecting to the rule noted the Coast Guard's limited funds for enforcement. One stated that because most States already have a mandated age limit, generally 12, the Coast Guard would be wasting valuable man-hours handing out citations like parking tickets. It also voiced concern that the citations could lead to higher insurance costs for individual boaters. Another stated that a Federal rule would be ineffective because there would be no added funding for enforcement.

In the preamble to the NPRM, under paragraph 1 of the Regulatory Evaluation discussing the costs of the proposed rule, we stated that, “* * * the Coast Guard already trains its Boarding Officers to check safety equipment.” The Coast Guard has decided that the proposed rule anticipates these comments and adopts that rule, unchanged in these respects, as final.

Three comments voiced concern that the proposed rule did not consider how uncomfortable lifejackets can be for children, especially those boating in hot, humid climates. One of the three stated that children wearing lifejackets in those climates could suffer heat stroke and argued that the rule would discriminate against children who are under 13 but who are good, even excellent, swimmers. Another added that the Coast Guard could reduce the number of drownings more effectively if it focused educational campaigns on adults who use canoes and johnboats to go fishing or bird watching. These people view boating only as a means to doing the primary activity, so they may not be as aware of boating safety as boaters with children on board.

Some models and types of lifejackets are more comfortable than others, and designs are ever-evolving. Voluntary swimming is not the same as involuntary swimming after falling overboard or after a collision. Again, the Coast Guard has fostered and will continue to foster recreational boating safety through education and public awareness, even where boating is involved but where it is not the primary activity. The Coast Guard adopts the proposed rule, unchanged in these respects, as final.

Other comments stated that the decision whether to place a child in a lifejacket should belong to the parents or guardians and that the government cannot protect people from their own poor judgment.

The final rule does not preclude parents and guardians from the exercise of good judgment, but it does prohibit the operator of the boat from getting under way until each child onboard is wearing a lifejacket. The rule is likely to have the same effect on the judgment of parents and guardians as laws that require the use of seatbelts and special seats for children in cars. Even if “government cannot protect people from their own poor judgment,” it can protect some people from some others' poor judgment. The Coast Guard adopts the proposed rule, unchanged in these respects, as final.

Regulatory Evaluation

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

2. Benefit of Rule

This rule is 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 1998, 14 in 1999, and 7 in 2000), 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 affects only those States 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 1996 through 2000. These injuries and drownings might 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 also 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 January 29, 2002, sets the benefit of averting an accidental fatality in regulatory analyses at $3.0 million. Another memorandum from that Office, dated January 8, 1993, advises agencies within the Department to classify injuries as minor, moderate, serious, severe, critical, or fatal. The latter memorandum also assigns to each degree of injury averted a certain percentage of the value of society's willingness to pay to avert a fatality. To calculate the value of society's willingness to pay to avert each degree of injury, we multiplied $3.0 million by the percentage 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:

Benefit of Averting Accidental Injuries and Fatalities for States Without Existing Regulations

Severity category of injury	Benefit of averting an accidental injury or fatality	Number of injuries (1996-2000)	Benefit if accidental injuries and fatalities are averted
Minor	($3,000,000)(0.0020)= $6,000	0	($6,000)(0)= 0.
Moderate	($3,000,000)(0.0155)= $46,500	1	($46,500)(1) = $46,500.
Serious	($3,000,000)(0.0575)= $172,500	0	($172,500)(0) = 0.
Severe	($3,000,000)(0.1875)= $562,500	0	($562,500)(0) = 0.
Critical	($3,000,000)(0.7625)= $2,287,500	3	($2,287,500)(3) = $6,862,500.
Fatal	($3,000,000)(1.000)= $3,000,000	7	($3,000,000)(7) = $21,000,000.
Total		11	$27,909,000.

The total value of injuries and fatalities averted for 1996-2000 would have been $27,909,000. Therefore, the average annual value of injuries and fatalities averted would have been $5,581,800, calculated as ($27,909,000)/(5 years).

Small Entities

Under the Regulatory Flexibility Act [5 U.S.C. 601-612], we have considered whether this final rule will have a significant economic impact 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 applies to operators of recreational vessels on waters subject to the jurisdiction of the United States (as defined in 33 CFR 2.05-30). It will 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 requirement adopts the ages at or below which States require children to wear lifejackets, operators of recreational vessels either in States with such requirements or on navigable waters of the United States outside States altogether are subject to it.

Because the Regulatory Flexibility Act does not apply to individuals, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule does 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 [Public Law 104-121], we have offered to assist small entities in understanding this final rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule affects 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 [e-mail].

Small businesses may also send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal rules 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 final rule calls for no new collection of information under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501-3520].

Federalism

We have analyzed this final rule under Executive Order 13132 and have determined that, because the Federal requirement for children under 13 to wear lifejackets will not supersede or preempt any State's comparable requirement, this rule does not have implications for federalism under that Order. The Federal requirement applies only in States without comparable 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, 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 final rule does not impose an unfunded mandate.

Taking of Private Property

This final 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.

Reform of Civil Justice

This final 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 final rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule. Nor does it create an environmental risk to health or risk to safety that may disproportionately affect children; on the contrary, it advances the welfare of children.

Indian Tribal Governments

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

Energy Effects

We have analyzed this final rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that Order, because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs within OMB as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

Environment

We have considered the environmental impact of this final rule and concluded that, under figure 2-1, paragraph (34)(a), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. The rule requires 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 amends 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 § 175.3 by adding the following definition in alphabetical order to read as follows:

§ 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 § 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:

§ 175.15

Personal flotation devices required.

* * * * *

(c) No person may use a recreational vessel unless each child under 13 years old aboard is wearing an appropriate PFD approved by the Coast Guard; or

(1) Each child not wearing such a PFD is below decks or in an enclosed cabin; or

(2) The vessel is not under way.

4. Add a new § 175.25 to subpart B, to read as follows:

§ 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 § 175.15(c) of this part, applies within the geographical boundaries of that State.

Dated: February 15, 2002.

Terry M. Cross,

Rear Admiral, U.S. Coast Guard, Assistant Commandant for Operations.