Lifesaving Devices-Uninspected Commercial Barges and Sailing Vessels, 53621-53631 [2014-21541]
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Federal Register / Vol. 79, No. 175 / Wednesday, September 10, 2014 / Rules and Regulations
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Raisinville, Township of, Monroe County ..
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August 18, 1975, Emerg; August 2, 1982,
Reg; October 2, 2014, Susp.
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Code for reading third column: Emerg.—Emergency; Reg.—Regular; Susp.—Suspension.
Dated: August 20, 2014.
David L. Miller,
Associate Administrator, Federal Insurance
and Mitigation Administration, Department
of Homeland Security, Federal Emergency
Management Agency.
[FR Doc. 2014–21550 Filed 9–9–14; 8:45 am]
BILLING CODE 9110–12–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
46 CFR Parts 2, 24, 25, 30, 70, 90, and
188
[Docket No. USCG–2012–0919]
RIN 1625–AB83
Lifesaving Devices—Uninspected
Commercial Barges and Sailing
Vessels
Coast Guard, DHS.
Final rule.
AGENCY:
ACTION:
The Coast Guard is aligning
its regulations with the 2010 Coast
Guard Authorization Act. Before 2010,
certain uninspected commercial vessels
including barges and sailing vessels fell
outside the scope of the statute
requiring the Coast Guard to regulate
lifesaving devices on uninspected
vessels. Lifesaving devices were
required on such uninspected
commercial vessels only if they carried
passengers for hire. The 2010 Act
brought all uninspected commercial
vessels within the scope of the statutory
requirement to carry lifesaving devices
even if they carry no passengers for hire.
The effect of the 2010 Act was to bring,
for the first time, uninspected nonpassenger commercial barges and sailing
vessels within the scope of the
lifesaving devices requirement. The
Coast Guard is now requiring the use of
wearable personal flotation devices for
individuals on board those vessels, and
amending several regulatory tables to
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SUMMARY:
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reflect that requirement. This
rulemaking promotes the Coast Guard’s
marine safety mission.
DATES: This final rule is effective
October 10, 2014.
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–2012–0919 and are
available for inspection or copying at
the Docket Management Facility (M–30),
U.S. Department of Transportation,
West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays. You may also
find this docket on the Internet by going
to https://www.regulations.gov, inserting
USCG–2012–0919 in the ‘‘Keyword’’
box, and then clicking ‘‘Search.’’
FOR FURTHER INFORMATION CONTACT: For
information about this document, call or
email Mr. Martin Jackson, Office of
Design and Engineering Standards,
Lifesaving and Fire Safety Division (CG–
ENG–4), Coast Guard; telephone 202–
372–1391, email Martin.L.Jackson@
uscg.mil. For information about viewing
or submitting material to the docket, call
Ms. Cheryl Collins, Program Manager,
Docket Operations, telephone 202–366–
9826, toll free 1–800–647–5527.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Abbreviations
II. Background
III. Discussion of Comments
IV Discussion of the Rule
V. Regulatory Analyses
A. Regulatory Planning and Review
B. Small Entities
C. Assistance for Small Entities
D. Collection of Information
E. Federalism
F. Unfunded Mandates Reform Act
G. Taking of Private Property
H. Civil Justice Reform
I. Protection of Children
J. Indian Tribal Governments
K. Energy Effects
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L. Technical Standards
M. Environment
I. Abbreviations
CFR Code of Federal Regulations
E.O. Executive Order
FR Federal Register
MISLE Marine Information for Safety and
Law Enforcement
NPRM Notice of proposed rulemaking
OSHA Occupational Safety and Health
Administration
PFD Personal flotation device
Pub. L. Public Law
§ Section symbol
The Act 2010 Coast Guard Authorization
Act
U.S.C. United States Code
II. Background
Sections 2103 and 4102 of title 46,
United States Code (U.S.C.), provide the
legal basis for this rule. Section 2103
gives the Secretary of the department in
which the Coast Guard is operating
general regulatory authority to carry out
the provisions of 46 U.S.C. Subtitle II
(‘‘Vessels and Seamen’’). Section
4102(b) 1 requires the Secretary to
‘‘prescribe regulations requiring the
installation, maintenance, and use of
life preservers and other lifesaving
devices for individuals on board
uninspected vessels.’’ The Secretary of
Homeland Security’s authority under 46
U.S.C. 2103 and 4102 is delegated to the
Coast Guard.2
The uninspected vessels to which
section 4102(b) applies are not subject
to inspection under 46 U.S.C. 3301 and
are not recreational vessels.3 Until
passage of the 2010 Coast Guard
Authorization Act (‘‘the Act’’), section
4102(b) applied only to uninspected
vessels ‘‘propelled by machinery,’’ and
thus excluded certain uninspected
commercial vessels including most
1 As amended by section 619 of the 2010 Coast
Guard Authorization Act, Pub. L. 111–281, 124 Stat.
2905.
2 DHS Delegation No. 0170.1(II)(92)(a), (92)(b).
3 See 46 U.S.C. 2101(25) and (43) for the
definitions of ‘‘recreational vessel’’ and
‘‘uninspected vessel.’’
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barges and some sailing vessels unless
they carried passengers for hire.4
Current Coast Guard regulations that
implement section 4102(b) reflect the
‘‘propelled by machinery’’ requirement
and therefore specifically exempt those
excluded barges and sailing vessels.5
The purpose of the rule is to
implement 46 U.S.C. 4102(b) as
amended by the Act. The Act deleted
the requirement in section 4102(b) that
vessels be propelled by machinery. As
amended, section 4102(b) now requires
all non-recreational uninspected
vessels, regardless of vessel type or
mode of propulsion, to make an
appropriate form of lifesaving device
available for the use of individuals on
board the vessel. The types and
numbers of devices appropriate for each
type of vessel are left to the Coast
Guard’s discretion, as are the
requirements for installing, maintaining,
and using those devices.
III. Discussion of Comments and
Changes
Our 2013 notice of proposed
rulemaking (NPRM) 6 drew comments
from 11 sources: 4 from the barge
industry, 1 industry worker, 1 industry
association, 1 association representing
workers,7 and 4 individuals who did not
indicate their affiliations, if any. We
have revised the regulatory text of this
final rule in response to some of the
comments.
Public meetings. One industry
commenter said that changing the
regulations in a way that might make
sense for its operations might ‘‘be
incorrect’’ for another operator, and that
therefore we should hold public
meetings in which members of the
public could discuss how best to change
the regulations. In our view, it was not
necessary to hold public meetings
because the NPRM proposed regulatory
text that would accommodate the
circumstances of different industry
segments.
Vessels we overlooked. Two
individuals said our proposals exclude
some vessel types that should be
covered. The first commenter said that
the congressional intention in deleting
‘‘propelled by machinery’’ from 46
U.S.C. 4102(b) was to ‘‘create parity for
all uninspected vessels—both
recreational and commercial—with
regard to lifesaving equipment
requirements.’’ This commenter said
that Table 24.05–1(a) in our existing 46
4 Vessels carrying passengers for hire are
inspected vessels covered by 46 U.S.C. 3301.
5 See 46 CFR 25.25–1(c), (d).
6 78 FR 42739 (Jul. 17, 2013).
7 The association representing workers made two
submissions to the docket.
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CFR regulations misleadingly implies
that the only ‘‘non-self-propelled vessels
< 100 gross tons’’ covered by 46 CFR
chapter I, subchapter C are ‘‘barges
carrying passengers or passengers-forhire’’ that are not also subject to
inspection as 46 CFR chapter I,
subchapter H, K, or T passenger vessels.
The commenter said that other non-selfpropelled vessels under 100 gross tons
must also be subject to subchapter C,
and thus subject to lifesaving equipment
requirements: for example, dredges,
non-self-propelled workboats, and
rowed skiffs and tenders. Finally, the
commenter informed us of a Vermontbased sailing vessel that has recently
entered commercial service and should
be covered under the proposed rule.
Likewise, the second commenter
mentioned vessels dredging for oysters
in Maryland waters as examples of
commercial sailing vessels that we had
overlooked.
We acknowledge that the NPRM
stressed its applicability to barges and
sailing vessels. However, the NPRM’s
proposed regulatory language clearly
applied to any vessel that is subject to
46 CFR chapter I, subchapter C. As
explained in Table 24.05–1(a),
subchapter C applies to all uninspected
motor vessels, non-self-propelled
vessels, sailing vessels, and steam
vessels. Skiffs and other motorized
vessels are non-exempt under
subchapter C. Our population analysis
includes any non-self-propelled vessel
in our database records that was
previously exempt and is now affected
by this final rule, which includes
unmanned, non-self propelled dredges.
Oyster dredges, if in commercial use,
are commercial fishing vessels that are
already subject to the personal flotation
device (PFD) requirements of 46 CFR
28.110. We did, however, add the
Vermont-based sailing vessel to our
population analysis, although it is
already in compliance with the
proposed requirements.
Wearing PFDs on barges. Two
industry commenters, the industry
worker, the industry association, the
association representing workers, and
two individuals addressed our proposed
requirement for wearing PFDs on board
a barge. The industry worker estimated
that only a small percentage of
tankermen on oil and petroleum barges
wear PFDs, and said it was time to
require PFD use. The worker association
and one individual also endorsed our
proposed requirement. One industry
commenter endorsed wearing a PFD
‘‘where there is a risk of falling
overboard.’’ The industry commenters,
the industry association, and the second
individual provided examples of when
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wearing a PFD would not be necessary
to protect a person’s safety on board a
barge: for example, while in an office or
shop facility on the barge, while
working in a barge hopper, or when
walls or stanchions protect a worker
from falling overboard from a moored
barge. The association representing
workers acknowledged the second
individual’s comment, and seemed to
imply that a watch officer could use his
or her discretion to determine under
what conditions wearing a PFD would
be necessary. The worker association
also specified that the type of PFD we
should require is the work vest
‘‘commonly used on barges’’ and ‘‘worn
properly to be useful as a piece [of]
personal protective gear.’’
We agree that workers in enclosed
spaces on barges, or who are otherwise
protected by the barge’s configuration
from falling overboard, do not need to
wear PFDs to ensure their safety, and we
have revised 46 CFR 25.25–9(c) to
require the wearing of a PFD only while
a worker is on board a barge and at risk
of falling overboard. The proposed
regulatory language permits the use of
‘‘commonly used’’ PFDs on barges,
including work vests that are approved
by the Coast Guard, and we include this
provision in the final rule.
PFD storage. Three industry
commenters and the industry
association commented on our proposal
to allow PFDs for use on a barge to be
stored elsewhere than on the barge
itself, for example on the barge’s
towboat. Two of the industry
commenters endorsed this proposal.
Two industry commenters and the
industry association suggested changing
our proposed regulatory language, to
make the regulations easier to
understand. They suggested, in
proposed 46 CFR 25.25–5(b), striking
‘‘which must comply with paragraph
(b)(1) of this section or make
substitutions authorized by paragraph
(c) of this section.’’ They also suggested
rewriting proposed 46 CFR 25.25–9(c)
so that PFD storage would be required
only when PFD use is needed to ensure
worker safety.
We agree with these commenters. We
made the suggested change in § 25.25–
5(b), but went beyond that to remove the
introductory language altogether, lest it
inadvertently serve to exempt all barges
from the requirements of § 25.25–5. To
ensure consistency, we also revised
§ 25.25–5(b)(3), to make it clear that
barges are exempt from that paragraph’s
lifebuoy requirements. We have revised
§ 25.25–9(c) to require the wearing of a
PFD only while a worker is on board a
barge and at risk of falling overboard.
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Operator responsibility. Four industry
commenters, the industry association,
and the worker association commented
on our proposal to make the barge
operator responsible for ensuring
compliance, in particular with the
proposed requirement to wear a PFD on
board a barge. All five commenters
agreed that placing this responsibility
on the barge operator would create
ambiguity. Two of the industry
commenters and the industry
association said that ‘‘barge operator’’
could refer to ‘‘the barge owner, the
operator of an attending vessel, or even
a fleet or dock worker.’’ The worker
association said that the barge operator
might not be in a position to ensure that
the device is donned properly or worn
at all times. The worker association
suggested that the officer in charge of
the watch would be the proper person
to carry those responsibilities. The four
industry commenters pointed out that
personnel representing many different
operators might be on board a barge at
any given time, and that the only
effective way to enforce the proper wear
of PFDs on board the barge would be
make each individual’s employer
responsible for ensuring compliance.
We understand that the identity of the
‘‘barge operator’’ may change over time
depending on the barge’s operation at
any given moment and that the key is
to determine who controls access to the
barge at the moment. When the barge’s
owner controls that access, the owner is
also the operator; if it is the master of
another company’s tow that controls
access, that master is the operator; and
if the barge is being fleeted and access
is controlled by the dock master, the
dock master is the operator for purposes
of these regulations.
Throwable devices. The worker
association and one individual
commented on devices that can be
thrown to a person overboard, to assist
in the person’s rescue. The individual
said ‘‘there are many instances where
barges could be equipped with a
throwable (Type IV) device that is
readily accessible in the event that a
crewmember or other individual falls in
the water.’’ The worker association said
we should require a barge to carry a
throwable device if there are occasions
when two or more persons are on board,
and recommended a trademarked model
of lifebuoy that is equipped with a 100foot lifeline because of its superiority as
an effective rescue tool.
We recommend the use of throwable
devices when two or more persons are
on a barge, but we will not require that
use at this time. Our emphasis in this
final rule is on wearable personal
devices. Developing requirements for
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throwable devices is outside the scope
of this rulemaking.
Occupational Safety and Health
Administration (OSHA) regulations. The
worker association recommended that
Coast Guard follow OSHA’s example in
certain areas. The recommendations
included determining whether towboats
should be required to carry lifesaving
skiffs (as ‘‘many of them already do’’),
requiring a lifebuoy to be equipped with
at least 90 feet of retrievable line, and
adopting a regulation for working over
or near water that would be similar to
OSHA requirements.8
We recommend the carriage of
lifesaving skiffs and lifebuoys on vessels
where that carriage makes sense, but we
will not require it at this time. Our
emphasis in this final rule is on
wearable personal devices. Developing
requirements for skiffs and lifebuoys is
outside the scope of this rulemaking.
