Lifesaving Devices-Uninspected Commercial Barges and Sailing Vessels, 53621-53631 [2014-21541]

Download as PDF Federal Register / Vol. 79, No. 175 / Wednesday, September 10, 2014 / Rules and Regulations 53621 Date certain Federal assistance no longer available in SFHAs Community No. Effective date authorization/cancellation of sale of flood insurance in community Current effective map date Raisinville, Township of, Monroe County .. 260155 ......do ............... Do. South Rockwood, Village of, Monroe County. Summerfield, Township of, Monroe County. Whiteford, Township of, Monroe County ... 260320 August 18, 1975, Emerg; August 2, 1982, Reg; October 2, 2014, Susp. September 5, 1975, Emerg; May 2, 1983, Reg; October 2, 2014, Susp. June 23, 1975, Emerg; September 18, 1985, Reg; October 2, 2014, Susp. June 30, 1975, Emerg; April 1, 1981, Reg; October 2, 2014, Susp. ......do ............... Do. ......do ............... Do. ......do ............... Do. State and location 260156 260157 *-do- =Ditto. 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 mstockstill on DSK4VPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 17:28 Sep 09, 2014 Jkt 232001 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 http://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 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 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.’’ E:\FR\FM\10SER1.SGM 10SER1 53622 Federal Register / Vol. 79, No. 175 / Wednesday, September 10, 2014 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES 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. VerDate Mar<15>2010 16:14 Sep 09, 2014 Jkt 232001 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 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 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. E:\FR\FM\10SER1.SGM 10SER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 79, No. 175 / Wednesday, September 10, 2014 / Rules and Regulations 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 VerDate Mar<15>2010 16:14 Sep 09, 2014 Jkt 232001 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 PO 00000 29 CFR 1926.106. Frm 00023 Fmt 4700 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 Sfmt 4700 53623 E:\FR\FM\10SER1.SGM 29 CFR part 1915, subpart B. 10SER1 53624 Federal Register / Vol. 79, No. 175 / Wednesday, September 10, 2014 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES 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. VerDate Mar<15>2010 16:14 Sep 09, 2014 Jkt 232001 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 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 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 10SER1 Federal Register / Vol. 79, No. 175 / Wednesday, September 10, 2014 / Rules and Regulations 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. VerDate Mar<15>2010 16:14 Sep 09, 2014 Jkt 232001 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 PO 00000 Frm 00025 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. http://www.amazon.com/ KwikTek-T-Top-storage-holds-PFDs/dp/ B0000AY25C, http://www.landfallnavigation.com/sj110.html, http://www.stowmate.com/shop/pc/LifeJacket-PFD-Storage-c8.htmhttp:// www.stowmate.com/shop/pc/Life-Jacket-PFDStorage-c8.htm E:\FR\FM\10SER1.SGM 10SER1 53626 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 (http://www.bls.gov/oes/2011/ VerDate Mar<15>2010 16:14 Sep 09, 2014 Jkt 232001 may/oes514121.htm) * load factor of 1.49. Therefore PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 the welder’s loaded wage rate is $27.22 = ($18.23 wage rate * 1.49 load rate). E:\FR\FM\10SER1.SGM 10SER1 53627 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. http://store.poolcenter.com/ring-buoy—uscg-approved-ring-buoy-24in-diameter-w-rope-p169873.aspx. http://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. http://www.boatbandit.com/ring-buoy-bracket-4344.aspx?gclid=CMukr8Dwb0CFUYV7AodbVAAaQ. http://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 .................................................. http://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 ........................................................................................................................................ VerDate Mar<15>2010 16:14 Sep 09, 2014 Jkt 232001 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 $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. VerDate Mar<15>2010 16:14 Sep 09, 2014 Jkt 232001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 Number of entities E:\FR\FM\10SER1.SGM 10SER1 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 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 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 E:\FR\FM\10SER1.SGM at 2 U.S.C. 1531–1538. 10SER1 53630 Federal Register / Vol. 79, No. 175 / Wednesday, September 10, 2014 / Rules and Regulations (‘‘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. mstockstill on DSK4VPTVN1PROD with RULES 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 VerDate Mar<15>2010 16:14 Sep 09, 2014 Jkt 232001 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: http://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: E:\FR\FM\10SER1.SGM 10SER1 Federal Register / Vol. 79, No. 175 / Wednesday, September 10, 2014 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES § 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 VerDate Mar<15>2010 16:14 Sep 09, 2014 Jkt 232001 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: E:\FR\FM\10SER1.SGM 10SER1

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]


=======================================================================
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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.

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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 http://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\
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    \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\
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    \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. http://www.amazon.com/KwikTek-T-Top-storage-holds-PFDs/dp/B0000AY25C, http://www.landfallnavigation.com/-sj110.html, http://www.stowmate.com/shop/pc/Life-Jacket-PFD-Storage-c8.htmhttp://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 (http://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  http://store.poolcenter.com/ring-         02-Apr-14
                                                              buoy--uscg-approved-ring-buoy-24in-
                                                              diameter-w-rope-p169873.aspx.
High.........................................         77.99  http://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  http://www.boatbandit.com/ring-buoy-      02-Apr-14
                                                              bracket-4344.aspx?gclid=CMukr8D-
                                                              wb0CFUYV7AodbVAAaQ.
High.........................................         23.98  http://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  http://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.
---------------------------------------------------------------------------

    \17\ Pub. L. 104-121.
---------------------------------------------------------------------------

D. Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995.\18\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \22\ Codified at 42 U.S.C. 4321-4370f.
    \23\ 67 FR 48243 (Jul. 23, 2002).
---------------------------------------------------------------------------

 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

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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: http://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.

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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.
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9. Amend Sec.  25.25-9, as follows:
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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
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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
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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

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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]

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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

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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]

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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]

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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

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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]

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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