[Federal Register Volume 69, Number 146 (Friday, July 30, 2004)]
[Rules and Regulations]
[Pages 45589-45591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-17411]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 175

[USCG-2000-8589]
RIN 1625-AA62 (Formerly 2115-AG04)


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

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: This final rule adopts, with two changes, the interim rule 
published on June 24, 2002, which required certain children under the 
age of thirteen aboard recreational vessels to wear a personal 
flotation device (PFD). It changes the requirement from ``each child'' 
under the age of thirteen, to ``certain children'' under the age of 
thirteen, and addresses in more detail when Federal or State 
requirements apply. These changes clarify the Coast Guard's enforcement 
of existing State standards. This final rule is intended to reduce the 
number of children who drown because they are not wearing PFDs.

DATES: This final rule is effective August 30, 2004.

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 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 Final 
Rule, call Carlton Perry, U.S. Coast Guard, telephone: 202-267-0979. If 
you have questions on viewing the docket, call Andrea M. Jenkins, 
Program Manager, Docket Operations, telephone 202-366-0271.

SUPPLEMENTARY INFORMATION:

Regulatory History

    This rulemaking began with our publication of two notices 
requesting comment, both titled ``Recreational Safety-Federal 
Requirements for Wearing Personal Flotation Devices,'' in the Federal 
Register. We published the first notice in the Federal Register on 
September 25, 1997, CGD 97-059 [62 FR 50280]. It included questions 
about potential PFD-wearing requirements for recreational boaters. We 
extended the comment period in a notice published in the Federal 
Register on March 20, 1998, CGD 97-059 [63 FR 13586]. We published 
another notice, focusing on certain children, riders on personal 
watercraft, and persons being towed behind recreational vessels, in the 
Federal Register on October 5, 1999, USCG-1999-6219 [64 FR 53971].
    We received approximately 600 comments for the first notice and 
another 600 comments for the second notice. We developed a Notice of 
Proposed Rulemaking (NPRM), after considering all the comments, 
proposing Federal requirements for certain children to wear personal 
flotation devices (PFDs).
    We published an NPRM titled ``Wearing of Personal Flotation Devices 
(PFDs) by Certain Children Aboard Recreational Vessels'' in the Federal 
Register on May 1, 2001 [66 FR 21717]. The NPRM proposed that children 
under the age of thirteen be required to wear PFDs when they are above 
decks aboard recreational vessels that are under way. The NPRM 
discussed the approximately 1,200 comments that we received in response 
to the two requests for comments. No public hearing was requested and 
none was held.
    By the close of the NPRM comment period on August 30, 2001, we had 
received 46 more comments. Of those, 22 comments supported the rule as 
proposed in the NPRM, 8 supported it with changes, and 16 opposed it. 
Most comments that supported the rule as proposed in the NPRM stated 
that it would be a positive step toward reducing drownings and toward 
uniform requirements across the States. Opposing comments expressed 
concern that Federal action would interfere with individual State 
efforts to mandate the use of PFDs.
    After summarizing the comments received in response to the NPRM, we

[[Page 45590]]

consulted the National Boating Safety Advisory Council (NBSAC) at its 
meeting in October 2001 regarding those comments and recommendations. 
NBSAC recommended that we proceed to publish the Final Rule, as 
proposed in the NPRM.
    We published a Final Rule in the Federal Register on February 27, 
2002 [67 FR 8881]. The Final Rule discussed the 46 comments that we 
received in response to the NPRM. It required children under age 13 to 
wear PFDs when they are above decks aboard recreational vessels that 
are under way. The Final Rule had three distinct requirements: (1) For 
States without their own statutes or rules on ages, it established a 
Federal requirement complete in itself; (2) for States with statutes or 
rules on age only, provided for enforcing those statutes or rules in 
whole; and (3) for States with their own statutes or rules on age that 
include other qualifications, such as lengths of vessels, it provided 
for enforcing the age limits of those statutes or rules but not the 
other qualifications.
    We published a Notice of Withdrawal in the Federal Register on 
March 27, 2002 [67 FR 14645], after a State Boating Law Administrator 
alerted us to a potential conflict between our own rule and States' 
qualified statutes or rules. The same conflict was noticed as we 
prepared training guidance for the Coast Guard boarding officers. Under 
the Final Rule as published, the Coast Guard's boarding officers would 
have enforced the age requirement on all recreational vessels 
regardless of any State qualifiers. At the same time and on the same 
waters, States' boarding officers would have only been enforcing the 
age requirement on certain vessels, as determined by the State 
regulation.
    On June 24, 2002, we published in the Federal Register [66 FR 
21717] an Interim Rule with a request for comments titled ``Wearing of 
Personal Flotation Devices (PFDs) by Certain Children Aboard 
Recreational Vessels.'' Under the Interim Rule, the Coast Guard 
established a requirement for children under 13 to wear a PFD in those 
States without any requirement. It also provided for the Coast Guard to 
enforce each State's statute or rule in its entirety, including any 
qualifications. Thus, Coast Guard boarding officers will enforce the 
same requirements for wearing a PFD as do State boarding officers. We 
received 12 comments concerning the Interim Rule.
    The Interim Rule provided for enforcing existing State statutes and 
rules, and added authority for Coast Guard boarding officers to support 
those efforts. Further, we encouraged other States to undertake their 
own such efforts without imposing a Federal mandate. Four of the 12 
comments supported the rulemaking but recommended a different age 
limit. However, the Coast Guard's limit of ``under 13'' is supported by 
recommendations from NBSAC and the National Transportation Safety 
Board.

