[Federal Register Volume 78, Number 137 (Wednesday, July 17, 2013)]
[Proposed Rules]
[Pages 42739-42746]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16955]


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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: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes aligning its regulations with the 
2010 Coast Guard Authorization Act. Before 2010, uninspected commercial 
barges and uninspected commercial sailing vessels fell outside the 
scope of a statute requiring the regulation of lifesaving devices on 
uninspected vessels. Lifesaving devices were required on uninspected 
commercial barges and sailing vessels only if they carried passengers 
for hire. The 2010 Act brought uninspected commercial barges and 
sailing vessels within the scope of the statutory requirement to carry 
lifesaving devices even if they carry no passengers. The Coast Guard 
proposes requiring use of wearable personal flotation devices for 
individuals on board uninspected commercial barges and sailing vessels, 
and amending several regulatory tables to reflect that requirement. 
This rulemaking promotes the Coast Guard's marine safety mission.

DATES: Comments and related material must either be submitted to our 
online docket via http://www.regulations.gov on or before October 15, 
2013 or reach the Docket Management Facility by that date.

ADDRESSES: You may submit comments identified by docket number USCG-
2012-0919 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, 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. 
If you have questions on viewing or submitting material to the docket, 
call Ms. Barbara Hairston, Program Manager, Docket Operations, 
telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
    D. Public Meeting
II. Abbreviations
III. Background
IV. Discussion of Proposed 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

[[Page 42740]]

    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. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2012-0919), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online or by fax, mail, or hand delivery, but please use only one of 
these means. We recommend that you include your name and a mailing 
address, an email address, or a phone number in the body of your 
document so that we can contact you if we have questions regarding your 
submission.
    To submit your comment online, go to http://www.regulations.gov and 
insert ``USCG-2012-0919'' in the ``Search'' box. Click on ``Submit a 
Comment'' in the ``Actions'' column. If you submit your comments by 
mail or hand delivery, submit them in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying and electronic filing. If you 
submit comments by mail and would like to know that they reached the 
Facility, please enclose a stamped, self-addressed postcard or 
envelope.
    We will consider all comments and material received during the 
comment period and may change this proposed rule based on your 
comments.

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov and 
insert ``USCG-2012-0919'' in the ``Search'' box. Click ``Search.'' 
Click the ``Open Docket Folder'' in the ``Actions'' column. If you do 
not have access to the internet, you may view the docket online by 
visiting the Docket Management Facility in Room W12-140 on the ground 
floor of the Department of Transportation West Building, 1200 New 
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays. We have an agreement 
with the Department of Transportation to use the Docket Management 
Facility.

C. Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

D. Public meeting

    We do not now plan to hold a public meeting. You may submit a 
request for one to the docket using one of the methods specified under 
ADDRESSES. In your request, explain why you believe a public meeting 
would be beneficial. If we determine that one would aid this 
rulemaking, we will hold one at a time and place announced by a later 
notice in the Federal Register.

II. Abbreviations

AWO American Waterways Operators
CDC Centers for Disease Control and Prevention
CFR Code of Federal Regulations
E.O. Executive Order
FR Federal Register
NAICS North American Industry Classification System
NIOSH National Institute for Occupational Safety and Health
Non-PFH Not carrying persons for hire
NPRM Notice of proposed rulemaking
OSHA Occupational Safety and Health Administration
PFD Personal flotation device
Pub. L. Public Law
RCP American Waterways Operators' Responsible Carriers Program
Sec.  Section symbol
SBA U.S. Small Business Association
The Act 2010 Coast Guard Authorization Act
U.S.C. United States Code