Economic data and analysis. The
worker association and one individual
commented on our economic data and
analysis. The association questioned our
estimate that 35,568 barges would be
subject to our proposed regulations, and
commented that although our proposals
seem to carry low cost, they also would
do nothing to improve safety on
uninspected barges. The individual was
disturbed by our data, indicating that
out of 40 casualties we examined, only
one casualty was not wearing a life
preserver/PFD; he said that before
changing any regulations, we should
determine why so many individuals
died despite wearing a life preserver/
PFD.
Based on comments regarding the
population, we re-evaluated the affected
population and determined that an
estimated 62,240 vessels are affected by
this rule. We made this determination
by removing a filter for ‘‘uninspected’’
vessels, as some barges may not be
listed as uninspected.
As for the casualty data, it is
important to keep in mind, when
consulting our data, that they are
limited to the statistics we collect when
investigating actual injuries and deaths.
The data do not reflect the many near
misses that have occurred to people
who fell overboard without a life
preserver/PFD and fortunately survived
without major injury.
Beyond scope. The worker association
made three comments that we consider
to be beyond the scope of this
rulemaking, and we have not reflected
these comments in our revisions to
regulatory text. In each of this
commenter’s two submissions to the
docket, the submission included copies
8 See
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of articles or previous comments
relating to a variety of maritime safety
considerations. These were not
presented in the context of this specific
rulemaking and did not indicate the
relevance of this material to other
specific comments made by the
association. The third comment was that
the safety needs of persons working
below deck on uninspected barges, ‘‘in
confined spaces to pump, plug holes,
inspect, etc.’’ need attention by the
Coast Guard. Persons in confined work
spaces in shipyards are subject to OSHA
regulations.9
IV. Discussion of the Rule
The Coast Guard is amending 46 CFR
subpart 25.25, which concerns life
preservers and other lifesaving
equipment on uninspected commercial
vessels.
Section 25.25–1 exempts certain types
of vessels from subpart 25.25.
Paragraphs (a) and (b) of the section
exempt non-commercial vessels and
vessels leased, rented, or chartered to
another for that person’s noncommercial use. Paragraphs (c) and (d)
exempted uninspected commercial
sailing vessels and barges that do not
carry passengers for hire. Paragraphs (c)
and (d) reflected the pre-2010 inclusion
of the ‘‘propelled by machinery’’
condition in 46 U.S.C. 4102(b). Because
section 4102(b) now mandates the Coast
Guard to require some form of lifesaving
devices on uninspected commercial
vessels even if they do not carry
passengers for hire, irrespective of
propulsion, we are removing 46 CFR
25.25–1(c) and (d).
We are amending the definitions in 46
CFR 25.25–3 by adding a definition for
‘‘approval series,’’ a term we use
elsewhere in the subpart to describe
equipment requirements.
We are amending 46 CFR 25.25–5,
revising current paragraphs (b) through
(f) to eliminate references to equipment
specifications that have become obsolete
or that have lost their Coast Guardapproved status since this section was
last amended in 2002. Although the
regulatory text omits the language of
current § 25.25–5(f)(3), requiring Type V
commercial hybrid PFDs approved
under approval series 160.077 to be
worn when a vessel is underway and
the intended wearer is not within an
enclosed space, the substance of that
provision is covered by the requirement
in § 25.25–5(c)(2)(i) for approved
commercial hybrid PFDs to be used in
accordance with the conditions marked
on the PFD and in the owner’s manual.
All Coast Guard-approved Type V
9 See
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29 CFR part 1915, subpart B.
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hybrid PFDs are labeled with, and their
user manuals refer to, the conditions
contained in current § 25.25–5(f)(3).
Otherwise, the requirements currently
found in § 25.25–5(b) through (f) are not
substantively changed, but are
incorporated into revised § 25.25–5(b)
and (c). As revised, § 25.25–5 requires
the operator of each vessel to which
subpart 25.25 applies to provide some
form of wearable PFD, or an immersion
suit, for individuals on board. Except for
barges, vessels longer than 26 feet must
also be equipped with lifebuoys.
Lifebuoys typically are mounted on
stanchions. Given the configuration of
some barges, installation of a lifebuoy
stanchion could unreasonably interfere
with operations, and because often only
one individual is on board a barge at
any given time, should that individual
fall overboard there would be no one
available to throw the lifebuoy to the
individual.
We are amending 46 CFR 25.25–9 to
allow PFDs for barge personnel to be
stowed remotely rather than on the
barge itself, and to require barge
operators to ensure that PFDs are worn
by individuals while they are on board
a barge and at risk of falling overboard.
In addition, this requirement could be
met by donning a work vest approved
under approval series 160.053, routinely
used by personnel on barges. This is
consistent with current industry
practice. Typically, barge operators stow
PFDs on the barge’s towboat, and
require crew members to don PFDs
before they go aboard a barge and to
wear them while on board. Allowing
this not only increases safety but also
does so at a lower cost relative to the
lifebuoy and barge stowage options.
We are amending tables in 46 CFR
2.01–7, 24.05–1, 30.01–5, 70.05–1,
90.05–1, and 188.05–1. These tables
describe the applicable Coast Guard
regulations for different vessel types,
and are being revised to remove
references to the 46 CFR 25.25–1(c) and
(d) exemptions that we are also
removing.
Finally, we are revising the authority
lines for each part affected by this rule,
to ensure that each authority line cites
the Secretary of DHS’s general
regulatory authority (delegated to the
Coast Guard) to implement 46 U.S.C.
Subtitle II, Vessels and Seamen.
V. Regulatory Analyses
We developed this rule after
considering numerous statutes and
executive orders (E.O.s) related to
rulemaking. Below we summarize our
analyses based on these statutes or
E.O.s.
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A. Regulatory Planning and Review
E.O.s 12866 (‘‘Regulatory Planning
and Review’’) and 13563 (‘‘Improving
Regulation and Regulatory Review’’)
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility.
This rule is not a significant
regulatory action under section 3(f) of
E.O. 12866, as supplemented by E.O.
13563, 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. Nonetheless, we developed
an analysis of the costs and benefits of
the rule to ascertain its probable impacts
on industry.
A final regulatory assessment follows:
As described in section II
(Background) of this final rule, 46 U.S.C.
4102(b), as amended by the Act, now
makes all previously exempt
uninspected commercial barges and
sailing vessels subject to Coast Guard
regulation for the installation,
maintenance, and use of life preservers
and other lifesaving devices for
individuals on board. The Act removed
language that formerly limited the
applicability of section 4102(b) to
vessels ‘‘propelled by machinery,’’
which effectively kept most commercial
barges, which are not self-propelled by
machinery, as well as commercial
sailing vessels, outside the scope of
section 4102(b). At this time, we are
aware of only one uninspected
commercial sailing vessel not carrying
passengers for hire currently in service
(the Vermont vessel brought to our
attention by a public comment) but we
determined that it has an auxiliary
motor and therefore can be selfpropelled by machinery. That vessel has
PFDs stored on board. Thus the data on
which the rest of this discussion is
based relate exclusively to uninspected
commercial barges not carrying
passengers for hire.
As amended, 46 CFR 25.25–5(b)
requires operators of affected vessels to
store and maintain at least one PFD for
each person on board a barge.10 In lieu
10 While barges may in practice be tied together,
there is no exception as to storing a set of lifesaving
devices for each barge rather than one per set of
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of storing a PFD for each individual on
board a barge, PFDs can be stored and
maintained on another vessel so long as
crewmembers wear the PFDs while on
board the barge when they are at risk of
falling overboard. For instance,
uninspected commercial barges not
carrying passengers for hire carry lowcost cargos in bulk and generally do not
carry individuals on board. However,
towing vessel personnel may be on
board the barge to perform specific tasks
such as securing the barge to other
barges or the towing vessel, or providing
lookout for the towing vessel.
While some firms that operate barges
may also own them, for the purposes of
this analysis, we treat barge owners and
operators as different entities. We
assume that the barge operators would
be responsible for the PFDs because
they are responsible for the safety of
their crews and therefore they would
store a sufficient number of PFDs for
each crewmember on board the towing
vessel. Under 46 CFR 25.25–9(c), a barge
operator may comply with § 25.25–5(b)
by storing PFDs elsewhere and ensuring
that each individual dons the
equipment before boarding the barge
and keeps it on for as long as the
individual remains on board, in lieu of
maintaining PFDs on each barge. This
would reduce costs by eliminating the
need to install storage facilities on each
barge, and would enable the typical
industry practice of PFDs being worn to
be substituted.11 We also assume that
the barge owners would then negotiate
the PFD wear conditions with the barge
operators. While most barge operators
require the wearing of PFDs on board a
barge, we received two comments that
suggested that there may be a few barges
that will store PFDs on board.
We also received one comment that
our estimated affected population may
be too low. In the NPRM, we had
estimated a population of 35,568 barges
(including currently inactive and new
barges). We revisited the Coast Guard’s
Marine Information for Safety and Law
Enforcement (MISLE) database and
estimate that there are 49,150 non-self
propelled, uninspected vessels not
carrying passengers for hire. We made
this determination by removing a filter
for ‘‘uninspected’’ vessels, as some
vessels may not be listed as
uninspected. We then included an
barges or around the perimeter of a set of barges.
Towing vessels may transport barges from various
barge owners and drop them off on a schedule, so
having lifebuoys and sets of PFDs on a perimeter
of a set of barges may not be feasible.
11 Based on information from the American
Waterways Operators (AWO), we believe that the
prevailing practice is that crewmembers wear PFDs
while on board a barge.
E:\FR\FM\10SER1.SGM
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additional 13,090 vessels to account for
currently inactive and new vessels,
which increases our overall population
to 62,240 vessels. Table 1 summarizes
53625
the affected population, costs, and
benefits of this rule.
TABLE 1—SUMMARY OF AFFECTED POPULATION, COSTS AND BENEFITS
Category
Description
Applicability ..........................
Uninspected commercial vessels.
Not propelled by machinery.
Not carrying passengers for hire.
62,240 barges. (including new and currently inactive barges)
0 sailing vessels.
$140,420 10-Year, undiscounted cost.
Improves regulatory efficiency by providing technical updates to the Code of Federal Regulations, aligning them
to the U.S. Code and thereby reducing the potential for uncertainty and confusion.
Reinforces existing company policy and current industry practice of PFD use.
Costs ....................................
Benefits (Qualitative) ............
Affected Population
49,150 uninspected, commercial barges.
Table 2 provides the list of barges by
type.
Based on the Coast Guard’s MISLE
database, we determined that there are
TABLE 2—AFFECTED POPULATION BY TYPE
Barge type
NPRM Barges
FR Barges
Covered Dry Bulk ........................................................................................................................................
Covered General Cargo ..............................................................................................................................
Derrick/Crane Barge ....................................................................................................................................
Flat Deck Barge ...........................................................................................................................................
General ........................................................................................................................................................
Open Dry Bulk .............................................................................................................................................
Open General Cargo ...................................................................................................................................
Pontoon Barge .............................................................................................................................................
Roll-on Roll-off .............................................................................................................................................
Unspecified ..................................................................................................................................................
Work Platform ..............................................................................................................................................
(blank) ..........................................................................................................................................................
85
2
2
41
126
156
15
..............................
..............................
22,050
1
..............................
191
41
0
322
48,004
430
128
6
28
0
0
..............................
Subtotal .................................................................................................................................................
Currently Inactive .........................................................................................................................................
New ..............................................................................................................................................................
22,478
4,500
8,590
49,150
4,500
8,590
Total ...............................................................................................................................................
35,568
62,240
We took the average number of
newbuilds from Informal Economic
from years 2006 to 2010 (859 newbuilds
annually).12 Based on information from
Coast Guard subject matter experts, we
also estimated an additional 450 barges
are currently inactive, but could be
added to the list of active barges in any
given year. The number of newbuilds
and currently inactive barges adds 1,309
barges to the population annually.
mstockstill on DSK4VPTVN1PROD with RULES
Cost
The majority of barge operators
require the wearing of PFDs while on
board the barge because it is a standard
industry practice to wear one.13 In 46
CFR 25.25–5, if a barge operator stores
PFDs elsewhere and ensures that each
12 ‘‘Barge Fleet Profile’’, March 2012, Informal
Economics.
13 Based on information from the American
Waterways Operators (AWO), we believe that the
prevailing practice is that crewmembers wear PFDs
while on board a barge.
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individual dons the equipment before
boarding the barge and keeps it on for
as long as the individual remains on
board, they can use the PFDs stored on
the towing vessel in lieu of maintaining
a set on each barge. Presumably, a
crewmember coming from a towing
vessel would wear the PFD that was
originally stored on the towing vessel,
which discussions with industry show
to be standard practice. Since this rule
primarily deals with unmanned barges,
we assume that the majority of persons
on a commercial barge will wear PFDs
while on board. However, based on two
public comments, there may be a small
number of barges that will have PFDs
stored on board. As stated by the
commenters, these may be for office or
shop facilities located on a barge, crane
and loader operators working on a
barge, or barge cleaners working in the
hopper of a barge.
We determined the likelihood of PFDs
stored on board a barge by the barge
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Fmt 4700
Sfmt 4700
type; covered dry bulk, covered general
cargo, and pontoon barges were
considered the most likely to stow PFDs
on board, due to clear perimeter deck
area. Other barges tend to be built with
open hoppers and configured such that,
when loaded with cargo, quick access to
PFDs on board may not be feasible.
Based on this information, we estimate
that at most 238 barges may need to
provide 5 PFDs on board and store them
to be readily accessible in a bin ($60).14
We also took the price of various PFDs
and came up with an average cost of $47
per PFD. We estimate the per-vessel cost
to be $295 for a set of PFDs and a
storage bin (5 * $47 PFDs + $60 storage
14 Costs range from $20, $40, $120, depending on
the type of storage. https://www.amazon.com/
KwikTek-T-Top-storage-holds-PFDs/dp/
B0000AY25C, https://www.landfallnavigation.com/sj110.html, https://www.stowmate.com/shop/pc/LifeJacket-PFD-Storage-c8.htmhttps://
www.stowmate.com/shop/pc/Life-Jacket-PFDStorage-c8.htm
E:\FR\FM\10SER1.SGM
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Federal Register / Vol. 79, No. 175 / Wednesday, September 10, 2014 / Rules and Regulations
bin). At the per-barge rate of $295, we
anticipate the first year cost to be
$70,210 ($295 * 238 barges.) We assume
that all vessels comply in year one. Due
to general deterioration, we estimate
that the lifespan of a PFD is 5 years;
therefore, vessels will need to
periodically replace their PFDs. Table 3
provides the 10-year breakdown in cost.
