[Federal Register Volume 82, Number 207 (Friday, October 27, 2017)]
[Rules and Regulations]
[Pages 49737-49745]
[FR Doc No: 2017-23384]

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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents.

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Federal Register / Vol. 82, No. 207 / Friday, October 27, 2017 /
Rules and Regulations

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 183

[Docket No. USCG-2016-1012]
RIN 1625-AC37

Recreational Boat Flotation Standards--Update of Outboard Engine
Weight Test Requirements

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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

SUMMARY: The Coast Guard finalizes, without change, an interim rule to
update the table of outboard engine weights used in calculating safe
loading capacities and required amounts of flotation material. The
engine weight table was last updated in 1984, and the Coast Guard
Authorization Act of 2015 requires that the Coast Guard update the
table to reflect a specific standard. Finalizing the interim rule will
acknowledge the two public comments received, and contribute to public
awareness of and certainty about the June 1, 2018, effective date.

DATES: This final rule is effective on June 1, 2018.

ADDRESSES: Comments and materials received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-2016-1012 and are available using the Federal
eRulemaking Portal. You can find this docket on the Internet by going
to http://www.regulations.gov, inserting USCG-2016-1012 in the
``Search'' box, and then clicking ``Search.''

FOR FURTHER INFORMATION CONTACT: For information about this document
call or email Mr. Jeffrey Ludwig, Coast Guard; telephone<PHONE_NUMBER>,
email [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations
II. Basis and Purpose
III. Regulatory History
IV. Background
V. Discussion of the Rule
VI. Discussion of Comments and Changes
VII. 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

ABYC American Boat and Yacht Council
ABYC S-30 American Boat and Yacht Council S-30--Outboard Engines and
Related Equipment Weights
CGAA Coast Guard Authorization Act of 2015 (Pub. L. 114-120, 130
Stat. 27; Feb. 8, 2016)
CFR Code of Federal Regulations
DHS Department of Homeland Security
E.O. Executive Order
FR Federal Register
FRFA Final Regulatory Flexibility Analysis
MIC Manufacturer Identification Code
NAICS North American Industry Classification System
NBSAC National Boating Safety Advisory Council
NMMA National Marine Manufacturers Association
OMB Office of Management and Budget
Pub. L. Public Law
RA Regulatory analysis
Sec.  Section symbol
SBA Small Business Administration
U.S.C. United States Code

II. Basis and Purpose

    Section 308 of the Coast Guard Authorization Act of 2015 (Pub. L.
114-120, 130 Stat. 27) (CGAA) requires the Coast Guard to issue
regulations, not later than 180 days after enactment, updating Table 4
of subpart H in Title 33 of the Code of Federal Regulations (CFR) part
183 to reflect the American Boat and Yacht Council S-30--Outboard
Engines and Related Equipment Weights (ABYC S-30) standard.
    Additionally, 46 U.S.C. 4302(b), which provides authority for 33
CFR part 183, requires the effective date for rules issued under that
provision be delayed at least 180 days after publication, but not more
than 2 years for cases involving major product design, retooling, or
changes in the manufacturing process. Section 4302(b) also requires
consultation with the National Boating Safety Advisory Council
(NBSAC).\1\ Because this rule amends regulations issued pursuant to
section 4302, the 180-day delay is appropriate to provide manufacturers
with time to adjust their operations to comply with the new standard.
The Coast Guard has implemented that delay of effective date in this
final rule.
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    \1\ The NBSAC recommended to the Coast Guard in 2000 that the
weight table be updated (Resolution number 2000-66-05), and
discussed the replacement of Table 4 with the ABYC standard at their
April 2016 meeting.
---------------------------------------------------------------------------

III. Regulatory History

    On April 5, 2017, the Coast Guard published an interim rule with
request for comments (82 FR 16512). We received two public comments on
the interim rule. No public meeting was requested, and none was held.

IV. Background

    Congress has authorized the Coast Guard to prescribe regulations
establishing minimum safety standards for recreational vessels and
associated equipment. In 1977, the Coast Guard established flotation
requirements for boats less than 20 feet in length, and established a
weight table (Table 4 of subpart H in 33 CFR part 183) used to assist
the boat manufacturer in determining the amount of flotation to be
included in a boat's design and construction.
    Table 4 was last updated in 1984, but the size and weight of
outboard engines have evolved over the years to the point that Table 4
no longer accurately represents the weights of outboard engines
available on the market.
    The American Boat and Yacht Council (ABYC) is a non-profit
organization that develops voluntary safety standards for the design,
construction, maintenance, and repair of recreational boats. Among the
voluntary safety standards that ABYC develops and updates on a regular
basis is S-30--Outboard Engines and Related Equipment Weights (ABYC S-
30). This standard reflects the current state of marine outboard engine
weights.

V. Discussion of the Rule

    This rulemaking adopts the current ABYC S-30 to replace Table 4 of
subpart H in 33 CFR part 183. The current ABYC S-30 is dated July 2012,
and was the standard in effect on the date of enactment of the CGAA.
    In the CFR, Table 4 applies to monohull outboard boats that are
less than 20 feet in length, which includes recreational vessels as
well as some commercial fishing vessels. Table 4 is also used
indirectly for flotation requirements for survival craft covered by 46
CFR part 25 (uninspected vessels), 46 CFR part 117 (small passenger
vessels carrying more than 150 passengers), 46 CFR part 141 (towing
vessels) and 46 CFR part 180 (small passenger vessels under 100 gross
tons). Changing the figures in Table 4, as required by the CGAA, will
require more flotation in each new boat, to support the weight of
heavier engines.
    The interim rule removed Table 4 and replaced it with a new section
(section 183.75) in subpart E of part 183. That section contains the
table of the ABYC S-30 standard and its corresponding footnotes. The
Coast Guard made minor edits to the footnotes developed by ABYC to
accommodate the location of the table in the CFR and to reflect the
removal of Table 4. We also made conforming changes to several sections
that referenced Table 4.
    Finalizing the rule will acknowledge the public comments received,
and contribute to public awareness of and certainty about the June 1,
2018, effective date.

VI. Discussion of Comments and Changes

    The Coast Guard received two public comments in response to the
interim rule. One commenter was supportive of the changes made in the
interim rule. The other comment stated that in addition to small boat
flotation, other factors that contribute to boat safety should be
considered. The Coast Guard agrees that other factors can contribute to
boat safety. However, they are outside of the scope of this rulemaking,
in which we are focused on the requirements of the CGAA and the ABYC S-
30 standard. This final rule makes no changes to the interim rule.