III. Background

    Sections 2103 and 4102 of title 46, United States Code (U.S.C.), 
provide the legal basis for this proposed 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), as amended by 
section 619 of the 2010 Coast Guard Authorization Act (the Act), Public 
Law 111-281, 124 Stat. 2905, 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. See DHS 
Delegation No. 0170.1(92)(a), (92)(b).
    The uninspected vessels to which section 4102(b) applies are 
defined in 46 U.S.C. 2101(43) as vessels not subject to inspection 
under 46 U.S.C. 3301 and that are not recreational vessels as defined 
in 46 U.S.C. 2101(25). Until passage of the Act in 2010, section 
4102(b) applied only to uninspected vessels ``propelled by machinery,'' 
and thus excluded most barges and sailing vessels unless they carried 
passengers for hire. (Vessels carrying passengers for hire are 
inspected vessels covered by 46 U.S.C. 3301.) 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. See 46 CFR 25.25-1(c) and (d).
    The purpose of the proposed 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 some form of 
lifesaving devices 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.
    We are unaware of any commercial sailing vessel currently in 
service, except for those that carry passengers for hire and that, 
therefore, are inspected vessels subject to Coast Guard regulations in 
46 CFR subchapters H, K, or T, and already required to carry lifesaving 
devices. However, should such an uninspected commercial sailing vessel 
ever enter service, it would be covered by this proposed rule. Many 
commercial barges are also subject to inspection and therefore are 
already required to carry lifesaving devices.\1\
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    \1\ Barges subject to inspection include barges carrying 
combustible or flammable liquid cargo in bulk (inspected in 
accordance with 46 CFR subchapter D); barges carrying more than a 
few passengers (the number varies by barge type but is generally at 
least 7; 46 CFR subchapters H, K, or T); seagoing and Great Lakes 
barges (46 CFR subchapter I); and tank barges carrying specified 
bulk or dangerous cargoes (46 CFR subchapter O).
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IV. Discussion of Proposed Rule

    The Coast Guard proposes amending 46 CFR subpart 25.25, which 
concerns

[[Page 42741]]

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'' clause 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 
sailing vessels and barges that do not carry passengers for hire, we 
propose removing 46 CFR 25.25-1(c) and (d).
    We propose amending the definitions in 46 CFR 25.25-3 by adding a 
definition for ``approval series,'' a term we propose using elsewhere 
in the subpart to describe equipment requirements.
    We propose amending 46 CFR 25.25-5. We propose 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 proposed regulatory text omits the language of current 
Sec.  25.25-5(f)(3), requiring Type V commercial hybrid PFDs to be worn 
when a vessel is underway, the substance of that provision would be 
covered by the proposed 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 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) would not be substantively changed, but would be 
incorporated into revised Sec.  25.25-5(b) and (c).
    We propose revising the introductory paragraph in Sec.  25.25-5(b) 
to provide for commercial barges of any length. Barge operators would 
have to provide some form of wearable PFD (or an immersion suit) for 
individuals on board. Although most barges are longer than 26 feet, 
unlike other uninspected vessels we would not require barges to 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 think the use of a wearable PFD not 
only involves less burden but also provides greater safety.
    We would amend 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. This is in line 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 option.
    Finally, we would amend 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. They currently 
refer to the 46 CFR 25.25-1(c) and (d) exemptions that we propose 
removing. We would reflect the removal of those exemptions in the 
tables.

V. Regulatory Analyses

    We developed this proposed 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

    Executive Orders 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). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility.
    This proposed rule is not a significant regulatory action under 
section 3(f) of E.O. 12866, Regulatory Planning and Review, as 
supplemented by E.O. 13563, Improving Regulation and Regulatory Review, 
and does not require an assessment of potential costs and benefits 
under section 6(a)(3) of that Order. The Office of Management and 
Budget (OMB) has not reviewed it under that Order. Nonetheless, we 
developed an analysis of the costs and benefits of the proposed rule to 
ascertain its probable impacts on industry. We consider all estimates 
and analysis in this Regulatory Analysis to be preliminary and subject 
to change in consideration of public comments.
    A preliminary regulatory assessment follows:
    As described in section III (Background) of this NPRM, as amended 
by section 619 of the Act, 46 U.S.C. 4102(b) now makes all 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 2010 amendment 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 unaware of any uninspected commercial sailing vessel 
not carrying passengers for hire currently in service, and thus the 
data on which the rest of this discussion are based relate exclusively 
to uninspected commercial barges not carrying passengers for hire.
    Proposed 46 CFR 25.25-5(b) requires owners of affected vessels to 
store and maintain at least one PFD for each person on board a 
barge.\2\ In lieu of storing a PFD for each individual onboard a barge, 
PFDs can be stored and maintained on another vessel so long as 
crewmembers wear the PFDs while onboard the barge. 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.
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    \2\ 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.
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    While some firms that operate barges may also own them, for the 
purposes of this analysis, we treat barge owners and operators as 
different companies. 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