TABLE 3—UNDISCOUNTED COST TO PROVIDE PFDS
Discount rates
Year
Undiscounted
7%
Year
Year
Year
Year
Year
Year
Year
Year
Year
Year
3%
1 ..................................................................................................................................................
2 ..................................................................................................................................................
3 ..................................................................................................................................................
4 ..................................................................................................................................................
5 ..................................................................................................................................................
6 ..................................................................................................................................................
7 ..................................................................................................................................................
8 ..................................................................................................................................................
9 ..................................................................................................................................................
10 ................................................................................................................................................
$70,210
0
0
0
0
70,210
0
0
0
0
$65,617
0
0
0
0
46,784
0
0
0
0
$68,165
0
0
0
0
58,800
0
0
0
0
Total ..............................................................................................................................................
Annualized ...........................................................................................................................................
140,420
........................
112,401
16,003
126,965
14,884
Benefits
A benefit of this rule is the
improvement in regulatory efficiency by
providing technical updates to the Code
of Federal Regulations, aligning them to
the U.S. Code and thereby reducing the
potential for regulatory uncertainty and
confusion. Additionally, it reinforces
existing company policy and current
industry practice with regard to PFD
use.
In the NPRM, we reviewed MISLE
casualty cases from the years 2003 to
2010 that could have been impacted by
this proposed rule. During this time,
there were 49 reported casualties
involving falls overboard from barges,
an average of approximately four
casualties a year. We reviewed these
cases to see if the individual overboard
wore a PFD (or had ready access to one)
and whether the availability of such
devices could have reduced the risk of
death in a fall overboard. Of the
casualties that we reviewed, we found
only one instance where the individual
did not wear a PFD (despite company
policy requiring the use of a PFD). The
casualty report noted that the failure to
wear a PFD was a contributing factor to
the fatality. In this case, this proposed
regulation may have reinforced existing
company policy of PFD use. Since the
publication of the NPRM, we reviewed
additional MISLE casualty cases (2011
to 2012) for any additional cases related
to this rule and did not find any other
falls overboard.
Alternatives
We examine four alternatives for this
regulation.
Adopted Alternative—Store and
maintain enough PFDs for all persons
on board. The PFD can be worn in lieu
of storage: This alternative was chosen
because it meets the statutory
requirement at a minimal additional
cost. Furthermore, this requirement
would be more in line with existing PFD
requirements for other vessels and
provides regulatory flexibility in the
option of storage or wearing of PFDs.
Uninspected vessels (such as towing
vessels) must store and maintain a
sufficient number of PFDs for every
individual on board the vessel in
accordance with 46 CFR 25.25–5. In lieu
of storing PFDs, companies can require
individuals to wear a PFD or work vest.
Companies have the option of either
instituting a policy of wearing PFDs
while on board (which discussions with
industry and reviews of their casualty
data show to be the case on the majority
of vessels) or otherwise making PFDs
readily accessible. Compared to other
listed alternatives, this alternative
provides the greatest flexibility and
safety, at a minimal cost.
Alternative 1—No action Current
industry practice is to require the
wearing of PFDs while on board a barge.
However, some may not follow that
practice and would need to store the
PFD on board. Furthermore, the Act
directs the Secretary of DHS to carry out
specific regulatory actions; therefore if
no action is taken, the Coast Guard,
having been delegated this rulemaking
authority by the Secretary, will not
fulfill its Congressional mandate. This
will further cause a conflict between
U.S. Code and the Code of Federal
Regulations, resulting in regulatory
uncertainty and confusion.
Alternative 2—Require that all vessels
have a ring buoy, and store a sufficient
number of PFDs on board. In lieu of
storing PFDs, persons can wear PFDs.
This alternative is similar to the
proposed alternative in that it requires
the wearing or storing of PFDs (which
we estimate to be no additional cost),
but owners would also need to install a
ring buoy on board barges at an
estimated cost of $267 per vessel (barge)
every 5 years.15 Table 4 provides the
breakdown of labor and material costs to
install a ring buoy on board a barge.
TABLE 4—COST TO INSTALL A RING BUOY ON A BARGE
mstockstill on DSK4VPTVN1PROD with RULES
Per barge cost
Labor hours
(welder)
Wage rate
Ring buoy
Brackets
Stanchion
$267
4
$27
$71
$46
$42
15 Welder: 4 hours (Coast Guard subject matter
expert)*$27 per hour (https://www.bls.gov/oes/2011/
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16:14 Sep 09, 2014
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may/oes514121.htm) * load factor of 1.49. Therefore
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the welder’s loaded wage rate is $27.22 = ($18.23
wage rate * 1.49 load rate).
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Federal Register / Vol. 79, No. 175 / Wednesday, September 10, 2014 / Rules and Regulations
Table 5 provides the raw material cost
to install a ring buoy. The averages of
the cost points were used.
TABLE 5—COST SOURCES FOR RING BUOYS
Item
Source
Date
Accessed
Average cost.
https://store.poolcenter.com/ring-buoy—uscg-approved-ring-buoy-24in-diameter-w-rope-p169873.aspx.
https://www.westmarine.com/webapp/wcs/stores/servlet/Product_11151_
10001_39507_-1?cid=chanintel_google&ci_src=14110944&ci_
sku=39507.
Average cost. Cost includes 3 brackets for mounting.
https://www.boatbandit.com/ring-buoy-bracket-4344.aspx?gclid=CMukr8Dwb0CFUYV7AodbVAAaQ.
https://www.rakuten.com/prod/whitecap-ss-ring-buoy-bracket/
258723308.html?listingId=335700363&scid=pla_google_elmart&
adid=18178&gclid=CK2yqef-wb0CFQ5gMgod5hUAZQ.
2″ x 2″ of 1/4 inch thickness, 10 feet long ..................................................
https://www.discountsteel.com/items/A36_Hot_Rolled_Steel_Equal_Leg_
Angle.cfm?item_id=183&size_no=19&sku_no=74&pieceLength=cut&len
_ft=8&frmGS=true.
......................
02–Apr–14
Cost
Ring buoy (24 inch) ...........................
Low ....................................................
$71.00
64.99
High ...................................................
77.99
Brackets ............................................
Low ....................................................
46.00
6.99
High ...................................................
23.98
Stanchion ..........................................
42.00
42.00
We anticipate that the 10-year
undiscounted cost would be $31.6
million for this alternative. This
alternative was not chosen because it
would cost more and not provide
additional benefit as the ring buoy
would provide protection redundant to
the PFD, and in most cases, there would
be no one available to deploy it. We
estimate that all existing, new, and
02–Apr–14
02–Apr–14
02–Apr–14
02–Apr–14
currently inactive barges would need to
install ring buoys. Table 6 provides the
breakdown in population and
undiscounted costs by year.
TABLE 6—UNDISCOUNTED COST TO INSTALL RING BUOYS
Year
Year
Year
Year
Year
Year
Year
Year
Year
Year
Year
Population
Replacement
Per vessel
cost
Undiscounted
cost
1 ..............................................................................................................
2 ..............................................................................................................
3 ..............................................................................................................
4 ..............................................................................................................
5 ..............................................................................................................
6 ..............................................................................................................
7 ..............................................................................................................
8 ..............................................................................................................
9 ..............................................................................................................
10 ............................................................................................................
50459
1309
1309
1309
1309
1309
1309
1309
1309
1309
0
0
0
0
0
50459
1309
1309
1309
1309
$267
267
267
267
267
267
267
267
267
267
$13,472,553
349,503
349,503
349,503
349,503
13,822,056
699,006
699,006
699,006
699,006
Total ..........................................................................................................
62240
55,695
........................
31,488,645
In addition to the cost to install ring
buoys, barge owners would also need to
provide PFDs. The cost to provide PFDs
was illustrated in Table 3, which was
$70,210 in years 1 and 6. Table 7
combines the undiscounted cost from
Tables 3 and 6, and provides the 10-year
breakdown in cost for this final rule.
The cost includes the cost to provide
PFDs as well as the cost to install ring
buoys.
TABLE 7—10-YEAR COST FOR PFDS AND RING BUOYS
Discount rates
Year
Undiscounted
mstockstill on DSK4VPTVN1PROD with RULES
7%
Year
Year
Year
Year
Year
Year
Year
Year
Year
Year
1 ..........................................................................................................................................
2 ..........................................................................................................................................
3 ..........................................................................................................................................
4 ..........................................................................................................................................
5 ..........................................................................................................................................
6 ..........................................................................................................................................
7 ..........................................................................................................................................
8 ..........................................................................................................................................
9 ..........................................................................................................................................
10 ........................................................................................................................................
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Jkt 232001
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$13,542,763
349,503
349,503
349,503
349,503
13,892,266
699,006
699,006
699,006
699,006
E:\FR\FM\10SER1.SGM
10SER1
$12,656,788
305,269
285,299
266,634
249,191
9,257,003
435,306
406,828
380,213
355,339
3%
$13,148,314
329,440
319,845
310,529
301,484
11,634,554
568,356
551,802
535,730
520,126
53628
Federal Register / Vol. 79, No. 175 / Wednesday, September 10, 2014 / Rules and Regulations
TABLE 7—10-YEAR COST FOR PFDS AND RING BUOYS—Continued
Discount rates
Year
Undiscounted
7%
3%
Total ......................................................................................................................................
31,629,065
24,597,870
28,220,179
Annualized ...................................................................................................................................
........................
3,502,183
3,308,266
Alternative 3—Require that all vessels
have a ring buoy only. This change
would have the effect of requiring one
ring buoy on board each vessel (barge).
The ring buoy would need to be
installed (and replaced as needed) at an
above, the ring buoy would provide
protection redundant to the PFD, and in
most cases, there would be no one
available to deploy it. Table 8 provides
the undiscounted and discounted costs
for this alternative.
estimated cost to barge owners of $267
per vessel (barge) every 5 years. At an
estimated 62,240 active, inactive, and
new barges, we anticipate that this
alternative would cost $31.5 million
overall, undiscounted. As mentioned
TABLE 8—10-YEAR COST TO INSTALL RING BUOYS
Discount rates
Year
Undiscounted
7%
Year
Year
Year
Year
Year
Year
Year
Year
Year
Year
3%
1 ..........................................................................................................................................
2 ..........................................................................................................................................
3 ..........................................................................................................................................
4 ..........................................................................................................................................
5 ..........................................................................................................................................
6 ..........................................................................................................................................
7 ..........................................................................................................................................
8 ..........................................................................................................................................
9 ..........................................................................................................................................
10 ........................................................................................................................................
$13,472,553
349,503
349,503
349,503
349,503
13,822,056
699,006
699,006
699,006
699,006
$12,591,171
305,269
285,299
266,634
249,191
9,210,220
435,306
406,828
380,213
355,339
$13,080,149
329,440
319,845
310,529
301,484
11,575,754
568,356
551,802
535,730
520,126
Total ......................................................................................................................................
31,488,645
24,485,469
28,093,215
Annualized ...................................................................................................................................
........................
3,486,180
3,293,382
This alternative was not chosen
because it would not provide the lowest
cost with the maximum benefits.
B. Small Entities
Pursuant to the Regulatory Flexibility
Act,16 we have considered whether this
rule would have a significant economic
impact on a substantial number of small
entities. The term ‘‘small entities’’
comprises small businesses, not-forprofit organizations that are
independently owned and operated and
are not dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000.
We conducted a final regulatory
flexibility analysis based on the updated
population numbers resulting from a
comment received in the NPRM. Using
those updated population numbers, we
can determine there are approximately
2,893 owners of 49,151 barges. From the
2,893 owners, we researched 276
randomly selected small entities to
determine if they fell below or exceeded
the threshold for a small entity, as
determined by the U.S. Small Business
Association (SBA). To establish whether
an entity was below the threshold or
above the threshold, we used the North
American Industry Classification
System (NAICS) code for each industry
and the small entity qualifying
definitions for each NAICS code
% of small
entities
mstockstill on DSK4VPTVN1PROD with RULES
NAICS
Industry
238910 .................
336611 .................
236115 .................
Site Preparation Contractors ........................................
Ship Building and Repairing .........................................
New Single-family Housing Construction (Except ForSale Builders).
Water and Sewer Line and Related Structures Construction.
237110 .................
16 5
established by the SBA for businesses.
The following provides a breakdown of
the size determination for the entities:
• 2 Government or non-profit exceeding
the threshold
• 0 Government or non-profit below the
threshold
• 32 businesses exceeding the threshold
• 94 businesses below the threshold
• 148 unknown and therefore
considered small
Based on this analysis, 88 percent of
the sample is small entities.
Table 3 provides a description of the
most-prevalent NAICS for the small
entities.
SBA size
threshold
(less than
threshold
small)
SBA size
standard type
7.45
7.45
6.38
$15,000,000
1000
$36,500,000
Revenue .............
Employees ..........
Revenue .............
7
7
6
5.32
$36,500,000
Revenue .............
5
U.S.C. 601–612.
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16:14 Sep 09, 2014
Jkt 232001
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Fmt 4700
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Number of
entities
E:\FR\FM\10SER1.SGM
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Federal Register / Vol. 79, No. 175 / Wednesday, September 10, 2014 / Rules and Regulations
NAICS
441222
483211
488330
236220
237310
237990
423320
% of small
entities
Industry
.................
.................
.................
.................
.................
.................
.................
SBA size
threshold
(less than
threshold
small)
SBA size
standard type
53629
Number of
entities
4.26
4.26
4.26
3.19
3.19
3.19
3.19
$32,500,000
500
$38,500,000
$36,500,000
$36,500,000
$36,500,000
100
Revenue .............
Employees ..........
Revenue .............
Revenue .............
Revenue .............
Revenue .............
Employees ..........
4
4
4
3
3
3
3
3.19
44.68
$15,000,000
........................
Revenue .............
.............................
3
42
Total ......................................................................
541330 .................
Boat Dealers .................................................................
Inland Water Freight Transportation ............................
Navigational Services to Shipping ...............................
Commercial and Institutional Building Construction ....
Highway, Street, and Bridge Construction ...................
Other Heavy and Civil Engineering Construction ........
