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

[Federal Register: February 27, 2002 (Volume 67, Number 39)]
[Rules and Regulations]
[Page 8881-8885]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27fe02-7]

=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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
----------------------------------------------------------------------------------------------------------------
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
cperry@comdt.uscg.mil.
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

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

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

Local Navigation