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The purpose of this rulemaking is to harmonize existing domestic law with current international law because Coast Guard regulations relating to inland navigation rules are inconsistent with the international standards found in the Convention on the International Regulations for Preventing Collisions at Sea (COLREGS), to which the United States is a signatory. In addition to the alignment with international standards, the Navigation Safety Advisory Council (NAVSAC) recommended several changes to the regulations that would simplify the inland navigation rules and change equipment requirements for certain vessels. The Coast Guard has initiated this rulemaking under the authority of the Coast Guard and Maritime Transportation Act of 2004 (Pub. L. 108-293) and the Department of Homeland Security Delegation 0170.1, Delegation to the Commandant of the Coast Guard.
In 1972, the International Maritime Organization (IMO) formalized the COLREGS, or international rules. The United States ratified this treaty and adopted the COLREGS in the International Navigation Rules Act of 1977. Ratification of this treaty made all U.S. vessels subject to the COLREGS while operating on international waters. The corresponding rules for inland waters, or inland navigation rules, did not go into effect until Congress enacted the Inland Navigational Rules Act of 1980. The inland navigation rules and the COLREGS are very similar in both content and format.
The IMO has made several amendments to the COLREGS since they were promulgated in 1972. The United States has adopted these amendments through statute until the two most recent IMO amendments in 2001 and 2007. Incorporation of these IMO amendments is one of the purposes of this Notice of Proposed Rulemaking (NPRM).
In 2004, Congress passed the Coast Guard and Maritime Transportation Act of 2004, which, in effect, gave the Secretary of Homeland Security (“the Secretary”) the authority to issue inland navigation regulations. The Secretary further delegated the authority to develop and enforce navigation safety regulations to the Commandant of the Coast Guard through Department of Homeland Security Delegation 0170.1, “Delegation to the Commandant of the Coast Guard.”
Through the most recent regulatory change in 2010, the Coast Guard used the authority granted by Congress and delegated by the Secretary to move the inland navigation rules from the United States Code (U.S.C.) to 33 CFR part 83. 75 FR 19544. Regulations in 33 CFR part 83, along with regulations in 33 CFR parts 84 through 88, now comprise the complete domestic inland navigation rules. Movement to the CFR in 2010 effectively ended statutory codification of the inland rules of the road.
Using this authority, the Coast Guard proposes to amend 33 CFR part 83, along with 33 CFR parts 84 through 88, to align U.S. inland navigation rules with the COLREGS as much as practicable and to incorporate other NAVSAC recommendations and Coast Guard changes.
This NPRM proposes many changes to the regulations in 33 CFR parts 83, 84, 85, 86, 87, and 88 that would preempt State and local law regarding inland navigation, make current regulations more consistent with international standards, and make other NAVSAC recommended changes, including mandating the use of other electronic equipment, such as AIS, if outfitted, and allowing certain small vessels to use an all-round white light in addition to the currently approved electric torch or lighted lantern. Many of these changes would reduce the regulatory burden on mariners. The proposed changes are described below.
On May 20, 2009, President Obama issued a memorandum entitled “Preemption” to the heads of executive agencies. The purpose of this memorandum was to ensure that “preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.” The memorandum also required agencies to include preemption provisions in the codified regulations when regulatory preambles discussed its intention to preempt State law through the regulation. Furthermore, it directed that these preemption provisions must be justified under the legal principles governing preemption, including those outlined in EO 13132 (this memorandum is available for viewing in the rulemaking docket by following the instructions under the “Public Participation and Request for Comments” section of this preamble).
In 33 U.S.C. 2071, Congress specifically granted to the Secretary the authority to “issue inland navigation regulations applicable to all vessels upon the inland waters of the United States and technical annexes that are as consistent as possible with the respective annexes to the International Regulations.” Because this authority is expressly granted by Congress to the Secretary, State and local laws are preempted by Federal law. Therefore, based on the President's 2009 memo and the preemption principles outlined in EO 13132, the Coast Guard proposes to add the following sentence to 33 CFR 83.01(a): “The regulations in this subchapter have preemptive effect over State or local regulation within the same field.”