VII. 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

    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. Executive Order 13771 (``Reducing Regulation and
Controlling Regulatory Costs'') directs agencies to reduce regulation
and control regulatory costs and provides that ``for every one new
regulation issued, at least two prior regulations be identified for
elimination, and that the cost of planned regulations be prudently
managed and controlled through a budgeting process.''
    The Office of Management and Budget (OMB) has not designated this
rule a significant regulatory action under section 3(f) of Executive
Order 12866. Accordingly, the Office of Management and Budget (OMB) has
not reviewed it. As this rule is not a significant regulatory action,
this rule is exempt from the requirements of Executive Order 13771. See
OMB's Memorandum ``Guidance Implementing Executive Order 13771, Titled
`Reducing Regulation and Controlling Regulatory Costs''' (April 5,
2017). A regulatory analysis (RA) follows. This RA is unchanged from
the RA included in the interim rule (82 FR 16512; April 5, 2017).
    This RA provides an evaluation of the economic impacts associated
with this final rule. The Coast Guard is issuing a final rule to
implement section 308 of the CGAA. The CGAA mandates that the Coast
Guard issue regulations to amend Table 4 of subpart H in 33 CFR part
183 to reflect the standards in ABYC S-30. Consequently, 100 percent of
the costs of this rule are due to a Congressional mandate and the Coast
Guard has no discretion to adopt a different standard that would lower
the cost of this rule. Changes in the design and construction of modern
outboard engines necessitate a change in the table of outboard engine
weights used in calculating safe loading capacities and required
amounts of flotation material in the Safe Loading and Flotation
Standards found in 33 CFR part 183, subparts G and H.
    Table 1 of this document provides a summary of the affected
population, costs, and benefits of this rule.

                                Table 1--Summary of the Impacts of the Final Rule
----------------------------------------------------------------------------------------------------------------
                              Category                                                  Summary
----------------------------------------------------------------------------------------------------------------
Applicability.......................................................  Update Table 4 of subpart H in 33 CFR part
                                                                       183 with ABYC S-30.
Affected Population.................................................  1,427 manufacturers of monohull outboard
                                                                       boats of less than 20 feet in length.
Costs to Industry ($, 7% discount rate).............................  10-year: $6,624,488.
                                                                      Annualized: $943,178.
Unquantified Benefits...............................................  Creates uniformity by aligning all boats
                                                                       to the same standard.
                                                                      Brings those boats not currently in
                                                                       compliance with ABYC S-30 to a higher
                                                                       level of safety than the standard
                                                                       currently in regulation.
----------------------------------------------------------------------------------------------------------------

Affected Population
    This final rule adopts the current ABYC S-30 to replace Table 4 of
subpart H in 33 CFR part 183. Table 4 applies to monohull outboard
boats that are less than 20 feet in length, including recreational
vessels and some commercial fishing vessels.
    Table 4 is also used indirectly for flotation requirements for
survival craft covered by 46 CFR part 25 (uninspected vessels), 46 CFR
part 117 (small passenger vessels carrying more than 150 passengers),
46 CFR part 141 (towing vessels), and 46 CFR part 180 (small passenger
vessels under 100 gross tons). Small passenger vessels are required to
carry certain survival craft, depending on their route and
construction, in order to have the capacity to evacuate a certain
percentage of the number of people on board. These survival craft are
generally life rafts or floats, which do not have engines and are not
impacted by this final rule. However, small passenger

vessels could voluntarily carry a small boat that can be used to carry
some of the passengers, thereby reducing the number of other survival
craft they are required to carry (46 CFR 117.200(b) and 46 CFR
180.200(b)). Because this is a voluntary option available for these
vessels, we do not include them in our analysis. However, we do note
that if the uninspected vessels, small passenger vessels carrying more
than 150 passengers, towing vessels, or small passenger vessels under
100 gross tons choose to carry a small boat on board that does not meet
ABYC S-30 standard, they could be indirectly affected by this final
rule. Because this final rule applies only to new boats manufactured
after June 1, 2018, any small passenger vessels already carrying small
boats subject to Table 4 of subpart H are not affected. If they choose
to replace their small boat with a boat built after June 1, 2018, they
may be indirectly affected if the manufacturer passes the costs of this
final rule on to the consumers. We account for the direct costs to
manufacturers in this analysis.
    The final rule affects manufacturers that produce monohull outboard
boats that are less than 20 feet in length and that are not currently
building boats to ABYC S-30 standard. The Coast Guard used the list of
active Manufacturer Identification Code (MIC) holders, as required by
33 CFR 181 subpart C, to determine the affected population. This list
represents all recreational boat MICs that are currently active. We
then removed any MICs that will not be affected by this rule from the
list of manufacturers. This includes: (1) Manufacturers with multiple
MICs; (2) MICs belonging to manufacturers that only build boats greater
than 20 feet in length; (3) MICs belonging to manufacturers that do not
build monohull outboard boats; and (4) MICs belonging to manufacturers
that only produce boats exempted from this regulation by 33 CFR
183.201(b), including sailboats, canoes, kayaks, inflatable boats,
submersibles, surface effect vessels, amphibious vessels, and
raceboats. We found there are no more than 1,519 affected manufacturers
that produce monohull outboard boats that are less than 20 feet in
length.
    Some of these 1,519 monohull manufacturers are currently in
compliance with ABYC S-30 standard, and therefore will not incur
additional costs because of this rule. The National Marine
Manufacturers Association (NMMA) requires its members to build boats to
the ABYC standard.\2\ These NMMA builders produce about 85 percent of
the recreational boats built each year.\3\ We found 92 monohull
manufacturers that are currently NMMA members and therefore we assume
they are in compliance. We assume the remaining 1,427 monohull
manufacturers are not compliant with the current voluntary standard and
will be affected by this rule.
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    \2\ See Michael Vatalaro, What ``NMMA-Certified'' Really Means,
BoatUS, Feb. 2014, http://www.boatus.com/magazine/2014/february/what-nnma-certified-means.asp.
    \3\ Id.
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Costs to Industry
    This final rule adopts the current ABYC S-30, to replace Table 4 of
subpart H. This change will increase costs to 1,427 monohull
manufacturers that are assumed to be not in compliance. The increase in
the weight table figures will require an additional 1 to 2 cubic feet
of flotation to be added to each boat manufactured after the effective
date of June 1, 2018. We estimate the foam for the additional flotation
will cost an average of $10 per boat.\4\ Some manufacturers may need to
make minor adjustments such as enclosing an aft seat and adding foam
under the seat to accommodate the additional foam in the boats.
Therefore, Coast Guard uses an estimate of $50 per boat to account for
the foam and any minor adjustments that may be necessary.\5\
Manufacturers could incur costs related to determining where to put the
additional flotation on a vessel, but we believe redesign costs would
not be needed as the additional flotation material is minimal and the
placement of the material is fairly standard. The manufacturers are
already required to add flotation to boats, so there will be no costs
for new equipment, facilities, or retrofitting of facilities.
---------------------------------------------------------------------------

