Coast Guard brings U.S. inland rules into line with ColRegsOct 3, 2014 02:35 PM
On July 2, the Coast Guard promulgated a final rule amending the U.S. Inland Navigation Rules, commonly known as the Inland Rules of the Road, and the related annexes. The amendments, which were first announced in a 2012 proposed rule, went into effect Aug. 1.
In 1980, Congress enacted the Inland Navigation Rules Act, establishing the collision avoidance rules applicable upon the nation’s “inland waters” and to U.S. vessels on the Canadian side of the Great Lakes when not in conflict with Canadian law. In 2010, the Inland Rules were transferred from the U.S. Code, which codifies statutes enacted by Congress and signed into law by the president, to the Code of Federal Regulations (CFR), which collects regulations promulgated by federal agencies. The move was authorized by Congress in the Coast Guard and Maritime Transportation Act of 2004 (CGMTA). The Inland Rules regulations were published in 33 CFR Part 83, which, along with 33 CFR Parts 84 through 88, now comprise the complete domestic inland navigation rules. The 2010 move did not result in any substantive changes to the Inland Rules, nor did it affect the 1972 International Regulations for Preventing Collisions at Sea (ColRegs), which apply outside of Inland Rules waters.
The 2014 amendments mark the first time the Coast Guard has exercised its rulemaking authority since it transferred the Inland Rules to the CFR in 2010. Its announced purposes in the 2014 amendments were twofold. First, it sought to harmonize the U.S. Inland Rules with ColRegs, as recently amended, and to align its regulations with President Obama’s policy on preemption. Second, it exercised its discretionary authority to implement selected recommendations by the U.S. Navigation Safety Advisory Council (NAVSAC). At the same time, it took the opportunity to make several technical changes and formatting amendments to clarify cross-references in the rules.
The 2014 amendments address a source of potential confusion created by the differing ways the ColRegs and the Code of Federal Regulations use the terms “part,” “subpart” and “section.” Under the ColRegs nomenclature, the rules are organized in five “parts,” labeled Part A through Part E. Some of those “parts” are further broken down into “sections” and “subparts.” By contrast, the Inland Rules are now codified in 33 CFR Part 83. Part 83 is further broken down into five “subparts,” comprising 38 “sections,” each of which includes a “rule” that corresponds to the analogous rule in ColRegs. As originally promulgated in 2010, the regulations did not always make it clear which nomenclature was being used when internal cross-references referred to rules in “this part” or “this subpart.” The Coast Guard addressed this source of confusion by supplementing the cross- references with the specific CFR section and rule numbers.
Under Rule 1(b) of the ColRegs, countries that are party to that international treaty are authorized to enact “special rules” for roadsteads, harbors, rivers, lakes or inland waterways connected with the high seas and navigable by seagoing vessels. Congress drew on that authority when it enacted the Inland Navigation Rules Act in 1980. ColRegs Rule 1(b) — and to some extent Section 303 of the CGMTA — require, however, that any special rules for inland waters conform as closely as possible to the ColRegs. The requirement to harmonize the Inland Rules with the ColRegs (and, by logical extension, with the Canadian rules for the Great Lakes) was designed to minimize the risk of rule confusion or misapplication by mariners who must operate under both sets of rules. Any change to the Inland Rules that violates the consistency requirement would be subject to challenge as contrary to the 2004 CGMTA, which expressly reinforces the ColRegs Rule 1(b) consistency requirement.
Following the prescribed treaty amendment processes presided over by the International Maritime Organization (IMO), the ColRegs were amended in 2001 and 2007, thus creating an inconsistency between the ColRegs and the Inland Rules. Before the Inland Rules were transferred to the CFR, only Congress could amend the Inland Rules to conform to the new ColRegs rules. That authority now lies with the Coast Guard.
The Coast Guard’s final rule identifies seven ColRegs amendments that required conforming amendments to the Inland Rules. An amendment to Rule 8(a) adds a requirement that any collision avoidance maneuvers must be taken in accordance with Rules 4 through 19. It recognizes a new class of vessels called wing-in-ground craft and establishes operational and lighting requirements for the class. Wing-in-ground is a multimodal craft that, in its main operational mode, flies in close proximity to the surface by utilizing surface-effect action.