Prior to 2010, the inland navigation rules were located in statute. The Coast Guard promulgated five annexes through regulation, to be read in conjunction with the inland navigation statute. These annexes correspond to COLREGS annexes. Because the inland navigation rules have become regulation, NAVSAC recommended that sections of Annex V be relocated to the
We propose to move these provisions without substantive change to the appropriate sections in part 83. Reorganizing the Annex II and Annex V provisions to be found in part 83 would ease compliance and simplify the study of the rules. As a result of moving the provisions of these annexes to part 83, paragraph (d) in section 83.26 must be removed and reserved. This paragraph speaks to the provisions of Annex II that have now been moved to part 83. Additionally, for clarity, the appropriate paragraphs of Rule 26 must be added to new paragraph (f) of section 83.26 in lieu of the more general “these Rules” currently found in the regulation.
Table 1 summarizes the movement of 33 CFR part 85, Annex II, and 33 CFR part 88, Annex V, provisions to 33 CFR part 83.
There would no longer be any provisions in part 85, Annex II, or part 88, Annex V, except for provisions reserving these parts for any future amendments that may require their use. To this end, the general purpose and applicability provisions of parts 85 and 88 would be reserved. This would be done by removing all regulations from this part and reserving the first sections only as a placeholder. Therefore, 33 CFR 85.1 would be redesignated as § 85.01, and § 85.01 would then be reserved, along with § 88.01.
In 2001 and 2007, the IMO adopted several amendments to the COLREGS through Resolution A.910(22) and Resolution A.1004(25), respectively. NAVSAC recommended that, in the interests of uniformity and simplification for mariners, and to continue encouraging compliance with the COLREGS, the Coast Guard should adopt these amendments in regulation. The amendments that NAVSAC recommended and the Coast Guard proposes are as follows:
1. The IMO incorporated the term “Wing-In-Ground (WIG) craft” into several sections of the COLREGS and added requirements applicable to this type of craft. The following sections in part 83 would be amended to add this term and/or its definition or add requirements applicable to WIG craft: §§ 83.03(a), 83.03(m), 83.18(f), 83.23(c), and 83.31. These additions specify how WIG craft should operate around other vessels, including when taking off, landing, and when in flight, as well as lighting requirements specific to WIG craft. Current WIG craft operations are limited to prototype testing, feasibility studies, and other limited activities. However, the specific construction, design, and operation of WIG craft pose unique risks that we are trying to address while also conforming to the IMO standard.
2. The IMO modified COLREGS sound signal equipment requirements for vessels based on size. One amendment removes the requirement for a bell on a vessel of 12 meters or more in length but less than 20 meters in length. The other amendment reduces the regulatory restrictions placed on the characteristics of whistles allowed for vessels of specific lengths. The Coast Guard would add the same language to §§ 83.33(a) and 83.35(i). We would also amend the existing language in part 86, subpart A. This language consists of amendments that IMO believes cater to smaller vessels since these amendments provide regulatory flexibility for sound signal requirements. We concur—by following IMO's example, we also would be decreasing the regulatory burden for small vessels by allowing sound options without negatively impacting navigation safety.
3. The IMO amended existing sections of COLREGS to incorporate new formulas and new standards. Sections 84.13(a), 84.13(b), 86.01(a), 86.01(c), 86.02(b) and the Table in 86.01 would be partially amended to align with the new COLREGS language. Sections 84.13(a) and 84.13(b) would be amended to account for the vertical separation of masthead lights on high-speed craft. These amendments incorporate new formulas to accommodate novel designs in the trim and resulting masthead placement of these specific types of crafts. By changing these formulas, the masthead light would be more visible, thereby increasing the safety of these vessels. In section 86.01 and 86.02, we would amend the frequency and range of audibility standards to relax the requirements for sound pressure levels and octave bands. We believe that the safety of vessels is not measurably impacted by the differing standards and that aligning domestic regulations with the international standard eases compliance.
4. The IMO amended COLREGS Rule 8, paragraph (a), which corresponds to § 83.08(a), and which generally governs actions taken to avoid collision, by adding the requirement that such actions “be taken in accordance with the Rules of this part.” The IMO added this language to make clear that any action to avoid collision should be taken in accordance with the relevant rules in the COLREGS, and to link Rule 8 with the other navigation rules. We propose to amend § 83.08(a) to include this revised language.
5. The IMO modified COLREGS distress signal requirements to update technologies in its list of acceptable equipment. Section 84.01(d), (l), and (m) would be amended to eliminate radiotelegraph or radiotelephones alarms as approved distress calls, with the exception of SOS, which may be transmitted via any means. Radiotelephones can still be used, but not the radiotelephone alarm function. There are no costs associated with removing the alarms as approved distress calls because this change does
The search and rescue manual reference in paragraph 3 has also been updated. There is no cost to the change in reference because there is no requirement to purchase the manual.