    \4\ The $10 estimate is based on 2 LB Density Urethane Foam
estimates from US Composites (http://www.uscomposites.com/foam.html)
and conversations with manufacturers. Foam prices vary based on the
size of the kits. The cost of kits range from a 2 cubic foot kit
cost of $22.50 ($11.25 per cubic foot) to $264 for a 40 cubic foot
kit ($6.60 per cubic foot). Conversations with manufacturers
confirmed $10 is a reasonable average estimate for adding 1 to 2
cubic feet of additional flotation, that takes into account the
varying costs based on the size of kits purchased and that
manufacturers may pay less than the listed prices based on their
purchasing agreements with the suppliers.
    \5\ Based on discussions with manufacturers, the additional $40
estimate is to cover the cost of enclosing a rear seat to add
flotation foam under it or to add small chambers, especially on open
aluminum boats, to accommodate the additional flotation foam.
---------------------------------------------------------------------------

    To estimate the total cost to industry, we then estimated the total
number of outboard boats less than 20 feet in length manufactured per
year by the monohull manufacturers that are not in compliance. The
Coast Guard used data from the NMMA's 2015 Recreational Boating
Statistical Abstract \6\ to estimate the total affected outboard boats.
The NMMA breaks down outboard boat sales by two hull materials:
Fiberglass and aluminum. The NMMA estimates that in 2015, 51,300
fiberglass outboard boats and 104,500 aluminum outboard boats were
sold. Of these boats sold, 42.7 percent of the fiberglass outboard
boats and 60.4 percent of the aluminum outboard boats were less than 20
feet in length. Multiplying the percentage market share of boats less
than 20 feet by the total sales of boats by material, we found there
were 21,905 fiberglass boats and 63,118 aluminum outboard boats less
than 20 feet sold in 2015 (see Table 2).
---------------------------------------------------------------------------

    \6\ A summary of the NMMA abstract is available at https://www.nmma.org/statistics/publications/statistical-abstract. The full
report is available for purchase through NMMA. The Coast Guard used
data from Powerboat Sales Trends, Table 1: Outboard boats: Estimated
sales by hull market; Table 2: Fiberglass outboard boats: Estimated
market share by length; and Table 3: Aluminum outboard boats:
Estimated market share by length.

                    Table 2--Total Sales and Market Share of Outboard Boats by Material Type
----------------------------------------------------------------------------------------------------------------
                                                                                Percentage
                                                                                market share   Total outboard
                    Outboard boat by material                        Estimated    outboard boats    boats less
                                                                    total sales    less than 20    than 20 feet
                                                                                feet        sold in 2015
----------------------------------------------------------------------------------------------------------------
Fiberglass......................................................          51,300            42.7          21,905
Aluminum........................................................         104,500            60.4          63,118
                                                                 -----------------------------------------------
    Total.......................................................         155,800  ..............          85,023
----------------------------------------------------------------------------------------------------------------

    The total 85,023 outboard boats less than 20 feet that were sold in
2015 were produced by a mix of manufacturers that are already in
compliance with the ABYC S-30 standard and manufacturers that are not
in compliance and will be impacted by this rule. The NMMA estimates
that around 85 percent of the boats sold in the United States are
already in compliance with the ABYC S-30 standard. Therefore, the Coast
Guard estimates 15 percent of the total outboard boats less than 20
feet sold were produced by manufacturers not in compliance with the
ABYC standard. These 12,753 boats (15 percent of the 85,023 outboard
boats less than 20 feet, rounded) will require $50 of additional
flotation materials to align with the new standard.
    To estimate the affected outboard boats over the 10-year period of
analysis, we used NMMA data to forecast future boat building
production.\7\ The NMMA anticipates annual production will rise through
at least 2018 before leveling off into at least early 2019. The NMMA
does not have estimates for production past 2019. Since the NMMA
anticipates production will plateau once it reaches the levels of
production estimated in 2019, the Coast Guard assumes production will
hold at 2019 levels. Production could decrease or increase, resulting
in higher or lower industry costs, but for the purposes of this
analysis we assume production remains constant past 2019. Table 3 shows
our baseline affected population, the forecasted percentage increases
over the previous year estimated by NMMA, and the resulting number of
affected outboard boats.\8\
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    \7\ Production forecasts are internal NMMA estimates that were
provided to the Coast Guard on 9/7/2016.
    \8\ Forecasted percentages for 2016 and 2019 were given in NMMA
data. Forecasted percentages for years 2017 and 2018 were calculated
from NMMA's forecasted annual production index. For 2017, the
affected outboard boats manufactured annually are calculated as [1 +
((170.1-147.6)/147.6)] * 14,232 = 16,402, rounded. For 2018, the
affected outboard boats manufactured annually are calculated as [1 +
(185.8-170.1)/170.1] * 16,402, rounded.

               Table 3--Forecasted Affected Outboard Boats
------------------------------------------------------------------------
                                            Forecasted       Affected
                                            percentage    outboard boats
                  Year                     increase over   manufactured
                                           previous year     annually
------------------------------------------------------------------------
2015....................................  ..............          12,753
2016....................................            11.6          14,232
2017....................................            15.2          16,402
2018....................................             9.2          17,916
2019....................................             6.1          19,009
2020+...................................             0.0          19,009
------------------------------------------------------------------------

    As this final rule will be effective June 1, 2018, any outboard
boats manufactured after this date will need to be in compliance with
ABYC S-30 standard. The Coast Guard anticipates most manufacturers will
begin making the necessary changes at the beginning of 2018. All
manufacturers will be in compliance by June 1, 2018 of Year 1, which
corresponds with the 2018 estimated affected outboard boats in Table 3.
We estimate there will be 17,916 affected outboard boats in Year 1 and
19,009 affected outboard boats in Years 2 through 10. Table 4
summarizes the estimated affected population of outboard boats that we
used to estimate the 10-year costs of this final rule.

         Table 4--Ten-Year Projection of Affected Outboard Boats
------------------------------------------------------------------------
                                                             Affected
                          Year                            outboard boats
------------------------------------------------------------------------
1.......................................................          17,916
2.......................................................          19,009
3.......................................................          19,009
4.......................................................          19,009
5.......................................................          19,009
6.......................................................          19,009
7.......................................................          19,009
8.......................................................          19,009
9.......................................................          19,009
10......................................................          19,009
------------------------------------------------------------------------

    We then multiplied the projected number of affected outboard boats
each year in Table 4 by the estimated cost per boat of $50. Table 5
shows the total costs of this final rule on an undiscounted basis, and
discounted at 7 and 3 percent.