A third change eliminates the requirement for vessels less than 20 meters, or about 66 feet, to carry a bell. The sound signal requirement is modified for those vessels when in restricted visibility. Another amendment changes the lighting requirements for high-speed vessels. Radiotelegraph and radiotelephone alarm equipment are eliminated from the list of approved distress calling methods; the SOS signal may still be transmitted by any means. Added to the list are digital selective calling, Inmarsat and other satellite service providers. Finally, the lighting requirements are changed in Rule 24 for objects being towed and partially submerged vessels.
The Coast Guard’s 2014 rule amendments adopt a recommendation from NAVSAC to give sailing vessels less than 7 meters, or about 23 feet, and vessels under oars the option of displaying a single all-round white light in lieu of the lights otherwise prescribed by the rules. The amendments also accepted in part NAVSAC’s recommendation to relocate all of the Annex V Pilot Rules to the main body of the Inland Rules. Required light displays for moored barges and dredge pipelines were moved from the Pilot Rules to Inland Rules 30 and 27 respectively, without any substantive change. However, the special lights for law enforcement vessels and public safety activities were kept in the Pilot Rules.
The Coast Guard ultimately rejected a contentious NAVSAC recommendation to require all vessels greater than 16 feet, rather than only self-propelled vessels 12 meters or more in length under the current rules, to carry a copy of the Inland Rules. Upon further reflection, it rejected NAVSAC’s recommendation to add a requirement for operators to make proper use of “other electronic” equipment in Rule 7(b).
If the recommendation had been accepted, Inland Rule 7(b), which addresses “risk of collision,” would have required that “proper use shall be made of radar and other electronic equipment if fitted and operational, including long-range scanning to obtain early warning of risk of collision and radar plotting or equivalent systematic observation of detected objects.”
After citing, among other reasons, the fact that such a change would be inconsistent with the analogous ColRegs rule, the Coast Guard announced its “guiding principle” to align the Inland Rules with the ColRegs as much as possible. The Coast Guard might have also mentioned that the U.S. has a treaty obligation under ColRegs Rule 1(b) to ensure close alignment.
The Coast Guard so far has declined to adopt NAVSAC’s recommendation regarding the treatment of unmanned marine vehicles, which are already widely used in the government and commercial sectors. Although NAVSAC reportedly expressed some doubt as to the classification of unmanned marine vehicles as “vessels” under the present definition in Rule 3(a), it nevertheless proposed that the Coast Guard sponsor an amendment to the definition of a “vessel restricted in her ability to maneuver” in Rule 3(g) to add “a self-propelled vessel while unmanned and operating autonomously.” A second recommendation proposed to amend Rule 5 to exclude unmanned vehicles from the lookout requirement. In response to comments concerning the treatment of unmanned vehicles, the Coast Guard’s 2014 final rule explained that it has chosen to defer to the international community — presumably through the IMO — on questions regarding application of the collision avoidance rules to such vehicles.
One comment in the final rule raises a recurring question regarding the “pecking order” in Rule 18. The rule itself does not establish precedence between a vessel restricted in its ability to maneuver (RAM) and a vessel not under command (NUC). In 1995, NAVSAC examined the issue and concluded that neither class of vessel is required to keep out of the way of the other. In its 2014 final rule, however, the Coast Guard stated that vessels not under command “have the highest precedence, and all other vessels should use caution when operating in their vicinity.” It is doubtful, however, that the Coast Guard thereby meant to suggest that a vessel RAM has a duty to keep out of the way of a vessel NUC when the rule itself is silent on the issue.
When the Coast Guard transferred the Inland Rules to the CFR in 2010, its “federalism” analysis that accompanied the migration rule concluded that the transfer did “not have implications for federalism.” The 2014 amendments clarify that statement and better align the Coast Guard’s position with President Obama’s May 2009 memorandum on federal agency pre-emption. To accomplish that, Rule 1(a) of the Inland Rules now adds: “The regulations in this subchapter (subchapter E, 33 CFR parts 83 through 90) have pre-emptive effect over state and local regulation within the same field.” In explaining the pre-emptive effect of the Inland Rules, the Coast Guard observed that, in enacting 33 U.S.C. § 2071, “Congress intended Coast Guard regulations to be exclusive within this field, meaning that states and local governments are pre-empted from regulating within the field of inland navigation rules.”
Craig H. Allen Sr. is the Judson Falknor professor of law and of marine affairs at the University of Washington. He is the author of “Farwell’s Rules of the Nautical Road” (eighth edition 2005) and “International Law for Seagoing Officers” (sixth edition 2014), both published by U.S. Naval Institute Press.