[[Page 42742]]

each crewmember on board the towing vessel. Under proposed 46 CFR 
25.25-9(c), a barge operator may comply with proposed 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.\3\ We also assume that 
the barge owners would then negotiate the PFD wear conditions with the 
barge operators.
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    \3\ Based on information from the American Waterways Operators 
(AWO), we believe that crewmembers wear PFDs while onboard a barge.
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    Table 1 summarizes the affected population, costs, and benefits of 
this proposed rule.

       Table 1--Summary of Affected Population, Costs and Benefits
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             Category                            Description
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Applicability.....................  Uninspected commercial vessels.
                                    Not propelled by machinery.
                                    Not carrying passengers for hire.
                                    35,568 barges (including new and
                                     currently inactive barges).
                                    0 sailing vessels.
Costs.............................  No additional cost to purchase or
                                     install PFDs since already required
                                     on towing vessels that would
                                     transport affected barges.
Benefits (Qualitative)............  Improves regulatory efficiency by
                                     providing technical updates to the
                                     Code of Federal Regulations.
                                    Reinforces existing company policy
                                     and current industry practice of
                                     PFD use.
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Cost
    No cost was attributed to the purchase, installation, or 
maintenance of PFDs due to current regulatory requirements for the 
carriage of PFDs on towing vessels \4\ and standard industry practice 
of wearing a PFD while on board commercial barges. Uninspected 
commercial barges not carrying passengers for hire are typically 
unmanned and anyone boarding such vessel would be coming from either a 
dock, shore facility, or another vessel. Under OSHA regulations in 29 
CFR 1926 Subpart E, personnel boarding from a dock or shore are already 
required to wear a PFD and we find no evidence of non-compliance. Under 
46 CFR 25.25-5, uninspected vessels (including towing vessels) are 
required to maintain at least one PFD per person on board the vessel. 
In proposed 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. Therefore, we estimate that there is no additional cost to 
purchase or install new PFDs in response to the proposed rule. We note 
that the cost for a type 1 PFD may range from $55 to $79 per PFD 
depending on the type that a company uses and the expected lifespan of 
a PFD is 5 years.\5\
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    \4\ 46 CFR 25.25-5
    \5\ http://www.westmarine.com/webapp/wcs/stores/servlet/SiteSearch?storeId=11151&langId=-1&catalogId=10001&pageSize=10&beginIndex=0&sType=SimpleSearch&searchTermScope=3&Ns=Most+Popular%7C0&keyword=work+vest&searchBtn.
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    As stated in the introductory paragraphs of this section, we 
believe that companies already require the wearing of PFDs or work 
vests based on current OSHA regulatory requirements and industry 
practice.\6\ Furthermore, the American Waterways Operators association 
has encouraged training with development of ``Fall Overboard 
Prevention'' and ``Slip, Trip and Fall Prevention'' lesson plans since 
2002, to raise awareness on preventing falls overboard and encouraging 
PFD use.\7\ The American Waterways Operators' Responsible Carriers 
Program (RCP) requires that participants ensure that a sufficient 
number of PFDs are available and in working order.\8\ OSHA also 
encourages wearing of PFDs to improve deck safety on barges.\9\
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    \6\ See for example http://www.parkertowing.com/downloads/Person.PDF; http://www.southerntowing.net/December2005.pdf.
    \7\ http://www.americanwaterways.com/commitment_safety/lessons/Fall_Overboard/slpsplan.doc; http://www.americanwaterways.com/commitment_safety/lessons/ppe/PPE_PFDs.DOC;
    http://www.americanwaterways.com/commitment_safety/QAT/falloverboardqatreportapril2012.pdf.
    \8\ http://www.americanwaterways.com/commitment_safety/RCP.pdf.
    \9\ http://www.osha.gov/Publications/3358deck-barge-safety.pdf.
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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 
uncertainty and confusion.
    We reviewed casualty cases from the years 2000 to 2010 that may 
have been impacted by this proposed rule. During this time, there were 
49 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).\10\ The casualty report noted that 
the failure to wear a PFD was a contributing factor to the fatality. In 
this case, the proposed regulation may have reinforced existing company 
policy of PFD use.
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    \10\ Marine Information for Safety and Law Enforcement Activity 
Number 90148, year 2011.
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Alternatives
    We examine four alternatives for this regulation.
    Proposed 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 no 
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.