                                       Table 5--Total Costs of Final Rule
----------------------------------------------------------------------------------------------------------------
                                                                       Total             Total, discounted
                              Year                                 undiscounted  -------------------------------
                                                                       costs            7%              3%
----------------------------------------------------------------------------------------------------------------
1...............................................................        $895,800        $837,196        $869,709
2...............................................................         950,450         830,160         895,890
3...............................................................         950,450         775,850         869,796
4...............................................................         950,450         725,094         844,463
5...............................................................         950,450         677,658         819,867
6...............................................................         950,450         633,325         795,987
7...............................................................         950,450         591,892         772,803
8...............................................................         950,450         553,171         750,294
9...............................................................         950,450         516,982         728,441
10..............................................................         950,450         483,161         707,224
                                                                 -----------------------------------------------

    Total.......................................................       9,449,850       6,624,488       8,054,473
                                                                 -----------------------------------------------
        Annualized..............................................  ..............         943,178         944,230
----------------------------------------------------------------------------------------------------------------

    The total 10-year undiscounted cost of this final rule is
$9,449,850. The total 10-year discounted cost of this final rule is
$6,624,488 and the annualized cost is $943,178, both discounted at 7
percent. The manufacturers of outboard boats less than 20 feet in
length not in compliance with ABYC S-30 standard will bear these costs.
However, it is possible that manufacturers may pass these costs onto
the recreational boat owners by incorporating the additional costs of
this final rule into the sales price. The sale price of the affected
boats can range from $3,000 through $50,000. If we use an average of
$26,500 per boat, the $50 average cost per boat represents 0.2 percent
of the sales price. However, 85 percent of the boats sold in the United
States are already in compliance and include this cost of floatation in
the sales prices.
Benefits
    This rule does not provide any quantitative benefits. However, it
does have qualitative benefits. This rule creates uniformity by
aligning all boats to the same standard. The ABYC S-30 provides a
higher level of safety than that provided by the standard currently in
the regulation. Requiring all boats less than 20 feet in length that
currently do not meet ABYC S-30 standard weights to comply with that
standard will improve the buoyancy of these boats, and therefore,
improve their operational safety.

B. Small Entities

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the Coast Guard prepared this Final Regulatory Flexibility
Analysis (FRFA) that examines the impacts of the final rule on small
entities (5 U.S.C. 601 et seq.). We recognize that a FRFA is not
required for a final rule that was not preceded by a general notice of
proposed rulemaking. We are including an analysis of the final rule
requirements on small entities for informational purposes.
    A small entity may be: A small independent business, defined as
independently owned and operated, is organized for profit, and is not
dominant in its field per the Small Business Act (5 U.S.C. 632); a
small not-for-profit organization (any not-for-profit enterprise which
is independently owned and operated and is not dominant in its field);
or a small governmental jurisdiction (locality with fewer than 50,000
people) per the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612.
    A FRFA addresses the following:
    (1) A statement of the need for, and objectives of, the rule;
    (2) A statement of the significant issues raised by the public
comments in response to the initial regulatory flexibility analysis, a
statement of the assessment of the agency of such issues, and a
statement of any changes made in the interim final rule as a result of
such comments;
    (3) The response of the agency to any comments filed by the Chief
Counsel for Advocacy of the Small Business Administration in response
to the interim final rule, and a detailed statement of any change made
to the interim final rule in the final rule as a result of the
comments;
    (4) A description of and an estimate of the number of small
entities to which the rule will apply or an explanation of why no such
estimate is available;
    (5) A description of the projected reporting, recordkeeping and
other compliance requirements of the rule, including an estimate of the
classes of small entities which will be subject to the requirement and
the type of professional skills necessary for preparation of the report
or record; and
    (6) A description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each one of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected.
    1. A statement of the need for, and objectives of, the rule.
    Section 308 of the CGAA requires the Coast Guard to issue
regulations updating Table 4 of subpart H in Title 33 CFR part 183 to
reflect the ABYC S-30 standard.
    Congress has authorized the Coast Guard to prescribe regulations
establishing minimum safety standards for recreational vessels and
associated equipment. In 1977, the Coast Guard established flotation
requirements for boats less than 20 feet in length, and established a
weight table (Table 4 of subpart H in 33 CFR part 183) used to assist
the boat manufacturer in determining the amount of flotation to be
included in a boat's design and construction.
    Table 4 was last updated in 1984, but the size and weight of
outboard engines has evolved over the years to the point where Table 4
no longer accurately represents the weights of outboard engines
available on the market. Changes in the design and construction of
modern outboard engines necessitate a change in the table of outboard
engine weights used in calculating safe loading capacities and required
amounts of flotation material in the Safe Loading and Flotation
Standards found in 33 CFR part 183, subparts G and H.
    2. A statement of the significant issues raised by the public
comments in response to the initial regulatory flexibility analysis, a
statement of the assessment of the agency of such issues, and a
statement of any changes made in the interim final rule as a result of
the comments.
    The Coast Guard did not receive any comments on the initial
regulatory flexibility analysis.
    3. The response of the agency to any comments filed by the Chief
Counsel for Advocacy of the Small Business Administration in response
to the interim final rule, and a detailed statement of any change made
to the interim final rule in the final rule as a result of the
comments.
    The Coast Guard did not receive any comments from the Small
Business Administration's (SBA) Office of Advocacy regarding the impact
that the interim final rule would have on small entities.
    4. A description of and an estimate of the number of small entities
to which the rule will apply or an explanation of why no such estimate
is available.

    This final rule affects manufacturers that produce monohull
outboard boats that are less than 20 feet in length that are not
currently building boats to ABYC S-30 standard.
    Based on Coast Guard's list of active MIC holders, we estimate this
final rule will affect 1,427 U.S. companies. We researched the number
of employees and revenue of these companies using proprietary and
public business databases.\9\ We then measured company size data using
the SBA's business size standards to assess how many companies in this
industry may be small entities.\10\ The SBA provides business size
standards for all sectors of the North American Industry Classification
System (NAICS).\11\
---------------------------------------------------------------------------

    \9\ Data sources: ReferenceUSA (www.referenceusagov.com) and
Manta (www.manta.com).
    \10\ ``Small entities'' include small businesses that meet the
Small Business Administration size standard for small business
concerns at 13 CFR 121.201, small governmental jurisdictions with a
population of less than 50,000, and small organizations that are
independently owned not-for-profit enterprises and which are not
dominant in their field. See 5 U.S.C. 601(3)-(5).
    \11\ SBA size standards are matched to NAICS, effective February
26, 2016. See Contracting: Table of Small Business Size Standards,
https://www.sba.gov/content/small-business-size-standards.
---------------------------------------------------------------------------

    Using a random sample of companies out of the total population of
1,427 affected U.S. companies, we researched 749 companies and found
company-specific revenue and employment information and data on 388 of
them.\12\ We assumed that the remaining 361 companies (for which the
revenue and employment information was unavailable) are small entities
for the purpose of this analysis. Of the 388 companies for which
revenue and employment information was available, we found three
entities that exceeded the small entity thresholds for their relevant
NAICS code. The remaining 385 companies are small entities as defined
by the SBA thresholds. Adding these small entities to the companies
without revenue and employment information, we estimate a total of 746
of the companies are small entities. Using the results of this random
sample, we calculated the fraction of small entities by dividing the
total small entities by the sample size. Therefore, we estimate that
99.6 percent of all monohull companies not currently building to ABYC
S-30 standard fall below the threshold for small businesses. Table 6
summarizes the findings of our small entity threshold analysis.
---------------------------------------------------------------------------

    \12\ Using a 95 percent confidence level, a sample size of 385
companies is sufficient. Our research started with a random sample
of 749 companies that yielded 388 entities for which requisite
information was found.