Brick, Stone, and Related Construction Material Merchant Wholesalers.
Engineering Services ...................................................
All others ......................................................................
100
........................
.............................
94
Company revenue for businesses
below the threshold, as established by
the SBA, ranges from $42,000 to $12.5
billion. The per company cost ranges
from $295 for one vessel to $6,195 for
21 barges. We anticipate that 99 percent
of the affected entities will have an
impact of less than 1 percent of revenue.
Only one percent will have an impact of
between 1 and 3 percent.
Number of
entities
Impact range
Percentage
0% ≤ Impact < 1% ...................................................................................................................................................
1% ≤ Impact < 3% ...................................................................................................................................................
Impact > 5% ............................................................................................................................................................
93
1
0
98.94
1.06
0.00
Total ..................................................................................................................................................................
94
........................
Therefore, the Coast Guard certifies
under 5 U.S.C. 605(b) that this rule will
not have a significant economic impact
on a substantial number of small
entities.
C. Assistance for Small Entities
As required by section 213(a) of the
Small Business Regulatory Enforcement
Fairness Act of 1996,17 we offered to
assist small entities in understanding
this rule so that they could better
evaluate its effects on them and
participate in the rulemaking. At this
time no requests for assistance by small
entities have been submitted to the
Coast Guard. The Coast Guard will not
retaliate against small entities that
question or complain about this rule or
any policy or action of the Coast Guard.
D. Collection of Information
This rule calls for no new collection
of information under the Paperwork
Reduction Act of 1995.18
mstockstill on DSK4VPTVN1PROD with RULES
E. Federalism
A rule has implications for federalism
under E.O. 13132 (‘‘Federalism’’) if it
has a substantial direct effect on State or
local governments and would either
preempt State law or impose a
substantial direct cost of compliance on
17 Pub.
L. 104–121.
at 44 U.S.C. 3501–3520.
18 Codified
VerDate Mar<15>2010
16:14 Sep 09, 2014
Jkt 232001
them. We have analyzed this rule under
E.O. 13132 and have determined that it
has the following implications for
federalism.
Before passage of the Act, the
lifesaving device requirements found in
46 U.S.C. § 4102(b) did not apply to
certain uninspected vessels not carrying
passengers for hire. By passing the Act,
Congress expressly intended existing
Coast Guard regulations to apply to
these vessels that were previously
exempted. Therefore, existing State or
local laws or regulations that regulate
the ‘‘installation, maintenance, and use
of life preservers and other lifesaving
devices for individuals on board
uninspected vessels’’ are preempted, but
only insofar as a State or local law or
regulation conflicts with the federal
regulation.
Given our analysis, the Coast Guard
recognizes the key role State and local
governments may have in making
regulatory determinations. Additionally,
Sections 4 and 6 of E.O. 13132 require
that for any rules with preemptive
effect, the Coast Guard shall provide
elected officials of affected State and
local governments and their
representative national organizations
the notice and opportunity for
appropriate participation in any
rulemaking proceedings, and to consult
with such officials early in the
rulemaking process. Therefore, we
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invited affected State and local
governments and their representative
national organizations to indicate their
desire for participation and consultation
in this rulemaking process by
submitting comments to this notice; no
such comments were received.
F. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 199519 requires Federal agencies to
assess the effects of their discretionary
regulatory actions. In particular, the Act
addresses actions that may result in the
expenditure by a State, local, or tribal
government, in the aggregate, or by the
private sector of $100,000,000 (adjusted
for inflation) or more in any one year.
Though this rule will not result in such
an expenditure, we do discuss the
effects of this rule elsewhere in this
preamble.
G. Taking of Private Property
This rule will not cause a taking of
private property or otherwise have
taking implications under E.O. 12630
(‘‘Governmental Actions and
Interference with Constitutionally
Protected Property Rights’’).
H. Civil Justice Reform
This rule meets applicable standards
in sections 3(a) and 3(b)(2) of E.O. 12988
19 Codified
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(‘‘Civil Justice Reform’’), to minimize
litigation, eliminate ambiguity, and
reduce burden.
I. Protection of Children
We have analyzed this rule under E.O.
13045 (‘‘Protection of Children from
Environmental Health Risks and Safety
Risks’’). This rule is not an
economically significant rule and would
not create an environmental risk to
health or risk to safety that might
disproportionately affect children.
J. Indian Tribal Governments
This rule does not have tribal
implications under E.O. 13175
(‘‘Consultation and Coordination with
Indian Tribal Governments’’), because it
would 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.
K. Energy Effects
We have analyzed this rule under E.O.
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 E.O. 12866 and
is not likely to have a significant
adverse effect on the supply,
distribution, or use of energy.
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L. Technical Standards
The National Technology Transfer
and Advancement Act 20 directs
agencies to use voluntary consensus
standards in their regulatory activities
unless the agency provides Congress,
through OMB, with an explanation of
why using these standards would be
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards 21 that are developed or
adopted by voluntary consensus
standards bodies. This rule does not use
technical standards. Therefore, we did
not consider the use of voluntary
consensus standards.
M. Environment
We have analyzed this rule under
DHS Management Directive 023.01 and
Commandant Instruction M16475.1D,
which guide the Coast Guard in
complying with the National
20 Codified
as a note to 15 U.S.C. 272.
example, specifications of materials,
performance, design, or operation; test methods;
sampling procedures, and related management
systems practices.
21 For
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Environmental Policy Act of 1969
(NEPA),22 and have concluded that this
action is one of a category of actions,
which do not individually or
cumulatively have a significant effect on
the human environment. This rule is
categorically excluded under section
2.B.2, figure 2–1, paragraphs (34)(d) and
(e) of the Instruction, and 6(a) of our
2002 Federal Register notice of
categorical exclusions.23 This rule
involves regulations concerning
equipping of vessels, equipment
approval and carriage requirements and
vessel operation safety standards.
7(a), column 5, rows 3 and 4, and
remove the phrase ‘‘None’’ from column
5, row 6, adding in its place the phrase
‘‘All vessels not covered by columns 2,
3, 4, and 6’’.
PART 24—GENERAL PROVISIONS
3. Revise the authority citation for part
24 to read as follows:
■
Authority: 46 U.S.C. 2103, 2113, 4302; E.O.
12234, 45 FR 58801, 3 CFR, 1980 Comp., p.
277, sec. 1–105; Department of Homeland
Security Delegation No. 0170.1(II)(92)(a),
(92)(b).
List of Subjects
§ 24.05–1
46 CFR Part 2
■
Marine safety, Reporting and
recordkeeping requirements, Vessels.
46 CFR Part 24
Marine safety.
46 CFR Part 25
Fire prevention, Marine safety,
Reporting and recordkeeping
requirements.
46 CFR Part 30
[Amended]
4. Amend § 24.05–1 to remove the
phrase ‘‘carrying passengers or
passengers–for–hire’’ from Table 24.05–
1(a), column 5, rows 3 and 4, and
remove the phrase ‘‘None’’ from column
5, row 6, adding in its place the phrase
‘‘All vessels not covered by columns 2,
3, 4, and 6.’’
PART 25—REQUIREMENTS
5. Revise the authority citation for part
25 to read as follows:
■
Cargo vessels, Foreign relations,
Hazardous materials transportation,
Penalties, Reporting and recordkeeping
requirements, Seamen.
Authority: 33 U.S.C. 1903(b); 46 U.S.C.
2103, 3306, 4102, 4302; Department of
Homeland Security Delegation No.
0170.1(II)(77), (92)(a), 92(b).
46 CFR Part 70
§ 25.25–1
Marine safety, Passenger vessels,
Reporting and recordkeeping
requirements.
■
46 CFR Part 90
Cargo vessels, Marine safety.
46 CFR Part 188
Marine safety, Oceanographic
research vessels.
For the reasons discussed in the
preamble, the Coast Guard amends 46
CFR parts 2, 24, 25, 30, 70, 90, and 188
as follows:
PART 2—VESSEL INSPECTIONS
1. Revise the authority citation for part
2 to read as follows:
■
Authority: Sec. 622, Pub. L. 111–281; 33
U.S.C. 1903; 43 U.S.C. 1333; 46 U.S.C. 2103,
2110, 3306, 3703; E.O. 12234, 45 FR 58801,
3 CFR, 1980 Comp., p. 277, sec. 1–105;
Department of Homeland Security Delegation
No. 0170.1(II)(77), (90), (92)(a), (92)(b).
§ 2.01–7
[Amended]
2. Amend § 2.01–7 to remove the
phrase ‘‘carrying passengers or
passengers–for–hire’’ from Table 2.01–
■
22 Codified
23 67
PO 00000
at 42 U.S.C. 4321–4370f.
FR 48243 (Jul. 23, 2002).
Frm 00030
Fmt 4700
Sfmt 4700
[Amended]
6. Amend § 25.25–1 as follows:
■ a. In paragraph (a) following the text
‘‘noncommercial use;’’, add the word
‘‘and’’;
■ b. In paragraph (b) following the text
‘‘noncommercial use’’, remove the
semicolon, and add, in its place, a
period; and
■ c. Remove paragraphs (c) and (d).
■ 7. Revise § 25.25–3 to read as follows:
§ 25.25–3
Definitions.
As used in this subpart:
(a) Approval series means the first six
digits of a number assigned by the Coast
Guard to approved equipment. Where
approval is based on a subpart of
subchapter Q of this chapter, the
approval series corresponds to the
number of the subpart. A listing of
current and formerly approved
equipment and materials may be found
on the Internet at: https://cgmix.uscg.mil/
equipment. Each OCMI may be
contacted for information concerning
approved equipment.
(b) Approved means approved under
subchapter Q of this chapter.
(c) Use means operate, navigate, or
employ.
■ 8. Revise § 25.25–5 to read as follows:
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§ 25.25–5 Life preservers and other
lifesaving equipment required.
(a) No person may operate a vessel to
which this subpart applies unless it
meets the requirements of this subpart.
(b) (1) Each vessel not carrying
passengers for hire and less than 40 feet
in length must have on board at least
one wearable personal flotation device
(PFD) approved under subchapter Q of
this chapter, and of a suitable size for
each person on board.
(2) Each vessel carrying passengers for
hire, and each vessel not carrying
passengers for hire and 40 feet in length
or longer, must have at least one PFD
approved under approval series
160.055, 160.155, or 160.176, and of a
suitable size for each person on board.
(3) In addition to the equipment
required by paragraphs (b)(1) and (b)(2)
of this section, each vessel 26 feet in
length or longer, except for a barge to
which this subpart applies, must have at
least one approved lifebuoy, and each
uninspected passenger vessel of at least
100 gross tons must have at least three
approved lifebuoys. Lifebuoys must be
approved under approval series 160.050
or 160.150, except that a lifebuoy
approved under former 46 CFR 160.009
prior to May 9, 1979 (see 46 CFR
chapter I, revised as of October 1, 1979),
may be used as long as it is in good and
serviceable condition.
(c)(1) Each vessel not carrying
passengers for hire may substitute an
immersion suit approved under 46 CFR
160.171 for a wearable PFD required
under paragraphs (b)(1) or (b)(2) of this
section.
(2) On each vessel, regardless of
length and regardless of whether
carrying passengers for hire, an
approved commercial hybrid PFD
approved under approval series
160.077, may be substituted for a PFD
approved under approval series
160.055, 160.155, or 160.176, if it is—
(i) Used in accordance with the
conditions marked on the PFD and in
the owner’s manual; and
(ii) Labeled for use on commercial
vessels.
■ 9. Amend § 25.25–9, as follows:
■ a. In paragraph (a), remove the text
‘‘§ 25.25–5 (b), (c) and (e)’’ and add, in
its place, the text ‘‘§ 25.25–5(b) and (c)’’;
and
■ b. In paragraph (b), remove the text
‘‘§ 25.25–5(d)’’ and add, in its place, the
text ‘‘§ 25.25–5(b)’’; and
■ c. Add a paragraph (c) to read as
follows:
§ 25.25–9
Storage.
*
*
*
*
*
(c) For a barge to which this subpart
applies, the wearable lifesaving
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equipment specified in § 25.25–5 need
not be stored on board the barge if the
barge’s operator stores it elsewhere, and
ensures that each individual dons the
equipment or a work vest approved
under 46 CFR 160.053 before boarding
the barge and keeps it on for as long as
the individual remains on board and at
risk of falling overboard.
PART 30—GENERAL PROVISIONS
53631
PART 188—GENERAL PROVISIONS
16. Revise the authority citation for
part 188 to read as follows:
■
Authority: 46 U.S.C. 2103, 2113, 3306; E.O.
12234, 45 FR 58801, 3 CFR, 1980 Comp., p.
277, sec. 1–105; Department of Homeland
Security Delegation No. 0170.1(II)(92)(a),
(92)(b).
§ 188.05–1
[Amended]
17. Amend § 188.05–1 to remove the
phrase ‘‘carrying passengers or
passengers–for–hire’’ from Table
188.05–1(a), column 5, rows 3 and 4,
and remove the word ‘‘None’’ from
column 5, row 6, adding in its place the
phrase ‘‘All vessels not covered by
columns 2, 3, 4, and 6.’’
■
10. Revise the authority citation for
part 30 to read as follows:
■
Authority: 46 U.S.C. 2103, 3306, 3703;
Department of Homeland Security Delegation
No. 0170.1(II)(92)(a), (92)(b).
§ 30.01–5
[Amended]
11. Amend § 30.01–5 to remove the
phrase ‘‘carrying passengers or
passengers–for–hire’’ from Table 30.01–
5(d), column 5, rows 3 and 4, and
remove the word ‘‘None’’ from column
5, row 6, adding in its place the phrase
‘‘All vessels not covered by columns 2,
3, 4, and 6’’.
J. G. Lantz,
Director of Commercial Regulations and
Standards, U. S. Coast Guard.
PART 70—GENERAL PROVISIONS
National Oceanic and Atmospheric
Administration
■
12. Revise the authority citation for
part 70 to read as follows:
[FR Doc. 2014–21541 Filed 9–9–14; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF COMMERCE
■
Authority: 46 U.S.C. 2103, 3306, 3703; E.O.
12234, 45 FR 58801, 3 CFR, 1980 Comp., p.
277, sec. 1–105; Department of Homeland
Security Delegation No. 0170.1(II)(92)(a),
(92)(b).
