[Federal Register Volume 65, Number 52 (Thursday, March 16, 2000)]
[Proposed Rules]
[Pages 14223-14226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-6224]


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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: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to revise the Federal Blood Alcohol 
Concentration (BAC) standard under which a recreational vessel operator 
would be considered operating while ``intoxicated.'' For recreational 
vessel operators, the proposed rule would lower 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 proposed Federal BAC standard will not supercede or preempt any 
enacted State BAC standard. Additionally, the proposed rule would 
replace the term ``intoxicated'' with the phrase ``under the influence 
of alcohol or a dangerous drug.'' This change would bring the 
regulations into conformance with current statutory language. The 
proposed 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: Comments and related material must reach the Docket Management 
Facility on or before July 14, 2000.

ADDRESSES: To make sure your comments and related material are not 
entered more than once in the docket, 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.

FOR FURTHER INFORMATION CONTACT: For questions on this proposed rule, 
contact

[[Page 14224]]

Carlton Perry, Project Manager, Office of Boating Safety, U.S. Coast 
Guard, by telephone at 202-267-0979 or by e-mail at 
[email protected]. For questions on viewing or submitting material 
to the docket, call Dorothy Walker, Chief, Dockets, Department of 
Transportation, telephone 202-366-9329.
    You may obtain a copy of this notice 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.

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-1998-
4593), 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, hand-delivery, fax, or 
electronically to the Docket Management Facility at the address under 
ADDRESSES; but please submit your comments and material 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 a public meeting 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

    (a) Regulatory History. 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 blood alcohol concentration (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.
    (b) Reasons for this rulemaking. We drafted the changes proposed in 
this rulemaking in response to recommendations from the National 
Boating Safety Advisory Council (NBSAC), as a way 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 
821 in 1997, the number of incidents where alcohol was positively 
identified as a factor remained stable at about 110. A review of 
statistics on recreational boating accidents during 1997 showed that 
there was evidence, or a reasonable likelihood, that alcohol was 
consumed by the vessel's occupants in 27 percent of all boating 
accidents involving a fatality.
    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.'' The terms ``intoxication'' and ``intoxicated'' as used 
in 33 CFR parts 95 and 177, no longer conform to the current statutory 
authority and should be revised 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. Thirty-four use .10 BAC, nineteen use .08 BAC, and 
one uses .08 only when there has been an injury. Also, nine of the 
original twenty-one States 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 proposing to revise the Federal BAC standard 
accordingly.
    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 includes 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.

Discussion of Proposed Rule

    1. The headings for 33 CFR part 95 and Sec. 95.020, as well as the 
text for Secs. 95.001, 95.030, 95.040, and 177.07 would be revised by 
substituting the phrase ``under the influence of alcohol or a dangerous 
drug'' for ``intoxication'' or ``intoxicated.'' This would bring the 
text into conformance with current statutory authority.
    2. Section 95.010 would be revised by adding definitions required 
to bring this part in line with the new terminology and standards.
    3. Section 95.020 would be revised to adopt the .08 BAC standard as 
the Federal standard.
    4. Section 95.025 would be revised to address adoption of State BAC 
standards that are considered comparable to the Federal BAC standard of 
``under the influence'' of alcohol.
    The current regulations adopt State enacted BAC standards for 
``intoxication.'' If a State does not have a BAC standard for 
``intoxication,'' the regulations adopt State BAC standards for ``under 
the influence,'' ``impairment,'' or any comparable BAC standard.
    The proposed rule would similarly adopt enacted State BAC standards 
for ``under the influence.'' (typically .10 BAC or .08 BAC). However, 
if a State has not enacted a BAC standard for ``under the influence,'' 
the proposed rule would adopt an enacted State BAC standard for 
``intoxication,'' ``impairment,'' or a comparable BAC standard.
    In States that have enacted multiple BAC standards for ``under the 
influence,'' which are applicable to specific segments of the boating 
community--e.g. .02 BAC for operators under 21 years of age, the 
proposed rule

[[Page 14225]]

would adopt only the State BAC standard that applies to the general 
boating population.
    Under the proposed rule, the revised Federal .08 BAC standard would 
only apply directly to recreational vessels operated in Iowa and New 
Mexico, which have not enacted a BAC standard; in South Carolina when 
its limited statute involving injury is not applicable; and, as defined 
in 33 CFR 2.05, on the navigable waters of the U.S. beyond State 
boundaries and on the high seas, for recreational vessels owned in the 
United States.

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 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 Proposed Rule

    This proposed 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 law toward the .08 BAC standard. The proposed 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 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 proposed revision of the Federal BAC standard applies to 
operators of recreational vessels on waters subject to the jurisdiction 
of the United States. These waters include navigable waters of the 
United States (as defined in 33 CFR 2.05), waters on lands owned by the 
United States (under 33 U.S.C. 733 by an authorized Federal Officer or 
over which the United States retains concurrent or exclusive 
jurisdiction), and waters within the territories and possessions of the 
United States and the Trust Territories of the Pacific Islands. This 
proposed 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). Further, since this proposed 
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 revises its own enacted 
BAC standard. Only those recreational vessel operators in States 
without enacted BAC standards and on navigable waters of the U.S. 
beyond State boundaries 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 proposed rule would not have a 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 (Pub. L. 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 
[email protected].

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 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) 
governs the issuance of Federal regulations that require unfunded 
mandates. An unfunded mandate is a regulation that requires a State, 
local or tribal government, or the private sector to 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.

Civil Justice Reform

    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 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 proposed rule and 
concluded that, under figure 2-1, paragraph (34)(a), of Commandant 
Instruction M16475.1C, this proposed rule is categorically excluded 
from further environmental documentation. The proposed 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

[[Page 14226]]

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, Recreational 
vessels, Unsafe conditions.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR parts 95 and 177 as follows:

SUBCHAPTER F--[AMENDED]

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.


Sec. 95.001  [Amended]

    3. In Sec. 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 Sec. 95.010 by adding the following undesignated 
paragraphs in alphabetical order with the rest of the section as 
follows:


Sec. 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 Sec. 95.020 by revising the section heading, the 
introductory text, and paragraph (a) to read as follows:


Sec. 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 Sec. 95.025 by revising the section heading, and 
paragraphs (a) and (b) to read as follows:


Sec. 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 
Sec. 95.020(a) of this part.
* * * * *


Sec. 95.030  [Amended]

    7. Amend Sec. 95.030 by revising the section heading and the 
introductory text to read as follows:


Sec. 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:
* * * * *


Sec. 95.040  [Amended]

    8. In Sec. 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--CORRECTION OF ESPECIALLY HAZARDOUS CONDITIONS

    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.


Sec. 177.07  [Amended]

    10. In Sec. 177.07(b), remove the word ``intoxicated'' and add, in 
its place, the words ``under the influence of alcohol or a dangerous 
drug.''
* * * * *

    Dated: March 8, 2000.
Ernest R. Riutta,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Operations.
[FR Doc. 00-6224 Filed 3-15-00; 8:45 am]
BILLING CODE 4910-15-U