       Table 6--Number of Companies and Small Entities Researched
------------------------------------------------------------------------
                                                            Number of
                       Category                             companies
------------------------------------------------------------------------
(a) Sample Size.......................................               749
(b) Without Revenue or Employment Data................               361
(c ) With Revenue or Employee Data....................               388
(d) Exceeded Small Entity Threshold...................                 3
(e) Below the Small Business Threshold................               385
Total Small Entities, (b) + (e).......................               746
Total, (a)............................................               749
Fraction Small Entities...............................             99.6%
------------------------------------------------------------------------

    Our analysis of the available company information revealed 64
primary NAICS codes. Table 7 displays the NAICS codes of the small
entities found in our sample.

                                Table 7--NAICS Codes of Identified Small Entities
----------------------------------------------------------------------------------------------------------------
                                                         Count of                                    SBA size
                Title                   NAICS code       companies      SBA size  standard type      threshold
----------------------------------------------------------------------------------------------------------------
Boat Building.......................          336612             151  Employees.................           1,000
Boat Dealers........................          441222              56  Revenue...................     $32,500,000
Other Personal and Household Goods            811490              32  Revenue...................      $7,500,000
 Repair and Maintenance.
Marinas.............................          713930              28  Revenue...................      $7,500,000
All Other Support Services..........          561990              14  Revenue...................     $11,000,000
Mineral Wool Manufacturing..........          327993              11  Employees.................           1,500
Commercial and Industrial Machinery           811310               8  Revenue...................      $7,500,000
 and Equipment (except Automotive
 and Electronic) Repair and
 Maintenance.
All Other Miscellaneous                       339999               5  Employees.................             500
 Manufacturing.
Fabricated Structural Metal                   332312               4  Employees.................             500
 Manufacturing.
New Single-family Housing                     236115               3  Revenue...................     $36,500,000
 Construction (Except For-Sale
 Builders).
All Other Plastics Product                    326199               3  Employees.................             750
 Manufacturing.
Sporting and Recreational Goods and           423910               3  Employees.................             100
 Supplies Merchant Wholesalers.
Other Miscellaneous Durable Goods             423990               3  Employees.................             100
 Merchant Wholesalers.
Other Building Material Dealers.....          444190               3  Revenue...................     $20,500,000
Engineering Services................          541330               3  Revenue...................     $15,000,000
All Other Business Support Services.          561499               3  Revenue...................     $15,000,000
Site Preparation Contractors........          238910               2  Revenue...................     $15,000,000
Sheet Metal Work Manufacturing......          332322               2  Employees.................             500
Special Die and Tool, Die Set, Jig            333514               2  Employees.................             500
 and Fixture Manufacturing.
Travel Trailer and Camper                     336214               2  Employees.................           1,000
 Manufacturing.
Wholesale Trade Agents and Brokers..          425120               2  Employees.................             100
All Other Miscellaneous Store                 453998               2  Revenue...................      $7,500,000
 Retailers (except Tobacco Stores).
Museums.............................          712110               2  Revenue...................     $27,500,000
Hunting and Trapping................          114210               1  Revenue...................      $5,500,000
Water Supply and Irrigation Systems.          221310               1  Revenue...................     $27,500,000

Commercial and Institutional                  236220               1  Revenue...................     $36,500,000
 Building Construction.
Other Heavy and Civil Engineering             237990               1  Revenue...................     $36,500,000
 Construction.
Plumbing, Heating, and Air-                   238220               1  Revenue...................     $15,000,000
 Conditioning Contractors.
All Other Specialty Trade                     238990               1  Revenue...................     $15,000,000
 Contractors.
Fabric Coating Mills................          313320               1  Employees.................           1,000
Other Millwork (including Flooring).          321918               1  Employees.................             500
Plastics Material and Resin                   325211               1  Employees.................           1,250
 Manufacturing.
Fertilizer (Mixing Only)                      325314               1  Employees.................             500
 Manufacturing.
All Other Miscellaneous Nonmetallic           327999               1  Employees.................             500
 Mineral Product Manufacturing.
Alumina Refining and Primary                  331313               1  Employees.................           1,000
 Aluminum Production.
Aluminum Sheet, Plate and Foil                331315               1  Employees.................           1,250
 Manufacturing.
Other Aluminum Rolling, Drawing, and          331318               1  Employees.................             750
 Extruding.
Plate Work Manufacturing............          332313               1  Employees.................             750
Farm Machinery and Equipment                  333111               1  Employees.................           1,250
 Manufacturing.
Overhead Traveling Crane, Hoist and           333923               1  Employees.................           1,250
 Monorail System Manufacturing.
All Other Miscellaneous General               333999               1  Employees.................             500
 Purpose Machinery Manufacturing.
Other Communications Equipment                334290               1  Employees.................             750
 Manufacturing.
Truck Trailer Manufacturing.........          336212               1  Employees.................           1,000
Motor Vehicle Steering and                    336330               1  Employees.................           1,000
 Suspension Components (except
 Spring) Manufacturing.
Ship Building and Repairing.........          336611               1  Employees.................           1,250
All Other Transportation Equipment            336999               1  Employees.................           1,000
 Manufacturing.
Sporting and Athletic Goods                   339920               1  Employees.................             750
 Manufacturing.
Hobby, Toy and Game Stores..........          451120               1  Revenue...................     $27,500,000
Scenic and Sightseeing                        487210               1  Revenue...................      $7,500,000
 Transportation, Water.
Navigational Services to Shipping...          488330               1  Revenue...................     $38,500,000
Miscellaneous Intermediation........          523910               1  Revenue...................     $38,500,000
Recreational Goods Rental...........          532292               1  Revenue...................      $7,500,000
Landscape Architectural Services....          541320               1  Revenue...................      $7,500,000
Industrial Design Services..........          541420               1  Revenue...................      $7,500,000
Graphic Design Services.............          541430               1  Revenue...................      $7,500,000
Administrative Management and                 541611               1  Revenue...................     $15,000,000
 General Management Consulting
 Services.
Other Management Consulting Services          541618               1  Revenue...................     $15,000,000
All Other Professional, Scientific            541990               1  Revenue...................     $15,000,000
 and Technical Services.
Landscaping Services................          561730               1  Revenue...................      $7,500,000
All Other Miscellaneous Schools and           611699               1  Revenue...................     $11,000,000
 Instruction.
Emergency and Other Relief Services.          624230               1  Revenue...................     $32,500,000
Fitness and Recreational Sports               713940               1  Revenue...................      $7,500,000
 Centers.
RV (Recreational Vehicle) Parks and           721211               1  Revenue...................      $7,500,000
 Campgrounds.
Civic and Social Organizations......          813410               1  Revenue...................      $7,500,000
----------------------------------------------------------------------------------------------------------------