§ 70.05–1
[Amended]
13. Amend § 70.05–1 to remove the
phrase ‘‘carrying passengers or
passengers–for–hire’’ from Table 70.05–
1(a), column 5, rows 3 and 4, and
remove the word ‘‘None’’ from column
5, row 6, adding in its place the phrase
‘‘All vessels not covered by columns 2,
3, 4, and 6’’.
50 CFR Part 300
[Docket No. 130722647–4403–02]
RIN 0648–XD448
International Fisheries; Pacific Tuna
Fisheries; 2014 Commercial Fishing for
Pacific Bluefin Tuna Closed in the
Eastern Pacific Ocean
■
PART 90—GENERAL PROVISIONS
14. Revise the authority citation for
part 90 to read as follows:
■
Authority: 46 U.S.C. 2103, 3306, 3703; E.O.
12234, 45 FR 58801, 3 CFR, 1980 Comp., p.
277, sec. 1–105; Department of Homeland
Security Delegation No. 0170.1(II)(92)(a),
(92)(b).
§ 90.05–1
[Amended]
15. Amend § 90.05–1 to remove the
phrase ‘‘carrying passengers or
passengers–for–hire’’ from Table 90.05–
1(a), column 5, rows 3 and 4, and
remove the word ‘‘None’’ from column
5, row 6, adding in its place the phrase
‘‘All vessels not covered by columns 2,
3, 4, and 6.’’
■
PO 00000
Frm 00031
Fmt 4700
Sfmt 4700
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; fishery closure.
AGENCY:
NMFS is closing commercial
fishing for Pacific bluefin tuna in the
eastern Pacific Ocean (EPO) because the
catch limit is expected to be reached by
the effective date of this action. This
action is necessary per the intentions of
the final rule (May 16, 2014), that
implements the Inter-American Tropical
Tuna Commission Resolution C–13–02
on conservation and management
measures for Pacific bluefin tuna in the
EPO.
DATES: Effective at 5 p.m. PDT,
September 5, 2014 through December
31, 2014.
FOR FURTHER INFORMATION CONTACT:
Mark Helvey, NMFS West Coast Region,
562–980–4040.
SUPPLEMENTARY INFORMATION:
Commercial fishing for Pacific bluefin
tuna in the eastern Pacific Ocean is
SUMMARY:
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]]>Agencies
[Federal Register Volume 79, Number 175 (Wednesday, September 10, 2014)]
[Rules and Regulations]
[Pages 53621-53631]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-21541]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
46 CFR Parts 2, 24, 25, 30, 70, 90, and 188
[Docket No. USCG-2012-0919]
RIN 1625-AB83
Lifesaving Devices--Uninspected Commercial Barges and Sailing
Vessels
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is aligning its regulations with the 2010
Coast Guard Authorization Act. Before 2010, certain uninspected
commercial vessels including barges and sailing vessels fell outside
the scope of the statute requiring the Coast Guard to regulate
lifesaving devices on uninspected vessels. Lifesaving devices were
required on such uninspected commercial vessels only if they carried
passengers for hire. The 2010 Act brought all uninspected commercial
vessels within the scope of the statutory requirement to carry
lifesaving devices even if they carry no passengers for hire. The
effect of the 2010 Act was to bring, for the first time, uninspected
non-passenger commercial barges and sailing vessels within the scope of
the lifesaving devices requirement. The Coast Guard is now requiring
the use of wearable personal flotation devices for individuals on board
those vessels, and amending several regulatory tables to reflect that
requirement. This rulemaking promotes the Coast Guard's marine safety
mission.
DATES: This final rule is effective October 10, 2014.
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-2012-0919 and are available for inspection or
copying at the Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays. You may also find this
docket on the Internet by going to https://www.regulations.gov,
inserting USCG-2012-0919 in the ``Keyword'' box, and then clicking
``Search.''
FOR FURTHER INFORMATION CONTACT: For information about this document,
call or email Mr. Martin Jackson, Office of Design and Engineering
Standards, Lifesaving and Fire Safety Division (CG-ENG-4), Coast Guard;
telephone 202-372-1391, email Martin.L.Jackson@uscg.mil. For
information about viewing or submitting material to the docket, call
Ms. Cheryl Collins, Program Manager, Docket Operations, telephone 202-
366-9826, toll free 1-800-647-5527.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Abbreviations
II. Background
III. Discussion of Comments
IV Discussion of the Rule
V. Regulatory Analyses
A. Regulatory Planning and Review
B. Small Entities
C. Assistance for Small Entities
D. Collection of Information
E. Federalism
F. Unfunded Mandates Reform Act
G. Taking of Private Property
H. Civil Justice Reform
I. Protection of Children
J. Indian Tribal Governments
K. Energy Effects
L. Technical Standards
M. Environment
I. Abbreviations
CFR Code of Federal Regulations
E.O. Executive Order
FR Federal Register
MISLE Marine Information for Safety and Law Enforcement
NPRM Notice of proposed rulemaking
OSHA Occupational Safety and Health Administration
PFD Personal flotation device
Pub. L. Public Law
Sec. Section symbol
The Act 2010 Coast Guard Authorization Act
U.S.C. United States Code
II. Background
Sections 2103 and 4102 of title 46, United States Code (U.S.C.),
provide the legal basis for this rule. Section 2103 gives the Secretary
of the department in which the Coast Guard is operating general
regulatory authority to carry out the provisions of 46 U.S.C. Subtitle
II (``Vessels and Seamen''). Section 4102(b) \1\ requires the Secretary
to ``prescribe regulations requiring the installation, maintenance, and
use of life preservers and other lifesaving devices for individuals on
board uninspected vessels.'' The Secretary of Homeland Security's
authority under 46 U.S.C. 2103 and 4102 is delegated to the Coast
Guard.\2\
---------------------------------------------------------------------------
\1\ As amended by section 619 of the 2010 Coast Guard
Authorization Act, Pub. L. 111-281, 124 Stat. 2905.
\2\ DHS Delegation No. 0170.1(II)(92)(a), (92)(b).
---------------------------------------------------------------------------
The uninspected vessels to which section 4102(b) applies are not
subject to inspection under 46 U.S.C. 3301 and are not recreational
vessels.\3\ Until passage of the 2010 Coast Guard Authorization Act
(``the Act''), section 4102(b) applied only to uninspected vessels
``propelled by machinery,'' and thus excluded certain uninspected
commercial vessels including most
[[Page 53622]]
barges and some sailing vessels unless they carried passengers for
hire.\4\ Current Coast Guard regulations that implement section 4102(b)
reflect the ``propelled by machinery'' requirement and therefore
specifically exempt those excluded barges and sailing vessels.\5\
---------------------------------------------------------------------------
\3\ See 46 U.S.C. 2101(25) and (43) for the definitions of
``recreational vessel'' and ``uninspected vessel.''
\4\ Vessels carrying passengers for hire are inspected vessels
covered by 46 U.S.C. 3301.
\5\ See 46 CFR 25.25-1(c), (d).
---------------------------------------------------------------------------
The purpose of the rule is to implement 46 U.S.C. 4102(b) as
amended by the Act. The Act deleted the requirement in section 4102(b)
that vessels be propelled by machinery. As amended, section 4102(b) now
requires all non-recreational uninspected vessels, regardless of vessel
type or mode of propulsion, to make an appropriate form of lifesaving
device available for the use of individuals on board the vessel. The
types and numbers of devices appropriate for each type of vessel are
left to the Coast Guard's discretion, as are the requirements for
installing, maintaining, and using those devices.
III. Discussion of Comments and Changes
Our 2013 notice of proposed rulemaking (NPRM) \6\ drew comments
from 11 sources: 4 from the barge industry, 1 industry worker, 1
industry association, 1 association representing workers,\7\ and 4
individuals who did not indicate their affiliations, if any. We have
revised the regulatory text of this final rule in response to some of
the comments.
---------------------------------------------------------------------------
\6\ 78 FR 42739 (Jul. 17, 2013).
\7\ The association representing workers made two submissions to
the docket.
---------------------------------------------------------------------------
Public meetings. One industry commenter said that changing the
regulations in a way that might make sense for its operations might
``be incorrect'' for another operator, and that therefore we should
hold public meetings in which members of the public could discuss how
best to change the regulations. In our view, it was not necessary to
hold public meetings because the NPRM proposed regulatory text that
would accommodate the circumstances of different industry segments.
Vessels we overlooked. Two individuals said our proposals exclude
some vessel types that should be covered. The first commenter said that
the congressional intention in deleting ``propelled by machinery'' from
46 U.S.C. 4102(b) was to ``create parity for all uninspected vessels--
both recreational and commercial--with regard to lifesaving equipment
requirements.'' This commenter said that Table 24.05-1(a) in our
existing 46 CFR regulations misleadingly implies that the only ``non-
self-propelled vessels < 100 gross tons'' covered by 46 CFR chapter I,
subchapter C are ``barges carrying passengers or passengers-for-hire''
that are not also subject to inspection as 46 CFR chapter I, subchapter
H, K, or T passenger vessels. The commenter said that other non-self-
propelled vessels under 100 gross tons must also be subject to
subchapter C, and thus subject to lifesaving equipment requirements:
for example, dredges, non-self-propelled workboats, and rowed skiffs
and tenders. Finally, the commenter informed us of a Vermont-based
sailing vessel that has recently entered commercial service and should
be covered under the proposed rule. Likewise, the second commenter
mentioned vessels dredging for oysters in Maryland waters as examples
of commercial sailing vessels that we had overlooked.
We acknowledge that the NPRM stressed its applicability to barges
and sailing vessels. However, the NPRM's proposed regulatory language
clearly applied to any vessel that is subject to 46 CFR chapter I,
subchapter C. As explained in Table 24.05-1(a), subchapter C applies to
all uninspected motor vessels, non-self-propelled vessels, sailing
vessels, and steam vessels. Skiffs and other motorized vessels are non-
exempt under subchapter C. Our population analysis includes any non-
self-propelled vessel in our database records that was previously
exempt and is now affected by this final rule, which includes unmanned,
non-self propelled dredges. Oyster dredges, if in commercial use, are
commercial fishing vessels that are already subject to the personal
flotation device (PFD) requirements of 46 CFR 28.110. We did, however,
add the Vermont-based sailing vessel to our population analysis,
although it is already in compliance with the proposed requirements.
Wearing PFDs on barges. Two industry commenters, the industry
worker, the industry association, the association representing workers,
and two individuals addressed our proposed requirement for wearing PFDs
on board a barge. The industry worker estimated that only a small
percentage of tankermen on oil and petroleum barges wear PFDs, and said
it was time to require PFD use. The worker association and one
individual also endorsed our proposed requirement. One industry
commenter endorsed wearing a PFD ``where there is a risk of falling
overboard.'' The industry commenters, the industry association, and the
second individual provided examples of when wearing a PFD would not be
necessary to protect a person's safety on board a barge: for example,
while in an office or shop facility on the barge, while working in a
barge hopper, or when walls or stanchions protect a worker from falling
overboard from a moored barge. The association representing workers
acknowledged the second individual's comment, and seemed to imply that
a watch officer could use his or her discretion to determine under what
conditions wearing a PFD would be necessary. The worker association
also specified that the type of PFD we should require is the work vest
``commonly used on barges'' and ``worn properly to be useful as a piece
[of] personal protective gear.''
We agree that workers in enclosed spaces on barges, or who are
otherwise protected by the barge's configuration from falling
overboard, do not need to wear PFDs to ensure their safety, and we have
revised 46 CFR 25.25-9(c) to require the wearing of a PFD only while a
worker is on board a barge and at risk of falling overboard. The
proposed regulatory language permits the use of ``commonly used'' PFDs
on barges, including work vests that are approved by the Coast Guard,
and we include this provision in the final rule.
PFD storage. Three industry commenters and the industry association
commented on our proposal to allow PFDs for use on a barge to be stored
elsewhere than on the barge itself, for example on the barge's towboat.
Two of the industry commenters endorsed this proposal. Two industry
commenters and the industry association suggested changing our proposed
regulatory language, to make the regulations easier to understand. They
suggested, in proposed 46 CFR 25.25-5(b), striking ``which must comply
with paragraph (b)(1) of this section or make substitutions authorized
by paragraph (c) of this section.'' They also suggested rewriting
proposed 46 CFR 25.25-9(c) so that PFD storage would be required only
when PFD use is needed to ensure worker safety.
We agree with these commenters. We made the suggested change in
Sec. 25.25-5(b), but went beyond that to remove the introductory
language altogether, lest it inadvertently serve to exempt all barges
from the requirements of Sec. 25.25-5. To ensure consistency, we also
revised Sec. 25.25-5(b)(3), to make it clear that barges are exempt
from that paragraph's lifebuoy requirements. We have revised Sec.
25.25-9(c) to require the wearing of a PFD only while a worker is on
board a barge and at risk of falling overboard.
[[Page 53623]]
Operator responsibility. Four industry commenters, the industry
association, and the worker association commented on our proposal to
make the barge operator responsible for ensuring compliance, in
particular with the proposed requirement to wear a PFD on board a
barge. All five commenters agreed that placing this responsibility on
the barge operator would create ambiguity. Two of the industry
commenters and the industry association said that ``barge operator''
could refer to ``the barge owner, the operator of an attending vessel,
or even a fleet or dock worker.'' The worker association said that the
barge operator might not be in a position to ensure that the device is
donned properly or worn at all times. The worker association suggested
that the officer in charge of the watch would be the proper person to
carry those responsibilities. The four industry commenters pointed out
that personnel representing many different operators might be on board
a barge at any given time, and that the only effective way to enforce
the proper wear of PFDs on board the barge would be make each
individual's employer responsible for ensuring compliance.
We understand that the identity of the ``barge operator'' may
change over time depending on the barge's operation at any given moment
and that the key is to determine who controls access to the barge at
the moment. When the barge's owner controls that access, the owner is
also the operator; if it is the master of another company's tow that
controls access, that master is the operator; and if the barge is being
fleeted and access is controlled by the dock master, the dock master is
the operator for purposes of these regulations.
Throwable devices. The worker association and one individual
commented on devices that can be thrown to a person overboard, to
assist in the person's rescue. The individual said ``there are many
instances where barges could be equipped with a throwable (Type IV)
device that is readily accessible in the event that a crewmember or
other individual falls in the water.'' The worker association said we
should require a barge to carry a throwable device if there are
occasions when two or more persons are on board, and recommended a
trademarked model of lifebuoy that is equipped with a 100-foot lifeline
because of its superiority as an effective rescue tool.