Discussion of Comments and Changes

    The Coast Guard received 12 comments in response to the Interim 
Rule. These came from: 4 recreational boaters; 4 governmental agencies; 
1 boating organization; and 3 safety or medical organizations.
    Two comments supported the rulemaking as is, stating that while 
education concerning PFD use is often effective, this rulemaking would 
provide additional incentive for parents to ensure their children are 
wearing PFDs.
    Six comments opposed the rulemaking, stating that the Federal 
government should not be involved in the decision concerning which 
children must wear PFDs. A comment from a Virginia legislative delegate 
stated that the Commonwealth's legislature had rejected such a rule 
twice. The Ohio Waterways Safety Council stated that there are more 
important boating safety issues and that the States were already 
successfully addressing the PFD matter.
    The Coast Guard did consider exempting selected States from the 
Federal regulation. However, the Coast Guard has decided that in order 
to maintain national uniformity, a Federal requirement should apply on 
waters subject to the concurrent jurisdiction of the United States and 
the State where that State has not established any requirement for 
children to wear an appropriate Coast Guard-approved PFD while aboard a 
recreational vessel.
    Four comments supported the rulemaking, but with changes. The 
American Academy of Pediatrics requested that the age be changed to 18 
and under, and that the Federal government set the minimum safety 
standard while allowing States to choose whether to exceed the Federal 
requirements. A comment from an individual requested that the age limit 
be lowered to 9 years old because a child above that age who is around 
boats would likely know how to swim. If a child does not know how to 
swim, the parent or guardian, not the government, should take 
responsibility for the child's safety, including whether the child 
should wear a PFD. The comment also suggested fines for those violating 
the Federal regulation requiring children 9 and under to wear PFDs.
    As discussed in the Interim Rule, the Coast Guard has decided to 
retain the Federal requirement that children under 13 years of age must 
wear a PFD. A maximum civil penalty of $1,100 could be assessed for a 
violation of the Federal requirement or of a State requirement being 
enforced under the Federal regulation.
    Two comments from the State of Wisconsin's Department of Natural 
Resources asked that the regulation language in Sec.  175.25 be changed 
from ``each child'' to ``certain children'' to avoid confusion when 
applying State requirements. The regulation would read, ``* * * any 
State that has established by statute or rule a requirement under which 
certain children must wear an appropriate PFD.''
    The Coast Guard agrees and has revised Sec.  175.25 to reflect the 
enforcement of State requirements requiring certain children (instead 
of each child) to wear personal flotation devices.
    The Coast Guard further expanded this section to address in more 
detail when Federal requirements apply and when State requirements 
apply. This change clarifies exactly when the Coast Guard will enforce 
existing State standards.

Regulatory Evaluation

    The analyses we conducted in connection with the interim rule all 
remain unchanged, and the Analysis Documentation prepared for the 
interim rule remains in the docket. 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 Homeland Security (DHS). 
Please consult the Regulatory Evaluation provided in the interim rule 
for further information.

List of Subjects in 33 CFR Part 175

    Marine safety.

0
Accordingly, the interim rule amending 33 CFR part 175 which was 
published at 67 FR 42488 on June 24, 2002, is adopted as a final rule 
with the following change:

[[Page 45591]]

PART 175--EQUIPMENT REQUIREMENTS

0
1. The authority citation for part 175 is revised to read as follows:

    Authority: 46 U.S.C. 4302; Department of Homeland Security 
Delegation No. 0170.1.

0
2. Revise Sec.  175.25 to subpart B, to read as follows:


Sec.  175.25  Enforcement of State requirements for children to wear 
personal flotation devices.

    (a) This section applies to operators of recreational vessels on 
waters subject to the jurisdiction of any State that has established by 
statute a requirement for children of a certain age to wear an 
appropriate PFD approved by the Coast Guard, while aboard a 
recreational vessel.
    (b) If the applicable State statute establishes any requirement for 
children of a certain age to wear an appropriate PFD approved by the 
Coast Guard, then that requirement applies on the waters subject to the 
State's jurisdiction instead of the requirement provided in Sec.  
175.15(c) of this part.

    Dated: June 10, 2004.
David S. Belz,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Operations.
[FR Doc. 04-17411 Filed 7-29-04; 8:45 am]
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