    Revenue Impacts of the Final Rule. To determine the impacts of the
final rule on small monohull manufacturers, we used information on
revenues or employee size as available on business directory Web
sites.\13\
---------------------------------------------------------------------------

    \13\ As indicated by either the revenue or employee data for
businesses, we use ReferenceUSA (www.referenceusagov.com) and Manta
(www.manta.com).
---------------------------------------------------------------------------

    As discussed in the ``Cost to Industry'' section of the RA, we
estimate that there are 17,916 outboard boats less than 20 feet
produced by manufacturers annually that will require additional
flotation materials to align with this final rule in Year 1. Coast
Guard does not have information on the market share of the small entity
manufacturers and the number of boats they produce each year.
Therefore, we assume each manufacturer consistently produces the same
number of boats each year and that each manufacturer has the same
market share. With 1,427 affected U.S. companies, this is an average of
about 13 outboard boats per manufacturer (rounded). In Years 2 through
10, the Coast Guard estimates there are 19,009 outboard boats affected,
at an average of about 13 outboard boats per manufacturer (19,009 boats
divided by 1,427 manufacturers, rounded). At an estimated cost of $50
per outboard boat, the average total cost per manufacturer is $650 in
Years 1 through 10. Table 8 summarizes the average costs per
manufacturer of the final rule by year.

                                                   Table 8--Final Rule Average Costs per Manufacturer
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Average outboard
                         Year(s)                           Affected outboard  Manufacturers not  boats produced by  Cost per outboard   Average cost per
                                                                 boats          in compliance       manufacturer          boats           manufacturer
--------------------------------------------------------------------------------------------------------------------------------------------------------
1........................................................             17,916              1,427                 13                $50               $650
2-10.....................................................             19,009              1,427                 13                 50                650
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Next, we compared the average cost per manufacturer to the revenue
of the manufacturers in our sample. As shown in Table 6, we found
revenue or company data for 385 small entities. We found revenue
information for 371 of these small entities, and we were only able to
find employee data for 14 entities. Therefore, we could not compare the
cost per manufacturer to the revenues for the 14 entities with only
employee data. Table 9 summarizes the results. In Years 1 through 10,
94.6 percent of the affected manufacturers will incur a cost of 1

percent or less of revenue in any given year, while 0.3 percent will
incur a cost impact of greater than 10 percent of revenue.

                   Table 9--Final Rule Revenue Impacts
------------------------------------------------------------------------
                                        Number of          Percent of
           Impact range                  affected           affected
                                      manufacturers      manufacturers
------------------------------------------------------------------------
0% < Impact <= 1%.................                352               94.9
1% < Impact <= 3%.................                 17                4.6
3% < Impact <= 5%.................                  1                0.3
5% < Impact <= 10%................                  0                  0
>= 10%............................                  1                0.3
                                   -------------------------------------
    Total.........................                371                100
------------------------------------------------------------------------

    5. A description of the projected reporting, recordkeeping and
other compliance requirements of the rule, including an estimate of the
classes of small entities which will be subject to the requirement and
the type of professional skills necessary for preparation of the report
or record.
    This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520.
    6. A description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each one of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected.
    This final rule implements section 308 of CGAA. The CGAA mandates
the update of Table 4 in 33 CFR part 183. As such, the Coast Guard has
no discretion to offer alternatives that minimize the impact on small
entities while accomplishing the stated objective of the statute. To
ease implementation of this requirement, the Coast Guard is delaying
the effective date until June 1, 2018, so that the new requirements
will apply only to boat manufacturers who build boats after that date.
    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).

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104-121, 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. 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 rule calls 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 Executive Order 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 E.O. 13132 and
have determined that it is consistent with the fundamental federalism
principles and requirements described in Executive Order 13132. Our
analysis is explained below.
    Congress directed the Coast Guard to ``establish minimum safety
standards for recreational vessels'' (46 U.S.C. 4302). This rulemaking
revises regulations issued pursuant to that statute and Congress has
expressly limited States from regulating in this field, as specified in
46 U.S.C. 4306. Under 46 U.S.C. 4306, ``a State or political
subdivision of a State may not establish, continue in effect, or
enforce a law or regulation establishing a recreational vessel or
associated or equipment performance or other safety standard . . . that
is not identical to a regulation prescribed under'' 46 U.S.C. 4302. As
a result, States or local governments are expressly prohibited from
regulating within this category unless the regulation is identical to
regulation prescribed under 46 U.S.C. 4302 or an exemption is granted
under 46 U.S.C. 4305. Therefore, the rule is consistent with the
principles of federalism and preemption requirements in Executive Order
13132.

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 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, (``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, codified as a
note to 15 U.S.C. 272, 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 (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 rule uses a voluntary consensus standard: The current ABYC S-
30.

M. Environment

    We have analyzed this 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 (42 U.S.C. 4321-4370f), 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
final rule is categorically excluded under section 2.B.2, figure 2-1,
paragraphs (34)(d) and (e) of the Instruction and under section 6(a) of
the ``Appendix to National Environmental Policy Act: Coast Guard
Procedures for Categorical Exclusions, Notice of Final Agency Policy''
(67 FR 48243, July 23, 2002). This final rule involves the safe loading
capacity and required amount of flotation material for certain
recreational boats, which concerns equipping of vessels, as well as
equipment and vessel operation safety standards. This rule supports the
Coast Guard's maritime safety mission. A Record of Environmental
Consideration (REC) supporting this determination is available in the
docket as discussed in the ADDRESSES section of this rule.

List of Subjects in 33 CFR Part 183

    Marine safety.

0
For the reasons discussed in the preamble, the interim rule amending 33
CFR part 183 that was published at 82 FR 16512 on April 5, 2017, is
adopted as a final rule without change.

    Dated: October 23, 2017.
Jennifer F. Williams,
Captain, U.S. Coast Guard, Director of Inspections and Compliance.
[FR Doc. 2017-23384 Filed 10-26-17; 8:45 am]
 BILLING CODE 9110-04-P


[Federal Register Volume 76, Number 121 (Thursday, June 23, 2011)]
[Proposed Rules]
[Pages 36890-36891]
[FR Doc No: 2011-15709]

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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No. FAA-2011-0628]

Clarification of Prior Interpretations of the Seat Belt and
Seating Requirements for General Aviation Flights

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed clarification of prior interpretations.

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

SUMMARY: This action proposes to clarify prior interpretations of the
seat belt and seating requirements of 14 CFR 91.107(a)(3). These prior
interpretations state that the shared use of a single restraint may be
permissible. The proposed clarification states that the use of a seat
belt and/or seat by more than one occupant is appropriate only if: The
seat belt is approved and rated for such use; the structural strength
requirements for the seat are not exceeded; and the seat usage conforms
with the limitations contained in the approved portion of the Airplane
Flight Manual. The proposed clarification also emphasizes that the
proper restraint method for children during operations conducted under
part 91 relies on the good judgment of the pilot, who should be
intimately aware of the capabilities and structural requirements of the
aircraft that he or she is operating.