6. Rule 24 of the COLREGS provides lighting and shape requirements for partially submerged vessels or objects being towed, or a combination thereof. In review of our regulations, the lighting and shape requirements for towed combinations were omitted. We propose to add this language to match the COLREGS.
There would be no additional requirements on mariners imposed by the additions and amendments in 1 through 6 above. Instead, these sections would conform to the international standards and provide more options for vessel equipment compliance and increase the clarity of these requirements.
NAVSAC recommended a change to the existing inland navigation rules in which § 83.07(b) would be amended to add the words “and other electronic” following the word “radar.” The Coast Guard agrees. In 2003, we published a final rule mandating the use of Automatic Identification Systems (AIS) on a large number of seagoing vessels. The use of AIS is also a SOLAS requirement. Therefore, adding the words “and other electronic” equipment to this section would be consistent with the AIS final rule by requiring vessels that are otherwise required to have an AIS to use the system for collision avoidance in accordance with inland navigation rules. No additional equipment is required by vessels as a result of this change. Those vessels required by 33 CFR 164.46, or those electing to carry, an AIS are instructed to utilize this tool for collision avoidance purposes. This description would also allow for future development and use of technology that would meet Coast Guard requirements.
The National Boating Safety Advisory Committee (NBSAC) proposed several options to the Coast Guard to reduce the risk of vessel collisions. One of the options that NBSAC proposed was to enhance the visibility of smaller vessels and sailing vessels. NAVSAC agreed with the NBSAC proposal and recommended that the Coast Guard add the option of using an all-round white light as a means for vessels of less than 7 meters or vessels under oars to advertise their position and help prevent collisions. Therefore, in § 83.25(d)(1) and (2), we propose to add the following phrase as an option for lighting: “exhibit an all-round white light or.”
In current 33 CFR 83.26, which concerns lights on vessels engaged in fishing other than trawling, there are two contradictory paragraphs, both of which are labeled as paragraph (c). The second paragraph (c) is the correct version and would remain in this section. We propose to remove the contradictory paragraph (c), currently appearing first in the regulations, to avoid confusion or inability to choose the correct lighting and shapes.
In Rule 1, section 83.01, paragraph (b)(i), we propose to add the following after Regulations: “for Preventing Collisions at Sea, 1972, including annexes currently in force for the United States (“International Regulations”).” This language would clarify what international regulations we are referring to throughout the regulation.
Based on the movement of some provisions, addition of new terms, and for ease of reference in locating applicable rules, several proposed changes would involve re-numbering or correcting cites in 33 CFR parts 83 through 88.
Sections 83.03(n) through 83.03(r) and 83.23(d) through 83.23(e) would be re-lettered following the insertion of the WIG craft language. Section 83.35(j) and 83.35(k) would be re-lettered following the insertion of additional vessel applicability language.
Section 83.24(c) would be amended to reference the correct cite to (i) instead of (1). Paragraph (b) in § 83.08 would be amended to add “and/” after “course” in both instances so as to correspond to COLREGS language.
To correspond to COLREGS numbering, § 83.18(d) would be reserved, thereby requiring the current paragraph (d) to be re-lettered as (e). Sections 83.03(h), 83.26(g)(ii)(2), and 83.35(d) are also reserved to correspond to COLREGS which also necessitate changes in paragraph lettering.
Parts 84 through 88, collectively the annexes, would be re-numbered in their entirety to correspond to the COLREGS numbering system because all inland navigation rules have been moved into the CFR. Two of the annexes, parts 85 and 88, would be reserved for use at a later date because the provisions of these annexes would be moved to part 83. Citations to the applicable annexes would be added to the following for easy reference: §§ 83.22, 83.27, 83.32, 83.33, 83.34, 83.37, and 83.38.
In addition to the other non-substantive changes, numbers would be replaced with roman numerals, lists would begin with lowercase letters, headings would be removed, and terms in the definition sections would be italicized instead of using quotations to model the domestic format after the international format. The format changes are necessary to reduce confusion for the maritime community by making the domestic and international rules uniform. Additionally, the non-substantive changes would make for easy reference of the domestic and international rules because the numbering scheme would be identical to the extent practicable.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below, we summarize our analyses based on 14 of these statutes or executive orders.
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
As stated in section
Alternative 1—No Action. We rejected this alternative, as this alternative would ensure that the current differences between the domestic and international navigation rules continue, creating potential navigational errors and potential for mishaps, and would not be consistent with the Coast Guard's commitment to conform the inland navigation rules with the COLREGs as much as practicable. The proposed alternative incorporates regulations that are less stringent than the current regulations while maintaining the benefits of the current regulations.