[[Page 42743]]

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. Therefore, we estimate that 
there is no cost to obtain or install PFDs. Compared to other listed 
alternatives, this proposed alternative provides the greatest 
flexibility and safety, at no cost.
    Alternative 1--Require that all vessels have a lifebuoy, 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 
lifebuoy on board barges at an estimated cost of $262 per vessel 
(barge) every 5 years.\11\ Annual costs may range from $342,958 to $3.6 
million depending on the annual affected population and lifebuoy 
replacement.\12\ At a total estimated 35,568 barges (including new 
constructions and currently inactive barges) we anticipate that the 10-
year undiscounted cost would be $16.9 million for this alternative. 
This alternative was not chosen because this would cost more and not 
provide additional benefit as the lifebuoy would provide protection 
redundant to the PFD, and in most cases, there would be no one 
available to deploy it. We did not find any associated benefits that 
would outweigh the costs for this alternative. Table 2 provides the 
breakdown in population and undiscounted costs by year.
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    \11\ Welder: 4 hours (Coast Guard subject matter expert)*$27 per 
hour (http://www.bls.gov/oes/current/oes514121.htm) * load factor of 
1.482. Therefore, $18.67 * 1.482 = $27.70. Lifebuoy: $72. http://www.amazon.com/RING-BUOY-WHITE-COAST-APPROVED/dp/B001DSKEAO, http://www.westmarine.com/webapp/wcs/stores/servlet/Product_11151_10001_39507_-1?cid=chanintel_google&ci_src=14110944&ci_sku=39507.
    Brackets $40.00. http://www.starmarinedepot.com/Seachoice+Ring+Buoy+Bracket.html, http://www.starmarinedepot.com/Seachoice+Ring+Buoy+Bracket.html
    Stanchion $42.00. 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. Therefore, $262 = (4 * 
$27/hour welder wage, loaded) + $72 per lifebuoy + $40 brackets (for 
3) + $42 per stanchion.
    \12\ Similar to PFDs, we assume the expected lifespan, and 
therefore replacement time, of a lifebuoy to be 5 years.

                                Table 2--Undiscounted Cost To Install Ring Buoys
----------------------------------------------------------------------------------------------------------------
                                                                             Per vessel cost   Undiscounted cost
                Year                      Population        Replacement            ($)                 ($)
----------------------------------------------------------------------------------------------------------------
Year 1..............................              12548                  0                262          3,287,576
Year 2..............................              12548                  0                262          3,287,576
Year 3..............................               1309                  0                262            342,958
Year 4..............................               1309                  0                262            342,958
Year 5..............................               1309                  0                262            342,958
Year 6..............................               1309              12548                262          3,630,534
Year 7..............................               1309              12548                262          3,630,534
Year 8..............................               1309               1309                262            685,916
Year 9..............................               1309               1309                262            685,916
Year 10.............................               1309               1309                262            685,916
                                     ---------------------------------------------------------------------------
    Total...........................  .................  .................  .................         16,922,842
----------------------------------------------------------------------------------------------------------------