DATES: Comments must be received on or before August 22, 2011.

ADDRESSES: You may send comments identified by docket number FAA-2011-
0628 using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your
comments electronically.
     Mail: Send Comments to Docket Operations, M-30; U.S.
Department of Transportation, 1200 New Jersey Avenue, SE., West
Building Ground Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery: Take comments to Docket Operations in Room
W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue,
SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
     Fax:<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Alex Zektser, Attorney, Regulations
Division, Office of Chief Counsel, Federal Aviation Administration, 800
Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-
3073; email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites interested persons to submit written comments,
data, or views concerning this proposal. The most helpful comments
reference a specific portion of the proposal, explain the reason for
any recommended change, and include supporting data. To ensure the
docket does not contain duplicate comments, please send only one copy
of written comments, or if you are filing comments electronically,
please submit your comments only one time.
    The FAA will file in the docket all comments received, as well as a
report summarizing each substantive public contact with FAA personnel
concerning this proposal. Before acting on this proposal, the FAA will
consider all comments received on or before the closing date for
comments and any late-filed comments if it is possible to do so without
incurring expense or delay. The FAA may change this proposal in light
of comments received.

Availability of This Proposed Clarification of Prior Interpretations

    You can get an electronic copy using the Internet by--
    (1) Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    (2) Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/; or
    (3) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.

You can also get a copy by sending a request to the Federal Aviation
Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue,
SW., Washington, DC 20591, or by calling<PHONE_NUMBER>. Make sure to
identify the docket number or notice number of this proposal.

Background

    On March 22, 2009, a Pilatus PC-12/45 descended and impacted the
ground near the approach end of a runway at Bert Mooney Airport in
Butte, Montana. After investigating this incident, the National
Transportation Safety Board (NTSB) determined the following.
    At the time of the impact, the Pilatus PC-12/45 airplane was
operating as a personal flight under the provisions of 14 CFR part 91.
The pilot and the 13 airplane passengers were killed, and the airplane
was destroyed by impact forces and the postcrash fire. Among the 13
passengers were six adults and seven children. Because the flight was a
single-pilot operation, eight seats in the cabin and one seat in the
cockpit were available to the 13 passengers. Thus, the number of
passengers exceeded the number of available seats. The NTSB was unable
to determine the original seating position for most of the occupants,
but the bodies of four children, ages 3 to 9 years, were found farthest
from the impact site, indicating that these children were likely thrown
from the airplane because they were unrestrained or improperly
restrained. The NTSB noted that if the accident had been less severe
and the impact had been survivable, any unrestrained occupant or
occupants sharing a single restraint system would have been at a much
greater risk of injury or death.
    As a result of the March 22, 2009 incident described above, the
NTSB has requested that the FAA withdraw its prior interpretations of
14 CFR 91.107(a)(3), which permit the shared use of a single restraint
system.

Discussion of the Proposal

    In response to the NTSB's request, the FAA proposes to clarify its
prior interpretations of 14 CFR 91.107(a)(3) as follows.
    For part 91 operations, section 91.107(a)(3) requires that ``each
person on board a U.S. registered civil aircraft * * * must occupy an
approved seat or berth with a safety belt and, if installed, shoulder
harness, properly secured about him or her during movement on the
surface, takeoff, and landing.'' Children under the age of two may be
held by an adult who is occupying an approved seat or berth and no
restraining device for the child is used. In contrast, for commercial
operations under part 121, section 121.311 requires that each person
``occupy an approved seat or berth with a separate safety belt properly
secured about him.''
    When Sec.  121.311 and Sec.  91.107 (previously Sec.  91.14) were
first promulgated in 1971, the FAA clarified that the separate use
provision for safety belts under part 121 was not intended to apply to
part 91 operations. Rather, part 91 ``requires only that each person on
board occupy a seat or berth with a safety belt properly secured about
him.'' 36 FR 12511 (July 1, 1971). The FAA has previously interpreted
this provision as not requiring separate use

of safety belts. See Legal Interpretation 1990-14. At the time, this
allowance was permissible because seat belts were generally rated in
terms of strength and some were rated for more than one occupant to
accommodate side-by-side seating arrangements (i.e., bench seats) in
certain aircraft that are commonly used in operations conducted under
part 91. Thus, use of a seat belt and seat by more than one occupant
may have been appropriate only if: (1) The belt was approved and rated
for such use; (2) the structural strength requirements for the seat
were not exceeded; and (3) the seat usage conformed with the
limitations contained in the approved portion of the Airplane Flight
Manual (14 CFR Sec.  23.1581(j)). See 36 FR 12511; see also 14 CFR
23.562, 23.785; Legal Interpretation 1990-14; Legal Interpretation to
Mr. C.J. Leonard from Hays Hettinger, Associate Counsel (July 26,
1966). Under the FAA's proposed clarification, seating arrangements
that do not comply with the above conditions would not be able to use
the FAA's prior interpretations of Sec.  91.107(a)(3) to justify the
shared use of a single restraint system.
    The FAA also emphasizes that although Sec.  91.107(a)(3) and Sec.
91.205(b)(13), as previously interpreted by the agency, may allow for
shared use of a single restraint in certain situations, whether a child
should be held, or placed under a safety belt, or allowed to share a
single restraint or seat with another occupant during part 91
operations, is a matter of prudent operating practice. The FAA has
strongly advocated, and continues to advocate, the use of child
restraints such as child safety seats for children who are within the
weight restriction of the restraint. See 57 FR 42662, 42664 (Sept. 15,
1992) (allowing the use of child restraint systems in operations
conducted under parts 91, 121, 125, 135, and recognizing that the ``use
of child restraints in an aircraft will provide a level of safety
greater than that which would be provided if the young children were
held in the arms of adults or if safety belts alone were used''); 70 FR
50902, 50903 (Aug. 26, 2005) (allowing use of child restraint systems
that are approved by the FAA); 71 FR 40003, 40005 (July 14, 2006)
(allowing use of more types of child restraint systems). The FAA
recognizes that properly restraining children on aircraft is difficult
because there is a large variance in muscle development, height,
weight, and upper body strength. Thus, good judgment of the pilot, who
should be intimately aware of the capabilities and structural
requirements of the aircraft he or she is operating, is critical in
determining the proper method of restraint for children during
operations conducted under part 91.

    Issued in Washington, DC, on June 17, 2011.
Rebecca B. MacPherson,
Assistant Chief Counsel for Regulations, AGC-200.
[FR Doc. 2011-15709 Filed 6-22-11; 8:45 am]
BILLING CODE 4910-13-P


This document represents the best judgment of the EPA staff conducting analyses to support the Phase II Section 316( b) rule at this time. It does not represent the final position of the Administrator or EPA on this rulemaking. EPA reserves the right to change or amend any of the statements within this document up until the time that the EPA Administrator takes final action on this rule.