We recommend the use of throwable devices when two or more persons
are on a barge, but we will not require that use at this time. Our
emphasis in this final rule is on wearable personal devices. Developing
requirements for throwable devices is outside the scope of this
rulemaking.
Occupational Safety and Health Administration (OSHA) regulations.
The worker association recommended that Coast Guard follow OSHA's
example in certain areas. The recommendations included determining
whether towboats should be required to carry lifesaving skiffs (as
``many of them already do''), requiring a lifebuoy to be equipped with
at least 90 feet of retrievable line, and adopting a regulation for
working over or near water that would be similar to OSHA
requirements.\8\
---------------------------------------------------------------------------
\8\ See 29 CFR 1926.106.
---------------------------------------------------------------------------
We recommend the carriage of lifesaving skiffs and lifebuoys on
vessels where that carriage makes sense, but we will not require it at
this time. Our emphasis in this final rule is on wearable personal
devices. Developing requirements for skiffs and lifebuoys is outside
the scope of this rulemaking.
Economic data and analysis. The worker association and one
individual commented on our economic data and analysis. The association
questioned our estimate that 35,568 barges would be subject to our
proposed regulations, and commented that although our proposals seem to
carry low cost, they also would do nothing to improve safety on
uninspected barges. The individual was disturbed by our data,
indicating that out of 40 casualties we examined, only one casualty was
not wearing a life preserver/PFD; he said that before changing any
regulations, we should determine why so many individuals died despite
wearing a life preserver/PFD.
Based on comments regarding the population, we re-evaluated the
affected population and determined that an estimated 62,240 vessels are
affected by this rule. We made this determination by removing a filter
for ``uninspected'' vessels, as some barges may not be listed as
uninspected.
As for the casualty data, it is important to keep in mind, when
consulting our data, that they are limited to the statistics we collect
when investigating actual injuries and deaths. The data do not reflect
the many near misses that have occurred to people who fell overboard
without a life preserver/PFD and fortunately survived without major
injury.
Beyond scope. The worker association made three comments that we
consider to be beyond the scope of this rulemaking, and we have not
reflected these comments in our revisions to regulatory text. In each
of this commenter's two submissions to the docket, the submission
included copies of articles or previous comments relating to a variety
of maritime safety considerations. These were not presented in the
context of this specific rulemaking and did not indicate the relevance
of this material to other specific comments made by the association.
The third comment was that the safety needs of persons working below
deck on uninspected barges, ``in confined spaces to pump, plug holes,
inspect, etc.'' need attention by the Coast Guard. Persons in confined
work spaces in shipyards are subject to OSHA regulations.\9\
---------------------------------------------------------------------------
\9\ See 29 CFR part 1915, subpart B.
---------------------------------------------------------------------------
IV. Discussion of the Rule
The Coast Guard is amending 46 CFR subpart 25.25, which concerns
life preservers and other lifesaving equipment on uninspected
commercial vessels.
Section 25.25-1 exempts certain types of vessels from subpart
25.25. Paragraphs (a) and (b) of the section exempt non-commercial
vessels and vessels leased, rented, or chartered to another for that
person's non-commercial use. Paragraphs (c) and (d) exempted
uninspected commercial sailing vessels and barges that do not carry
passengers for hire. Paragraphs (c) and (d) reflected the pre-2010
inclusion of the ``propelled by machinery'' condition in 46 U.S.C.
4102(b). Because section 4102(b) now mandates the Coast Guard to
require some form of lifesaving devices on uninspected commercial
vessels even if they do not carry passengers for hire, irrespective of
propulsion, we are removing 46 CFR 25.25-1(c) and (d).
We are amending the definitions in 46 CFR 25.25-3 by adding a
definition for ``approval series,'' a term we use elsewhere in the
subpart to describe equipment requirements.
We are amending 46 CFR 25.25-5, revising current paragraphs (b)
through (f) to eliminate references to equipment specifications that
have become obsolete or that have lost their Coast Guard-approved
status since this section was last amended in 2002. Although the
regulatory text omits the language of current Sec. 25.25-5(f)(3),
requiring Type V commercial hybrid PFDs approved under approval series
160.077 to be worn when a vessel is underway and the intended wearer is
not within an enclosed space, the substance of that provision is
covered by the requirement in Sec. 25.25-5(c)(2)(i) for approved
commercial hybrid PFDs to be used in accordance with the conditions
marked on the PFD and in the owner's manual. All Coast Guard-approved
Type V
[[Page 53624]]
hybrid PFDs are labeled with, and their user manuals refer to, the
conditions contained in current Sec. 25.25-5(f)(3). Otherwise, the
requirements currently found in Sec. 25.25-5(b) through (f) are not
substantively changed, but are incorporated into revised Sec. 25.25-
5(b) and (c). As revised, Sec. 25.25-5 requires the operator of each
vessel to which subpart 25.25 applies to provide some form of wearable
PFD, or an immersion suit, for individuals on board. Except for barges,
vessels longer than 26 feet must also be equipped with lifebuoys.
Lifebuoys typically are mounted on stanchions. Given the configuration
of some barges, installation of a lifebuoy stanchion could unreasonably
interfere with operations, and because often only one individual is on
board a barge at any given time, should that individual fall overboard
there would be no one available to throw the lifebuoy to the
individual.
We are amending 46 CFR 25.25-9 to allow PFDs for barge personnel to
be stowed remotely rather than on the barge itself, and to require
barge operators to ensure that PFDs are worn by individuals while they
are on board a barge and at risk of falling overboard. In addition,
this requirement could be met by donning a work vest approved under
approval series 160.053, routinely used by personnel on barges. This is
consistent with current industry practice. Typically, barge operators
stow PFDs on the barge's towboat, and require crew members to don PFDs
before they go aboard a barge and to wear them while on board. Allowing
this not only increases safety but also does so at a lower cost
relative to the lifebuoy and barge stowage options.
We are amending tables in 46 CFR 2.01-7, 24.05-1, 30.01-5, 70.05-1,
90.05-1, and 188.05-1. These tables describe the applicable Coast Guard
regulations for different vessel types, and are being revised to remove
references to the 46 CFR 25.25-1(c) and (d) exemptions that we are also
removing.
Finally, we are revising the authority lines for each part affected
by this rule, to ensure that each authority line cites the Secretary of
DHS's general regulatory authority (delegated to the Coast Guard) to
implement 46 U.S.C. Subtitle II, Vessels and Seamen.
V. Regulatory Analyses
We developed this rule after considering numerous statutes and
executive orders (E.O.s) related to rulemaking. Below we summarize our
analyses based on these statutes or E.O.s.
A. Regulatory Planning and Review
E.O.s 12866 (``Regulatory Planning and Review'') and 13563
(``Improving Regulation and Regulatory Review'') direct agencies to
assess the costs and benefits of available regulatory alternatives and,
if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity).
E.O. 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
This rule is not a significant regulatory action under section 3(f)
of E.O. 12866, as supplemented by E.O. 13563, 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. Nonetheless, we developed an analysis of the costs
and benefits of the rule to ascertain its probable impacts on industry.
A final regulatory assessment follows:
As described in section II (Background) of this final rule, 46
U.S.C. 4102(b), as amended by the Act, now makes all previously exempt
uninspected commercial barges and sailing vessels subject to Coast
Guard regulation for the installation, maintenance, and use of life
preservers and other lifesaving devices for individuals on board. The
Act removed language that formerly limited the applicability of section
4102(b) to vessels ``propelled by machinery,'' which effectively kept
most commercial barges, which are not self-propelled by machinery, as
well as commercial sailing vessels, outside the scope of section
4102(b). At this time, we are aware of only one uninspected commercial
sailing vessel not carrying passengers for hire currently in service
(the Vermont vessel brought to our attention by a public comment) but
we determined that it has an auxiliary motor and therefore can be self-
propelled by machinery. That vessel has PFDs stored on board. Thus the
data on which the rest of this discussion is based relate exclusively
to uninspected commercial barges not carrying passengers for hire.
As amended, 46 CFR 25.25-5(b) requires operators of affected
vessels to store and maintain at least one PFD for each person on board
a barge.\10\ In lieu of storing a PFD for each individual on board a
barge, PFDs can be stored and maintained on another vessel so long as
crewmembers wear the PFDs while on board the barge when they are at
risk of falling overboard. For instance, uninspected commercial barges
not carrying passengers for hire carry low-cost cargos in bulk and
generally do not carry individuals on board. However, towing vessel
personnel may be on board the barge to perform specific tasks such as
securing the barge to other barges or the towing vessel, or providing
lookout for the towing vessel.
---------------------------------------------------------------------------
\10\ While barges may in practice be tied together, there is no
exception as to storing a set of lifesaving devices for each barge
rather than one per set of barges or around the perimeter of a set
of barges. Towing vessels may transport barges from various barge
owners and drop them off on a schedule, so having lifebuoys and sets
of PFDs on a perimeter of a set of barges may not be feasible.
---------------------------------------------------------------------------
While some firms that operate barges may also own them, for the
purposes of this analysis, we treat barge owners and operators as
different entities. We assume that the barge operators would be
responsible for the PFDs because they are responsible for the safety of
their crews and therefore they would store a sufficient number of PFDs
for each crewmember on board the towing vessel. Under 46 CFR 25.25-
9(c), a barge operator may comply with Sec. 25.25-5(b) by storing PFDs
elsewhere and ensuring that each individual dons the equipment before
boarding the barge and keeps it on for as long as the individual
remains on board, in lieu of maintaining PFDs on each barge. This would
reduce costs by eliminating the need to install storage facilities on
each barge, and would enable the typical industry practice of PFDs
being worn to be substituted.\11\ We also assume that the barge owners
would then negotiate the PFD wear conditions with the barge operators.
While most barge operators require the wearing of PFDs on board a
barge, we received two comments that suggested that there may be a few
barges that will store PFDs on board.
---------------------------------------------------------------------------
\11\ Based on information from the American Waterways Operators
(AWO), we believe that the prevailing practice is that crewmembers
wear PFDs while on board a barge.
---------------------------------------------------------------------------
We also received one comment that our estimated affected population
may be too low. In the NPRM, we had estimated a population of 35,568
barges (including currently inactive and new barges). We revisited the
Coast Guard's Marine Information for Safety and Law Enforcement (MISLE)
database and estimate that there are 49,150 non-self propelled,
uninspected vessels not carrying passengers for hire. We made this
determination by removing a filter for ``uninspected'' vessels, as some
vessels may not be listed as uninspected. We then included an
[[Page 53625]]
additional 13,090 vessels to account for currently inactive and new
vessels, which increases our overall population to 62,240 vessels.
Table 1 summarizes the affected population, costs, and benefits of this
rule.
Table 1--Summary of Affected Population, Costs and Benefits
------------------------------------------------------------------------
Category Description
------------------------------------------------------------------------
Applicability................ Uninspected commercial vessels.
Not propelled by machinery.
Not carrying passengers for hire.
62,240 barges. (including new and
currently inactive barges)
0 sailing vessels.
Costs........................ $140,420 10-Year, undiscounted cost.
Benefits (Qualitative)....... Improves regulatory efficiency by
providing technical updates to the Code
of Federal Regulations, aligning them to
the U.S. Code and thereby reducing the
potential for uncertainty and confusion.
Reinforces existing company policy and
current industry practice of PFD use.
------------------------------------------------------------------------
Affected Population
Based on the Coast Guard's MISLE database, we determined that there
are 49,150 uninspected, commercial barges. Table 2 provides the list of
barges by type.
Table 2--Affected Population by Type
------------------------------------------------------------------------
Barge type NPRM Barges FR Barges
------------------------------------------------------------------------
Covered Dry Bulk.................. 85 191
Covered General Cargo............. 2 41
Derrick/Crane Barge............... 2 0
Flat Deck Barge................... 41 322
General........................... 126 48,004
Open Dry Bulk..................... 156 430
Open General Cargo................ 15 128
Pontoon Barge..................... ................. 6
Roll-on Roll-off.................. ................. 28
Unspecified....................... 22,050 0
Work Platform..................... 1 0
(blank)........................... ................. .................
-------------------------------------
Subtotal...................... 22,478 49,150
Currently Inactive................ 4,500 4,500
New............................... 8,590 8,590
-------------------------------------
Total..................... 35,568 62,240
------------------------------------------------------------------------
We took the average number of newbuilds from Informal Economic from
years 2006 to 2010 (859 newbuilds annually).\12\ Based on information
from Coast Guard subject matter experts, we also estimated an
additional 450 barges are currently inactive, but could be added to the
list of active barges in any given year. The number of newbuilds and
currently inactive barges adds 1,309 barges to the population annually.
---------------------------------------------------------------------------
\12\ ``Barge Fleet Profile'', March 2012, Informal Economics.
---------------------------------------------------------------------------
Cost
The majority of barge operators require the wearing of PFDs while
on board the barge because it is a standard industry practice to wear
one.\13\ In 46 CFR 25.25-5, if a barge operator stores PFDs elsewhere
and ensures that each individual dons the equipment before boarding the
barge and keeps it on for as long as the individual remains on board,
they can use the PFDs stored on the towing vessel in lieu of
maintaining a set on each barge. Presumably, a crewmember coming from a
towing vessel would wear the PFD that was originally stored on the
towing vessel, which discussions with industry show to be standard
practice. Since this rule primarily deals with unmanned barges, we
assume that the majority of persons on a commercial barge will wear
PFDs while on board. However, based on two public comments, there may
be a small number of barges that will have PFDs stored on board. As
stated by the commenters, these may be for office or shop facilities
located on a barge, crane and loader operators working on a barge, or
barge cleaners working in the hopper of a barge.
---------------------------------------------------------------------------
\13\ Based on information from the American Waterways Operators
(AWO), we believe that the prevailing practice is that crewmembers
wear PFDs while on board a barge.
---------------------------------------------------------------------------
We determined the likelihood of PFDs stored on board a barge by the
barge type; covered dry bulk, covered general cargo, and pontoon barges
were considered the most likely to stow PFDs on board, due to clear
perimeter deck area. Other barges tend to be built with open hoppers
and configured such that, when loaded with cargo, quick access to PFDs
on board may not be feasible. Based on this information, we estimate
that at most 238 barges may need to provide 5 PFDs on board and store
them to be readily accessible in a bin ($60).\14\ We also took the
price of various PFDs and came up with an average cost of $47 per PFD.