    Alternative 2--Require that all vessels have a lifebuoy only. This 
change would have the effect of requiring one lifebuoy on board each 
vessel (barge). The lifebuoy would need to be installed (and replaced 
as needed) at an estimated cost to barge owners of $262 per vessel 
(barge) every 5 years. At an estimated 35,568 barges, we anticipate 
that this alternative would cost $16.9 million overall, undiscounted. 
As mentioned above, the lifebuoy would provide protection redundant to 
the PFD, and in most cases, there would be no one available to deploy 
it. Also mentioned in Alternative 1, above, is the derivation of the 
cost. This alternative was not chosen because it would not provide the 
lowest cost with the maximum benefits.
    Alternative 3--No action. Section 619 of the Act directs the 
Department of Homeland Security (DHS) Secretary to carry out specific 
regulatory actions; therefore if no action is taken, the Coast Guard, 
having been delegated this rulemaking authority by the DHS 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.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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.
    There are approximately 2,622 owners of 22,478 barges. We 
researched 355 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:
     3 Government or non-profit exceeding the threshold
     1 Government or non-profit below the threshold
     45 businesses exceeding the threshold
     43 businesses below the threshold
     263 unknown and therefore considered small
    Based on this analysis, 86 percent of the sample is small entities.
    Table 3 provides a description of the most-prevalent NAICS for the 
small entities.

[[Page 42744]]



                   Table 3--Nine Most-Prevalent NAICS Codes and Small Entities Size Standards
----------------------------------------------------------------------------------------------------------------
                                                                SBA Size
                                                                threshold
      NAICS                Industry            Percent of      (less than     SBA Size standard      Number of
                                             small entities     threshold            type            entities
                                                                 small)
----------------------------------------------------------------------------------------------------------------
336611..........  Ship Building and                      16            1000  Employee...........               7
                   Repairing.
237110..........  Water and Sewer Line and                7     $33,500,000  Revenue............               3
                   Related Structures
                   Construction.
532411..........  Commercial Air, Rail, and               7      $7,000,000  Revenue............               3
                   Water Transportation
                   Equipment Rental and
                   Leasing.
236220..........  Commercial and                          5     $33,500,000  Revenue............               2
                   Institutional Building
                   Construction.
237990..........  Other Heavy and Civil                   5     $33,500,000  Employee...........               2
                   Engineering Construction.
238910..........  Site Preparation                        5     $14,000,000  Employee...........               2
                   Contractors.
327320..........  Ready[dash]Mix Concrete                 5             500  Employee...........               2
                   Manufacturing.
423320..........  Brick, Stone, and Related               5             100  Employee...........               2
                   Construction Material
                   Merchant Wholesalers.
483211..........  Inland Water Freight                    5             500  Employee...........               2
                   Transportation.
                  All others                             43  ..............  ...................              19
                                            --------------------------------------------------------------------
    Total.......  .........................             100  ..............  ...................              44
----------------------------------------------------------------------------------------------------------------

    Company revenue for businesses below the threshold, as established 
by the SBA, ranges from $59,000 to $7.5 million. However, we do not 
anticipate additional costs to this proposed rule, so we do not 
anticipate significant economic impacts on affected small entities as a 
result of this proposed rule.
    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this proposed rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. If you think 
that your business, organization, or governmental jurisdiction 
qualifies as a small entity and that this rule would have a significant 
economic impact on it, please submit a comment to the Docket Management 
Facility at the address under ADDRESSES. In your comment, explain why 
you think it qualifies and how and to what degree this rule would 
economically affect it.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance; please consult Mr. Martin 
Jackson, Office of Design and Engineering Standards, Lifesaving and 
Fire Safety Division (CG-ENG-4) via phone at (202) 372-1391 or via 
email at Martin.L.Jackson@uscg.mil. 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.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247).

