[Federal Register Volume 67, Number 39 (Wednesday, February 27, 2002)]
[Rules and Regulations]
[Pages 8881-8885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4633]


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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: Final rule.

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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: 202-267-0979. If you 
have questions on viewing the docket, call Dorothy Beard, Chief, 
Dockets, Department of Transportation, telephone 202-366-5149.

SUPPLEMENTARY INFORMATION:

[[Page 8882]]

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

[[Page 8883]]

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

[[Page 8884]]

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
----------------------------------------------------------------------------------------------------------------
                                                                        Number of       Benefit if accidental
     Severity category of injury           Benefit of averting an       injuries     injuries and fatalities are
                                       accidental injury or fatality   (1996-2000)             averted
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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)=                     0  ($172,500)(0) = 0.
                                        $172,500.
Severe...............................  ($3,000,000)(0.1875)=                     0  ($562,500)(0) = 0.
                                        $562,500.
Critical.............................  ($3,000,000)(0.7625)=                     3  ($2,287,500)(3) =
                                        $2,287,500.                                  $6,862,500.
Fatal................................  ($3,000,000)(1.000)=                      7  ($3,000,000)(7) =
                                        $3,000,000.                                  $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 
[email protected].
    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).

[[Page 8885]]

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 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 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 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) 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.
[FR Doc. 02-4633 Filed 2-26-02; 8:45 am]
BILLING CODE 4910-15-U