We estimate the per-vessel cost to be $295 for a set of PFDs and a
storage bin (5 * $47 PFDs + $60 storage
[[Page 53626]]
bin). At the per-barge rate of $295, we anticipate the first year cost
to be $70,210 ($295 * 238 barges.) We assume that all vessels comply in
year one. Due to general deterioration, we estimate that the lifespan
of a PFD is 5 years; therefore, vessels will need to periodically
replace their PFDs. Table 3 provides the 10-year breakdown in cost.
---------------------------------------------------------------------------
\14\ Costs range from $20, $40, $120, depending on the type of
storage. https://www.amazon.com/KwikTek-T-Top-storage-holds-PFDs/dp/B0000AY25C, https://www.landfallnavigation.com/-sj110.html, https://www.stowmate.com/shop/pc/Life-Jacket-PFD-Storage-c8.htmhttps://www.stowmate.com/shop/pc/Life-Jacket-PFD-Storage-c8.htm
Table 3--Undiscounted Cost To Provide PFDs
------------------------------------------------------------------------
Discount rates
Year Undiscounted -------------------------
7% 3%
------------------------------------------------------------------------
Year 1........................ $70,210 $65,617 $68,165
Year 2........................ 0 0 0
Year 3........................ 0 0 0
Year 4........................ 0 0 0
Year 5........................ 0 0 0
Year 6........................ 70,210 46,784 58,800
Year 7........................ 0 0 0
Year 8........................ 0 0 0
Year 9........................ 0 0 0
Year 10....................... 0 0 0
-----------------------------------------
Total..................... 140,420 112,401 126,965
Annualized.................... .............. 16,003 14,884
------------------------------------------------------------------------
Benefits
A benefit of this rule is the improvement in regulatory efficiency
by providing technical updates to the Code of Federal Regulations,
aligning them to the U.S. Code and thereby reducing the potential for
regulatory uncertainty and confusion. Additionally, it reinforces
existing company policy and current industry practice with regard to
PFD use.
In the NPRM, we reviewed MISLE casualty cases from the years 2003
to 2010 that could have been impacted by this proposed rule. During
this time, there were 49 reported casualties involving falls overboard
from barges, an average of approximately four casualties a year. We
reviewed these cases to see if the individual overboard wore a PFD (or
had ready access to one) and whether the availability of such devices
could have reduced the risk of death in a fall overboard. Of the
casualties that we reviewed, we found only one instance where the
individual did not wear a PFD (despite company policy requiring the use
of a PFD). The casualty report noted that the failure to wear a PFD was
a contributing factor to the fatality. In this case, this proposed
regulation may have reinforced existing company policy of PFD use.
Since the publication of the NPRM, we reviewed additional MISLE
casualty cases (2011 to 2012) for any additional cases related to this
rule and did not find any other falls overboard.
Alternatives
We examine four alternatives for this regulation.
Adopted Alternative--Store and maintain enough PFDs for all persons
on board. The PFD can be worn in lieu of storage: This alternative was
chosen because it meets the statutory requirement at a minimal
additional cost. Furthermore, this requirement would be more in line
with existing PFD requirements for other vessels and provides
regulatory flexibility in the option of storage or wearing of PFDs.
Uninspected vessels (such as towing vessels) must store and maintain a
sufficient number of PFDs for every individual on board the vessel in
accordance with 46 CFR 25.25-5. In lieu of storing PFDs, companies can
require individuals to wear a PFD or work vest. Companies have the
option of either instituting a policy of wearing PFDs while on board
(which discussions with industry and reviews of their casualty data
show to be the case on the majority of vessels) or otherwise making
PFDs readily accessible. Compared to other listed alternatives, this
alternative provides the greatest flexibility and safety, at a minimal
cost.
Alternative 1--No action Current industry practice is to require
the wearing of PFDs while on board a barge. However, some may not
follow that practice and would need to store the PFD on board.
Furthermore, the Act directs the Secretary of DHS to carry out specific
regulatory actions; therefore if no action is taken, the Coast Guard,
having been delegated this rulemaking authority by the Secretary, will
not fulfill its Congressional mandate. This will further cause a
conflict between U.S. Code and the Code of Federal Regulations,
resulting in regulatory uncertainty and confusion.
Alternative 2--Require that all vessels have a ring buoy, and store
a sufficient number of PFDs on board. In lieu of storing PFDs, persons
can wear PFDs. This alternative is similar to the proposed alternative
in that it requires the wearing or storing of PFDs (which we estimate
to be no additional cost), but owners would also need to install a ring
buoy on board barges at an estimated cost of $267 per vessel (barge)
every 5 years.\15\ Table 4 provides the breakdown of labor and material
costs to install a ring buoy on board a barge.
---------------------------------------------------------------------------
\15\ Welder: 4 hours (Coast Guard subject matter expert)*$27 per
hour (https://www.bls.gov/oes/2011/may/oes514121.htm) * load factor
of 1.49. Therefore the welder's loaded wage rate is $27.22 = ($18.23
wage rate * 1.49 load rate).
Table 4--Cost to Install a Ring Buoy on a Barge
----------------------------------------------------------------------------------------------------------------
Labor hours
Per barge cost (welder) Wage rate Ring buoy Brackets Stanchion
----------------------------------------------------------------------------------------------------------------
$267 4 $27 $71 $46 $42
----------------------------------------------------------------------------------------------------------------
[[Page 53627]]
Table 5 provides the raw material cost to install a ring buoy. The
averages of the cost points were used.
Table 5--Cost Sources for Ring Buoys
----------------------------------------------------------------------------------------------------------------
Date
Item Cost Source Accessed
----------------------------------------------------------------------------------------------------------------
Ring buoy (24 inch).......................... $71.00 Average cost. ............
Low.......................................... 64.99 https://store.poolcenter.com/ring- 02-Apr-14
buoy--uscg-approved-ring-buoy-24in-
diameter-w-rope-p169873.aspx.
High......................................... 77.99 https://www.westmarine.com/webapp/wcs/ 02-Apr-14
stores/servlet/
Product111511000139507-
1?cid=chanintelgoogle&cisrc=14110944
&cisku=39507.
Brackets..................................... 46.00 Average cost. Cost includes 3
brackets for mounting.
Low.......................................... 6.99 https://www.boatbandit.com/ring-buoy- 02-Apr-14
bracket-4344.aspx?gclid=CMukr8D-
wb0CFUYV7AodbVAAaQ.
High......................................... 23.98 https://www.rakuten.com/prod/whitecap- 02-Apr-14
ss-ring-buoy-bracket/
258723308.html?listingId=335700363&s
cid=plagoogleelmart&adid=18178&gclid
=CK2yqef-wb0CFQ5gMgod5hUAZQ.
Stanchion.................................... 42.00 2 x 2 of 1/4
inch thickness, 10 feet long.
42.00 https://www.discountsteel.com/items/ 02-Apr-14
A36HotRolledSteelEqualLegAngle.cfm?i
temid=183&sizeno=19&skuno=74&pieceLe
ngth=cut&lenft=8&frmGS=true.
----------------------------------------------------------------------------------------------------------------
We anticipate that the 10-year undiscounted cost would be $31.6
million for this alternative. This alternative was not chosen because
it would cost more and not provide additional benefit as the ring buoy
would provide protection redundant to the PFD, and in most cases, there
would be no one available to deploy it. We estimate that all existing,
new, and currently inactive barges would need to install ring buoys.
Table 6 provides the breakdown in population and undiscounted costs by
year.
Table 6--Undiscounted Cost To Install Ring Buoys
----------------------------------------------------------------------------------------------------------------
Per vessel Undiscounted
Year Population Replacement cost cost
----------------------------------------------------------------------------------------------------------------
Year 1.......................................... 50459 0 $267 $13,472,553
Year 2.......................................... 1309 0 267 349,503
Year 3.......................................... 1309 0 267 349,503
Year 4.......................................... 1309 0 267 349,503
Year 5.......................................... 1309 0 267 349,503
Year 6.......................................... 1309 50459 267 13,822,056
Year 7.......................................... 1309 1309 267 699,006
Year 8.......................................... 1309 1309 267 699,006
Year 9.......................................... 1309 1309 267 699,006
Year 10......................................... 1309 1309 267 699,006
---------------------------------------------------------------
Total....................................... 62240 55,695 .............. 31,488,645
----------------------------------------------------------------------------------------------------------------
In addition to the cost to install ring buoys, barge owners would
also need to provide PFDs. The cost to provide PFDs was illustrated in
Table 3, which was $70,210 in years 1 and 6. Table 7 combines the
undiscounted cost from Tables 3 and 6, and provides the 10-year
breakdown in cost for this final rule. The cost includes the cost to
provide PFDs as well as the cost to install ring buoys.
Table 7--10-Year Cost for PFDs and Ring Buoys
----------------------------------------------------------------------------------------------------------------
Discount rates
Year Undiscounted -------------------------------
7% 3%
----------------------------------------------------------------------------------------------------------------
Year 1.......................................................... $13,542,763 $12,656,788 $13,148,314
Year 2.......................................................... 349,503 305,269 329,440
Year 3.......................................................... 349,503 285,299 319,845
Year 4.......................................................... 349,503 266,634 310,529
Year 5.......................................................... 349,503 249,191 301,484
Year 6.......................................................... 13,892,266 9,257,003 11,634,554
Year 7.......................................................... 699,006 435,306 568,356
Year 8.......................................................... 699,006 406,828 551,802
Year 9.......................................................... 699,006 380,213 535,730
Year 10......................................................... 699,006 355,339 520,126
-----------------------------------------------
[[Page 53628]]
Total....................................................... 31,629,065 24,597,870 28,220,179
-----------------------------------------------
Annualized...................................................... .............. 3,502,183 3,308,266
----------------------------------------------------------------------------------------------------------------
Alternative 3--Require that all vessels have a ring buoy only. This
change would have the effect of requiring one ring buoy on board each
vessel (barge). The ring buoy would need to be installed (and replaced
as needed) at an estimated cost to barge owners of $267 per vessel
(barge) every 5 years. At an estimated 62,240 active, inactive, and new
barges, we anticipate that this alternative would cost $31.5 million
overall, undiscounted. As mentioned above, the ring buoy would provide
protection redundant to the PFD, and in most cases, there would be no
one available to deploy it. Table 8 provides the undiscounted and
discounted costs for this alternative.
Table 8--10-Year Cost To Install Ring Buoys
----------------------------------------------------------------------------------------------------------------
Discount rates
Year Undiscounted -------------------------------
7% 3%
----------------------------------------------------------------------------------------------------------------
Year 1.......................................................... $13,472,553 $12,591,171 $13,080,149
Year 2.......................................................... 349,503 305,269 329,440
Year 3.......................................................... 349,503 285,299 319,845
Year 4.......................................................... 349,503 266,634 310,529
Year 5.......................................................... 349,503 249,191 301,484
Year 6.......................................................... 13,822,056 9,210,220 11,575,754
Year 7.......................................................... 699,006 435,306 568,356
Year 8.......................................................... 699,006 406,828 551,802
Year 9.......................................................... 699,006 380,213 535,730
Year 10......................................................... 699,006 355,339 520,126
-----------------------------------------------
Total....................................................... 31,488,645 24,485,469 28,093,215
-----------------------------------------------
Annualized...................................................... .............. 3,486,180 3,293,382
----------------------------------------------------------------------------------------------------------------
This alternative was not chosen because it would not provide the
lowest cost with the maximum benefits.
B. Small Entities
Pursuant to the Regulatory Flexibility Act,\16\ we have considered
whether this rule would 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.
---------------------------------------------------------------------------
\16\ 5 U.S.C. 601-612.
---------------------------------------------------------------------------
We conducted a final regulatory flexibility analysis based on the
updated population numbers resulting from a comment received in the
NPRM. Using those updated population numbers, we can determine there
are approximately 2,893 owners of 49,151 barges. From the 2,893 owners,
we researched 276 randomly selected small entities to determine if they
fell below or exceeded the threshold for a small entity, as determined
by the U.S. Small Business Association (SBA). To establish whether an
entity was below the threshold or above the threshold, we used the
North American Industry Classification System (NAICS) code for each
industry and the small entity qualifying definitions for each NAICS
code established by the SBA for businesses. The following provides a
breakdown of the size determination for the entities:
2 Government or non-profit exceeding the threshold
0 Government or non-profit below the threshold
32 businesses exceeding the threshold
94 businesses below the threshold
148 unknown and therefore considered small
Based on this analysis, 88 percent of the sample is small entities.
Table 3 provides a description of the most-prevalent NAICS for the
small entities.
----------------------------------------------------------------------------------------------------------------
SBA size
threshold
NAICS Industry % of small (less than SBA size standard Number of
entities threshold type entities
small)
----------------------------------------------------------------------------------------------------------------
238910.................... Site Preparation 7.45 $15,000,000 Revenue........... 7
Contractors.
336611.................... Ship Building and 7.45 1000 Employees......... 7
Repairing.
236115.................... New Single-family 6.38 $36,500,000 Revenue........... 6
Housing
Construction
(Except For-Sale
Builders).
237110.................... Water and Sewer 5.32 $36,500,000 Revenue........... 5
Line and Related
Structures
Construction.
[[Page 53629]]
441222.................... Boat Dealers....... 4.26 $32,500,000 Revenue........... 4
483211.................... Inland Water 4.26 500 Employees......... 4
Freight
Transportation.
488330.................... Navigational 4.26 $38,500,000 Revenue........... 4
Services to
Shipping.
236220.................... Commercial and 3.19 $36,500,000 Revenue........... 3
Institutional
Building
Construction.
237310.................... Highway, Street, 3.19 $36,500,000 Revenue........... 3
and Bridge
Construction.
237990.................... Other Heavy and 3.19 $36,500,000 Revenue........... 3
Civil Engineering
Construction.
423320.................... Brick, Stone, and 3.19 100 Employees......... 3
Related
Construction
Material Merchant
Wholesalers.
541330.................... Engineering 3.19 $15,000,000 Revenue........... 3
Services.