D. Collection of Information

    This proposed rule would call for no new collection of information 
under the Paperwork Reduction Act of 1995 (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 the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and have 
determined that it has implications for federalism. A summary of our 
analysis follows.
    Before the enactment of section 619 of the Act, the lifesaving 
device requirements found in 46 U.S.C. 4102(b) did not apply to 
uninspected commercial sailing vessels and uninspected commercial 
barges not carrying passengers for hire. By enacting section 619 of the 
Act, Congress expressly intended existing Coast Guard regulations to 
apply 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 
in so far 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 invite 
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. In accordance with E.O. 13132, the Coast Guard will provide a 
federalism impact statement to document (1) the extent of the Coast 
Guard's consultation with State and local officials that submit 
comments to this proposed rule, (2) a summary of the nature of any 
concerns raised by State or local governments and the Coast Guard's 
position thereon, and (3) a statement of the extent to which the 
concerns of State and local officials have been met.

F. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions

[[Page 42745]]

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 proposed 
rule would not result in such an expenditure, we do discuss the effects 
of this rule elsewhere in this preamble.

G. Taking of Private Property

    This proposed rule would 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 proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

I. Protection of Children

    We have analyzed this proposed 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 proposed 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 proposed 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 (15 U.S.C. 272 
note) directs agencies to use voluntary consensus standards in their 
regulatory activities unless the agency provides Congress, through the 
Office of Management and Budget, with an explanation of why using these 
standards would be inconsistent with applicable law or otherwise 
impractical. Voluntary consensus standards are technical standards 
(e.g., specifications of materials, performance, design, or operation; 
test methods; sampling procedures; and related management systems 
practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

M. Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Management Directive 023-01 and Commandant Instruction 
M16475.lD, which guide the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have made a preliminary determination that this action is one of a 
category of actions that do not individually or cumulatively have a 
significant effect on the human environment. A preliminary 
environmental analysis checklist supporting this determination is 
available in the docket where indicated under the ``Public 
Participation and Request for Comments'' section of this preamble. This 
rule involves regulations concerning equipping of vessels, equipment 
approval and carriage requirements and vessel operation safety 
standards. Thus, this rule is likely to be categorically excluded under 
section 2.B.2, figure 2-1, paragraphs (34)(d) and (e) of the 
Instruction, and 6(a) of the Federal Register, Vol. 6, No. 14, Tuesday, 
July 23, 2002, page 48243. We seek any comments or information that may 
lead to the discovery of a significant environmental impact from this 
proposed rule.

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 proposes 
to amend 46 CFR parts 2, 24, 25, 30, 70, 90, and 188 as follows:

PART 2--VESSEL INSPECTIONS

0
1. The authority citation for part 2 continues 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. 2110, 3103, 3205, 3306, 3307, 3703; 46 U.S.C. 
Chapter 701; E.O. 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; 
Department of Homeland Security Delegation No. 0170.1.


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. The authority citation for part 24 continues to read as follows:

    Authority: 46 U.S.C. 2113, 3306, 4104, 4302; Pub. L. 103-206; 
107 Stat. 2439; E.O. 12234; 45 FR 58801, 3 CFR, 1980 Comp., p. 277; 
Department of Homeland Security Delegation No. 0170.1.


Sec.  24.05-1  [Amended]

0
4. Amend Sec.  24.05-01 to remove the phrase ``carrying passengers or 
passengers for hire'' from Table 24.05-1(a), column 5, rows 3 and 4, 
and remove the phrase ``none.'' from column 5, row 6, adding in its 
place the phrase ``All vessels not covered by columns 2, 3, 4, and 6.''

PART 25--REQUIREMENTS

0
5. The authority citation for part 25 continues to read as follows:

    Authority:  33 U.S.C. 1903(b); 46 U.S.C. 3306, 4102, 4302; 
Department of Homeland Security Delegation No. 0170.1.


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'';

[[Page 42746]]

0
b. In paragraph (b) following the text ``noncommercial use'', remove 
the punctuation ``;'', and add, in its place, the punctuation ``.''; 
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.
0
8. Revise Sec.  25.25-5 to read as follows:


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) The following applies to all vessels, except commercial barges 
not carrying passengers for hire which must comply with paragraph 
(b)(1) of this section or make substitutions authorized by paragraph 
(c) of this section.
    (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 46 CFR subchapter Q, 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), each vessel 26 feet in length or longer 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, 
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 may be 
substituted for a PFD approved under approval series 160.055, 160.155, 
or 160.176, if it is--
    (i) Used in accordance with the conditions marked on the PFD and in 
the owner's manual; and
    (ii) Labeled for use on commercial vessels.
0
9. In Sec.  25.25-9, 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 46 CFR 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 before boarding the 
barge and keeps it on for as long as the individual remains on board. 
Donned lifesaving equipment approved under 46 CFR 160.053 is acceptable 
for the purposes of this paragraph (c).