Alternative 2—Incorporation of burden increasing NAVSAC recommendations. Alternative 2 would include all the changes in the proposed alternative and two additional changes recommended by NAVSAC. Those additional changes, which would increase the burden on the regulated community and expand the affected population, are as follows:
1. Lighting of gas pipelines (33 CFR 88.15). A 1991 NAVSAC resolution proposed lighting gas pipelines in a manner similar to that done with dredge pipelines as described in 33 CFR 88.15. However, the Department of Transportation's Pipeline and Hazardous Material Safety Administration has since published regulations affecting some of the gas pipelines that necessitated the original NAVSAC resolution. Additional study is now needed to determine if current regulations have effectively decreased the number of incidents and whether further Coast Guard regulatory action is required.
2. The requirement that vessels greater than 16 feet must carry the inland navigation rules booklet. This provision would expand the population of vessels that must carry a copy of the inland navigation rules from vessels 12 meters (approximately 39.37 feet) or more in length to vessels more than 16 feet long. The Coast Guard rejects this recommendation due to a lack of quantifiable benefits to justify a high regulatory burden on recreational vessels at this time.
Vessels affected by this proposed rule would be vessels traveling on inland waters of the United States. At this time, we anticipate a small additional cost for future WIG craft to install a light. We estimate that there would not be additional costs or burden from the other harmonizing or discretionary provisions. A benefit of the harmonizing provisions is complying with COLREGS and the Presidential memo,. Both harmonizing and discretionary provisions would also provide regulatory flexibility to certain vessels. Some of the discretionary changes may help to reduce risk of collision. A summary of the Regulatory Analysis is provided in Table 2.
This proposed rule would affect vessels on inland waters of the United States. Some of the provisions in this proposed rule would affect specific subgroups of these vessels. Population groups and subgroups affected by this proposed rule are listed in Table 3.
This proposed rule would modify various sections of 33 CFR parts 83 through 88 to align domestic regulations with COLREGS, as much as practicable, and to incorporate NAVSAC recommendations. In Table 4, we provide a summary of the impacts, grouped by provision type and then affected population. Please refer to the regulatory text for specific changes.
As stated in section
Most of the provisions harmonize the CFR with COLREGs by moving sections to different locations, renumbering, or reformatting.
A more detailed description of these changes is outlined in the following paragraphs. One other harmonizing change adds a preemption provision explaining that the codified regulation preempts state or local law within the same field. This provision complies with the Presidential memorandum and EO 13132, which requires executive agencies to ensure that its preemption statements have a sufficient legal basis and to make explicit in the codified regulation its intention to preempt State law, but does not change the compliance standards for vessels.
Given the existence of prototype testing and the possibility of one being successful, we estimate that there may be one new vessel operating on inland waters in any given year.
We then calculated cost to install the required light for WIG craft masthead light based on the growth rate (one vessel annually), multiplied by the cost of the light (one light required per vessel), and determined that this section of the proposed rule would provide a total undiscounted cost of $1,119.
Table 8 provides the breakdown of cost, both undiscounted and discounted (at 3 and 7 percent rates), over the 10-year period of analysis.
In order to estimate the cost savings from not installing bells, we took a high range cost and a low range cost to calculate the average retail price of a bell ($299) to represent potential costs incurred by the owner should the owner choose to purchase and install a bell.
Table 8 provides the breakdown of cost savings, both undiscounted and discounted (at 3 and 7 percent rates), over the 10-year period of analysis.
For whistles used on vessels of less than 75 meters in length, the acceptable range for frequencies would be expanded. This provision does allow for the purchase of whistles that sound in the newly expanded ranges. The required sound pressure levels for vessels of 20 meters or more in length would also be relaxed. Currently, whistles for these vessels need to project the appropriate sound pressure levels measured at multiple frequency ranges. Our proposed rule would require the whistle to obtain a single minimum sound pressure level, which is based on the vessel's length, and is measured at only one frequency range.
There would be no cost for this provision as this does not require the replacement of an existing whistle as those would still be within the proposed standards. Instead, purchasers of new whistles would have greater whistle options.
Other harmonizing changes to the CFR are non-substantive and simply align current regulations to match the formatting of COLREGS (refer to Table 4 for the summary of these non-substantive changes). Overall, we estimate that the harmonizing provisions of this proposed rule would have no cost to industry.
As noted above, there is a second category of changes being proposed by this NPRM, which recommendations from NAVSAC. These changes represent discretionary actions