All others......... 44.68 .............. .................. 42
------------- ---------------
Total........... 100 .............. .................. 94
----------------------------------------------------------------------------------------------------------------
Company revenue for businesses below the threshold, as established
by the SBA, ranges from $42,000 to $12.5 billion. The per company cost
ranges from $295 for one vessel to $6,195 for 21 barges. We anticipate
that 99 percent of the affected entities will have an impact of less
than 1 percent of revenue. Only one percent will have an impact of
between 1 and 3 percent.
------------------------------------------------------------------------
Number of
Impact range entities Percentage
------------------------------------------------------------------------
0% <= Impact < 1%....................... 93 98.94
1% <= Impact < 3%....................... 1 1.06
Impact > 5%............................. 0 0.00
-------------------------------
Total............................... 94 ..............
------------------------------------------------------------------------
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that
this rule will not have a significant economic impact on a substantial
number of small entities.
C. Assistance for Small Entities
As required by section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996,\17\ we offered to assist small
entities in understanding this rule so that they could better evaluate
its effects on them and participate in the rulemaking. At this time no
requests for assistance by small entities have been submitted to the
Coast Guard. The Coast Guard will not retaliate against small entities
that question or complain about this rule or any policy or action of
the Coast Guard.
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\17\ Pub. L. 104-121.
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D. Collection of Information
This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995.\18\
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\18\ Codified at 44 U.S.C. 3501-3520.
---------------------------------------------------------------------------
E. Federalism
A rule has implications for federalism under E.O. 13132
(``Federalism'') if it has a substantial direct effect on State or
local governments and would either preempt State law or impose a
substantial direct cost of compliance on them. We have analyzed this
rule under E.O. 13132 and have determined that it has the following
implications for federalism.
Before passage of the Act, the lifesaving device requirements found
in 46 U.S.C. Sec. 4102(b) did not apply to certain uninspected vessels
not carrying passengers for hire. By passing the Act, Congress
expressly intended existing Coast Guard regulations to apply to these
vessels that were previously exempted. Therefore, existing State or
local laws or regulations that regulate the ``installation,
maintenance, and use of life preservers and other lifesaving devices
for individuals on board uninspected vessels'' are preempted, but only
insofar as a State or local law or regulation conflicts with the
federal regulation.
Given our analysis, the Coast Guard recognizes the key role State
and local governments may have in making regulatory determinations.
Additionally, Sections 4 and 6 of E.O. 13132 require that for any rules
with preemptive effect, the Coast Guard shall provide elected officials
of affected State and local governments and their representative
national organizations the notice and opportunity for appropriate
participation in any rulemaking proceedings, and to consult with such
officials early in the rulemaking process. Therefore, we invited
affected State and local governments and their representative national
organizations to indicate their desire for participation and
consultation in this rulemaking process by submitting comments to this
notice; no such comments were received.
F. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995\19\ requires Federal
agencies to assess the effects of their discretionary regulatory
actions. In particular, the Act addresses actions that may result in
the expenditure by a State, local, or tribal government, in the
aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.
---------------------------------------------------------------------------
\19\ Codified at 2 U.S.C. 1531-1538.
---------------------------------------------------------------------------
G. Taking of Private Property
This rule will not cause a taking of private property or otherwise
have taking implications under E.O. 12630 (``Governmental Actions and
Interference with Constitutionally Protected Property Rights'').
H. Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of E.O. 12988
[[Page 53630]]
(``Civil Justice Reform''), to minimize litigation, eliminate
ambiguity, and reduce burden.
I. Protection of Children
We have analyzed this rule under E.O. 13045 (``Protection of
Children from Environmental Health Risks and Safety Risks''). This rule
is not an economically significant rule and would not create an
environmental risk to health or risk to safety that might
disproportionately affect children.
J. Indian Tribal Governments
This rule does not have tribal implications under E.O. 13175
(``Consultation and Coordination with Indian Tribal Governments''),
because it would 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.
K. Energy Effects
We have analyzed this rule under E.O. 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 E.O. 12866 and is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
L. Technical Standards
The National Technology Transfer and Advancement Act \20\ directs
agencies to use voluntary consensus standards in their regulatory
activities unless the agency provides Congress, through OMB, with an
explanation of why using these standards would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards \21\ that are developed or adopted by voluntary
consensus standards bodies. This rule does not use technical standards.
Therefore, we did not consider the use of voluntary consensus
standards.
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\20\ Codified as a note to 15 U.S.C. 272.
\21\ For example, specifications of materials, performance,
design, or operation; test methods; sampling procedures, and related
management systems practices.
---------------------------------------------------------------------------
M. Environment
We have analyzed this rule under DHS Management Directive 023.01
and Commandant Instruction M16475.1D, which guide the Coast Guard in
complying with the National Environmental Policy Act of 1969
(NEPA),\22\ and have concluded that this action is one of a category of
actions, which do not individually or cumulatively have a significant
effect on the human environment. This rule is categorically excluded
under section 2.B.2, figure 2-1, paragraphs (34)(d) and (e) of the
Instruction, and 6(a) of our 2002 Federal Register notice of
categorical exclusions.\23\ This rule involves regulations concerning
equipping of vessels, equipment approval and carriage requirements and
vessel operation safety standards.
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\22\ Codified at 42 U.S.C. 4321-4370f.
\23\ 67 FR 48243 (Jul. 23, 2002).
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List of Subjects
46 CFR Part 2
Marine safety, Reporting and recordkeeping requirements, Vessels.
46 CFR Part 24
Marine safety.
46 CFR Part 25
Fire prevention, Marine safety, Reporting and recordkeeping
requirements.
46 CFR Part 30
Cargo vessels, Foreign relations, Hazardous materials
transportation, Penalties, Reporting and recordkeeping requirements,
Seamen.
46 CFR Part 70
Marine safety, Passenger vessels, Reporting and recordkeeping
requirements.
46 CFR Part 90
Cargo vessels, Marine safety.
46 CFR Part 188
Marine safety, Oceanographic research vessels.
For the reasons discussed in the preamble, the Coast Guard amends
46 CFR parts 2, 24, 25, 30, 70, 90, and 188 as follows:
PART 2--VESSEL INSPECTIONS
0
1. Revise the authority citation for part 2 to read as follows:
Authority: Sec. 622, Pub. L. 111-281; 33 U.S.C. 1903; 43 U.S.C.
1333; 46 U.S.C. 2103, 2110, 3306, 3703; E.O. 12234, 45 FR 58801, 3
CFR, 1980 Comp., p. 277, sec. 1-105; Department of Homeland Security
Delegation No. 0170.1(II)(77), (90), (92)(a), (92)(b).
Sec. 2.01-7 [Amended]
0
2. Amend Sec. 2.01-7 to remove the phrase ``carrying passengers or
passengers-for-hire'' from Table 2.01-7(a), column 5, rows 3 and 4, and
remove the phrase ``None'' from column 5, row 6, adding in its place
the phrase ``All vessels not covered by columns 2, 3, 4, and 6''.
PART 24--GENERAL PROVISIONS
0
3. Revise the authority citation for part 24 to read as follows:
Authority: 46 U.S.C. 2103, 2113, 4302; E.O. 12234, 45 FR 58801,
3 CFR, 1980 Comp., p. 277, sec. 1-105; Department of Homeland
Security Delegation No. 0170.1(II)(92)(a), (92)(b).
Sec. 24.05-1 [Amended]
0
4. Amend Sec. 24.05-1 to remove the phrase ``carrying passengers or
passengers-for-hire'' from Table 24.05-1(a), column 5, rows 3 and 4,
and remove the phrase ``None'' from column 5, row 6, adding in its
place the phrase ``All vessels not covered by columns 2, 3, 4, and 6.''
PART 25--REQUIREMENTS
0
5. Revise the authority citation for part 25 to read as follows:
Authority: 33 U.S.C. 1903(b); 46 U.S.C. 2103, 3306, 4102, 4302;
Department of Homeland Security Delegation No. 0170.1(II)(77),
(92)(a), 92(b).
Sec. 25.25-1 [Amended]
0
6. Amend Sec. 25.25-1 as follows:
0
a. In paragraph (a) following the text ``noncommercial use;'', add the
word ``and'';
0
b. In paragraph (b) following the text ``noncommercial use'', remove
the semicolon, and add, in its place, a period; and
0
c. Remove paragraphs (c) and (d).
0
7. Revise Sec. 25.25-3 to read as follows:
Sec. 25.25-3 Definitions.
As used in this subpart:
(a) Approval series means the first six digits of a number assigned
by the Coast Guard to approved equipment. Where approval is based on a
subpart of subchapter Q of this chapter, the approval series
corresponds to the number of the subpart. A listing of current and
formerly approved equipment and materials may be found on the Internet
at: https://cgmix.uscg.mil/equipment. Each OCMI may be contacted for
information concerning approved equipment.
(b) Approved means approved under subchapter Q of this chapter.
(c) Use means operate, navigate, or employ.
0
8. Revise Sec. 25.25-5 to read as follows:
[[Page 53631]]
Sec. 25.25-5 Life preservers and other lifesaving equipment required.
(a) No person may operate a vessel to which this subpart applies
unless it meets the requirements of this subpart.
(b) (1) Each vessel not carrying passengers for hire and less than
40 feet in length must have on board at least one wearable personal
flotation device (PFD) approved under subchapter Q of this chapter, and
of a suitable size for each person on board.
(2) Each vessel carrying passengers for hire, and each vessel not
carrying passengers for hire and 40 feet in length or longer, must have
at least one PFD approved under approval series 160.055, 160.155, or
160.176, and of a suitable size for each person on board.
(3) In addition to the equipment required by paragraphs (b)(1) and
(b)(2) of this section, each vessel 26 feet in length or longer, except
for a barge to which this subpart applies, must have at least one
approved lifebuoy, and each uninspected passenger vessel of at least
100 gross tons must have at least three approved lifebuoys. Lifebuoys
must be approved under approval series 160.050 or 160.150, except that
a lifebuoy approved under former 46 CFR 160.009 prior to May 9, 1979
(see 46 CFR chapter I, revised as of October 1, 1979), may be used as
long as it is in good and serviceable condition.
(c)(1) Each vessel not carrying passengers for hire may substitute
an immersion suit approved under 46 CFR 160.171 for a wearable PFD
required under paragraphs (b)(1) or (b)(2) of this section.
(2) On each vessel, regardless of length and regardless of whether
carrying passengers for hire, an approved commercial hybrid PFD
approved under approval series 160.077, may be substituted for a PFD
approved under approval series 160.055, 160.155, or 160.176, if it is--
(i) Used in accordance with the conditions marked on the PFD and in
the owner's manual; and
(ii) Labeled for use on commercial vessels.
0
9. Amend Sec. 25.25-9, as follows:
0
a. In paragraph (a), remove the text ``Sec. 25.25-5 (b), (c) and (e)''
and add, in its place, the text ``Sec. 25.25-5(b) and (c)''; and
0
b. In paragraph (b), remove the text ``Sec. 25.25-5(d)'' and add, in
its place, the text ``Sec. 25.25-5(b)''; and
0
c. Add a paragraph (c) to read as follows:
Sec. 25.25-9 Storage.
* * * * *
(c) For a barge to which this subpart applies, the wearable
lifesaving equipment specified in Sec. 25.25-5 need not be stored on
board the barge if the barge's operator stores it elsewhere, and
ensures that each individual dons the equipment or a work vest approved
under 46 CFR 160.053 before boarding the barge and keeps it on for as
long as the individual remains on board and at risk of falling
overboard.
PART 30--GENERAL PROVISIONS
0
10. Revise the authority citation for part 30 to read as follows:
Authority: 46 U.S.C. 2103, 3306, 3703; Department of Homeland
Security Delegation No. 0170.1(II)(92)(a), (92)(b).
Sec. 30.01-5 [Amended]
0
11. Amend Sec. 30.01-5 to remove the phrase ``carrying passengers or
passengers-for-hire'' from Table 30.01-5(d), column 5, rows 3 and 4,
and remove the word ``None'' from column 5, row 6, adding in its place
the phrase ``All vessels not covered by columns 2, 3, 4, and 6''.
PART 70--GENERAL PROVISIONS
0
12. Revise the authority citation for part 70 to read as follows:
Authority: 46 U.S.C. 2103, 3306, 3703; E.O. 12234, 45 FR 58801,
3 CFR, 1980 Comp., p. 277, sec. 1-105; Department of Homeland
Security Delegation No. 0170.1(II)(92)(a), (92)(b).
Sec. 70.05-1 [Amended]
0
13. Amend Sec. 70.05-1 to remove the phrase ``carrying passengers or
passengers-for-hire'' from Table 70.05-1(a), column 5, rows 3 and 4,
and remove the word ``None'' from column 5, row 6, adding in its place
the phrase ``All vessels not covered by columns 2, 3, 4, and 6''.
PART 90--GENERAL PROVISIONS
0
14. Revise the authority citation for part 90 to read as follows:
Authority: 46 U.S.C. 2103, 3306, 3703; E.O. 12234, 45 FR 58801,
3 CFR, 1980 Comp., p. 277, sec. 1-105; Department of Homeland
Security Delegation No. 0170.1(II)(92)(a), (92)(b).
Sec. 90.05-1 [Amended]
0
15. Amend Sec. 90.05-1 to remove the phrase ``carrying passengers or
passengers-for-hire'' from Table 90.05-1(a), column 5, rows 3 and 4,
and remove the word ``None'' from column 5, row 6, adding in its place
the phrase ``All vessels not covered by columns 2, 3, 4, and 6.''
PART 188--GENERAL PROVISIONS
0
16. Revise the authority citation for part 188 to read as follows:
Authority: 46 U.S.C. 2103, 2113, 3306; E.O. 12234, 45 FR 58801,
3 CFR, 1980 Comp., p. 277, sec. 1-105; Department of Homeland
Security Delegation No. 0170.1(II)(92)(a), (92)(b).
Sec. 188.05-1 [Amended]
0
17. Amend Sec. 188.05-1 to remove the phrase ``carrying passengers or
passengers-for-hire'' from Table 188.05-1(a), column 5, rows 3 and 4,
and remove the word ``None'' from column 5, row 6, adding in its place
the phrase ``All vessels not covered by columns 2, 3, 4, and 6.''
J. G. Lantz,
Director of Commercial Regulations and Standards, U. S. Coast Guard.
[FR Doc. 2014-21541 Filed 9-9-14; 8:45 am]
BILLING CODE 9110-04-P