PART 30--GENERAL PROVISIONS

0
10. The authority citation for part 30 continues to read as follows:


    Authority: 46 U.S.C. 2103, 3306, 3703; Pub. L. 103-206, 107 
Stat. 2439; 49 U.S.C. 5103, 5106; Department of Homeland Security 
Delegation No. 0170.1; Section 30.01-2 also issued under the 
authority of 44 U.S.C. 3507; Section 30.01-05 also issued under the 
authority of Sec. 4109, Pub. L. 101-380, 104 Stat. 515.


Sec.  30.01-5  [Amended]

0
11. Amend Sec.  30.01-5 to remove the phrase ``carrying passengers or 
passengers for hire'' from Table 30.01-5(d), column 5, rows 3 and 4, 
and remove the word ``none'' from column 5, row 6, adding in its place 
the phrase ``All vessels not covered by columns 2, 3, 4, and 6.''

PART 70--GENERAL PROVISIONS

0
12. The authority citation for part 70 continues to read as follows:

    Authority: 46 U.S.C. 3306, 3703; Pub. L. 103-206, 107 Stat. 
2439; 49 U.S.C. 5103, 5106; E.O. 12234, 45 FR 58801, 3 CFR, 1980 
Comp., p. 277; Department of Homeland Security Delegation No. 
0170.1; Section 70.01-15 also issued under the authority of 44 
U.S.C. 3507.


Sec.  70.05-1  [Amended]

0
13. Amend Sec.  70.05-1 to remove the phrase ``carrying passengers or 
passengers for hire'' from Table 70.05-1(a), column 5, rows 3 and 4, 
and remove the word ``none'' from column 5, row 6, adding in its place 
the phrase ``All vessels not covered by columns 2, 3, 4, and 6.''

PART 90--GENERAL PROVISIONS

0
14. The authority citation for part 90 continues to read as follows:

    Authority:  46 U.S.C. 3306, 3703; Pub. L. 103-206, 107 Stat. 
2439; 49 U.S.C. 5103, 5106; E.O. 12234, 45 FR 58801, 3 CFR, 1980 
Comp., p. 277; Department of Homeland Security Delegation No. 
0170.1.


Sec.  90.05-1  [Amended]

0
15. Amend Sec.  90.05-1 to remove the phrase ``carrying passengers or 
passengers for hire'' from Table 90.05-1(a), column 5, rows 3 and 4, 
and remove the word ``none.'' from column 5, row 6, adding in its place 
the phrase ``All vessels not covered by columns 2, 3, 4, and 6.''

PART 188--GENERAL PROVISIONS

0
16. The authority citation for part 188 continues to read as follows:

    Authority:  46 U.S.C. 2113, 3306; Pub. L 103-206, 107 Stat. 
2439; 49 U.S.C. 5103, 5106; E.O. 12234, 45 FR 58801, 3 CFR, 1980 
Comp., p. 277; Department of Homeland Security Delegation No. 
0170.1.


Sec.  188.05-1  [Amended]

0
17. Amend Sec.  188.05-1 to remove the phrase ``carrying passengers or 
passengers for hire'' from Table 188.05-1(a), column 5, rows 3 and 4, 
and remove the word ``none.'' from column 5, row 6, adding in its place 
the phrase ``All vessels not covered by columns 2, 3, 4, and 6.''

    Dated: July 9, 2013.
J. G. Lantz,
Director of Commercial Regulations and Standards, U.S. Coast Guard.
[FR Doc. 2013-16955 Filed 7-16-13; 8:45 am]
BILLING CODE 9110-04-P