APPENDIX 3: TABLES 1 4 Table 1. Facility estimates of annual impingement ( numbers of organisms) at the Pittsburg facility.

Year Chinook salmon Delta smelt Green sturgeon Longfin smelt Sacramento splittail Starry flounder Steelhead Striped bass Threadfin shad Unidentified Yellowfin goby 1978 1979 808 14,107 0 137,261 8,732 11,856 0 111,299 88,865 12,278 31,519 Avg. 1987

1990 106 283 0 12,677 212 NA 0 NA NA NA NA Mean 457 7,195 0 74,969 4,472 11,856 0 111,299 88,865 12,278 31,519 Minimum 106 283 0 12,677 212 11,856 0 111,299 88,865 12,278 31,519 Maximum 808 14,107 0 137,261 8,732 11,856 0 111,299 88,865 12,278 31,519 SD 496 9,775 0 88,094 6,025 NA 0 NA NA NA NA Total 914 14,390 0 149,938 8,944 11,856 0 111,299 88,865 12,278 31,519 Table 2. Facility estimates of annual entrainment ( numbers of organisms) at the Pittsburg facility.

Year American shad Chinook salmon Cyprinidae Delta smelt Gobiidae Green sturgeon Longfin smelt Northern anchovy Pacific herring 1978 1979 170,000 23,598 30,000 65,839,484 4,070,000 0 190,229 5,200,000 22,110,000 Avg. 1987 1990 NA 0 NA 1,680,187 NA 0 232,641 NA NA Mean 170,000 11,799 30,000 33,759,836 4,070,000 0 211,435 5,200,000 22,110,000 Minimum 170,000 0 30,000 1,680,187 4,070,000 0 190,229 5,200,000 22,110,000 Maximum 170,000 23,598 30,000 65,839,484 4,070,000 0 232,641 5,200,000 22,110,000 SD NA 16,686 NA 45,367,474 NA 0 29,990 NA NA Total 170,000 23,598 30,000 67,519,671 4,070,000 0 422,870 5,200,000 22,110,000 This document represents the best judgment of the EPA staff conducting analyses to support the Phase II Section 316( b) rule at this time. It does not represent the final position of the Administrator or EPA on this rulemaking. EPA reserves the right to change or amend any of the statements within this document up until the time that the EPA Administrator takes final action on this rule.

Table 2. Facility estimates of annual entrainment ( numbers of organisms) at the Pittsburg facility ( cont.).

Year Prickly sculpin Sacramento splittail Starry flounder Steelhead Striped bass Threadfin shad Unidentified Yellowfin goby 1978 1979 29,610,000 155,289 0 0 284,370,000 670,000 66,811,113 6,070,000 Avg. 1987 1990 NA 336,037 NA 0 NA NA NA NA Mean 29,610,000 245,663 0 0 284,370,000 670,000 66,811,113 6,070,000 Minimum 29,610,000 155,289 0 0 284,370,000 670,000 66,811,113 6,070,000 Maximum 29,610,000 336,037 0 0 284,370,000 670,000 66,811,113 6,070,000 SD NA 127,808 NA 0 NA NA NA NA Total 29,610,000 491,326 0 0 284,370,000 670,000 66,811,113 6,070,000 Table 3. Facility estimates of annual entrainment ( numbers of organisms) at the Contra Costa facility.

Year American shad Bigscale logperch Catfish family Chinook salmon Delta smelt Gobiidae Green sturgeon Hitch Longfin smelt Northern anchovy Pacific herring Prickly sculpin 1978 1979 75,000 295,000 80,000 10,318 21,755,741 230,000 0 110,000 0 31,400 170,000 24,800,000 Avg. 1987 1990 NA NA NA 0 1,565,933 NA 0 NA 71,179 NA NA NA Mean 75,000 295,000 80,000 5,159 11,660,837 230,000 0 110,000 35,590 31,400 170,000 24,800,000 Minimum 75,000 295,000 80,000 0 1,565,933 230,000 0 110,000 0 31,400 170,000 24,800,000 Maximum 75,000 295,000 80,000 10,318 21,755,741 230,000 0 110,000 71,179 31,400 170,000 24,800,000 SD NA NA NA 7,296 14,276,350 NA 0 NA 50,331 NA NA NA Total 75,000 295,000 80,000 10,318 23,321,674 230,000 0 110,000 71,179 31,400 170,000 24,800,000 Table 3. Facility estimates of annual entrainment ( numbers of organisms) at the Contra Costa facility ( cont.).

Year Sacramento splittail Starry flounder Steelhead Striped bass Sunfish family Threadfin shad Unidentified White catfish Yellowfin goby 1978 1979 189,659 630,000 0 81,000,000 240,000 17,660,000 27,543,623 440,000 6,170,000 Avg. 1987 1990 94,905 NA 0 NA NA NA NA NA NA Mean 142,282 630,000 0 81,000,000 240,000 17,660,000 27,543,623 440,000 6,170,000 Minimum 94,905 630,000 0 81,000,000 240,000 17,660,000 27,543,623 440,000 6,170,000 Maximum 189,659 630,000 0 81,000,000 240,000 17,660,000 27,543,623 440,000 6,170,000 SD 67,001 NA 0 NA NA NA NA NA NA Total 284,564 630,000 0 81,000,000 240,000 17,660,000 27,543,623 440,000 6,170,000 This document represents the best judgment of the EPA staff conducting analyses to support the Phase II Section 316( b) rule at this time. It does not represent the final position of the Administrator or EPA on this rulemaking. EPA reserves the right to change or amend any of the statements within this document up until the time that the EPA Administrator takes final action on this rule.

Table 4. Facility estimates of annual impingement ( numbers of organisms) at the Contra Costa facility.

Year American shad Chinook salmon Delta smelt Green sturgeon Longfin smelt Sacramento splittail Steelhead Striped bass Threadfin shad Unidentified White catfish Yellowfin goby 1978 1979 19,602 1,083 8,253 0 19,475 12,455 38 136,149 107,228 9,376 5,868 14,830 Avg. 1987 1990 NA 0 942 0 336 889 0 NA NA NA NA NA Mean 19,602 542 4,598 0 9,906 6,672 19 136,149 107,228 9,376 5,868 14,830 Minimum 19,602 0 942 0 336 889 0 136,149 107,228 9,376 5,868 14,830 Maximum 19,602 1,083 8,253 0 19,475 12,455 38 136,149 107,228 9,376 5,868 14,830 SD NA 766 5,170 0 13,533 8,178 27 NA NA NA NA NA Total 19,602 1,083 9,195 0 19,811 13,344 38 136,149 107,228 9,376 5,868 14,830