On May 17, the U.S. Inland Navigation Rules, commonly known as the Inland Rules of the Road, were officially transferred from the U.S. Code (USC), 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 — in this case, the U.S. Coast Guard.
The move was authorized by Congress in the Coast Guard and Maritime Transportation Act of 2004 (CGMTA). Congress further provided that the statutory Inland Rules currently in 33 USC §§ 2001-2038 are repealed as of the date the new regulations take effect.
The new regulations that replace the statutes will be published in 33 CFR part 83, immediately before the related annexes on lights and signals, the pilot rules and the interpretive rules. Mariners will discover several “conforming” amendments to the Inland Rules when they appear in the CFR, such as subparagraphs and internal cross-references that have been renumbered. However, the substance of the rules was not changed. The change does not affect the statutory section setting out penalties for violating the Inland Rules (33 USC § 2072). Nor does it affect the 1972 International Regulations for Preventing Collisions at Sea (ColRegs), which were implemented by Congress in the International Navigation Rules Act of 1977.
Although the move was solely an administrative matter and did not result in any substantive changes to the Inland Rules, this development will have important consequences for mariners and maritime training centers in the coming years. First, future updates to the Inland Rules, which apply upon the inland waters of the United States and to U.S. vessels on the Canadian side of the Great Lakes when not in conflict with Canadian law, will be accomplished through rulemaking rather than legislation. Federal rulemaking is governed by the Administrative Procedure Act (APA), which generally requires that an agency provide public notice of any new regulations or changes to or repeals of existing regulations, and that the agency provide the public an opportunity to comment on the changes before they are adopted. Mariners and others will therefore have a greater opportunity to participate in future rule changes initiated by the government and to petition the Coast Guard directly (rather than Congress) for amendments to the rules (see 33 CFR § 1.05-20).
The new approach is not without risk. Under Rule 1(b) of the ColRegs, countries that are party to that international convention 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. To the extent that the Inland Rules might be easier (even if not quicker) to amend now that they are regulations rather than statutes, some risk is created that in the coming years the Inland Rules might depart even further from the 1972 ColRegs than they do now. That would exacerbate the risk of rule confusion, misunderstanding or misapplication by mariners who must operate under both sets of rules.
An additional drawback to this development is that some courts (perhaps even some mariners) might be tempted to give less respect to rules set out in agency regulations than they would accord to statutes enacted by Congress. Agency regulations are also subject to certain procedural and substantive challenges under the APA, which could be used to inject doubt into the effect of the rules and any amendments. Interestingly, one possible ground for challenging any new regulation is in section 303 of the 2004 CGMTA statute authorizing the Coast Guard to promulgate regulations, which expressly reinforces the ColRegs consistency requirement.
The legal status of the new regulations might also be undermined by a somewhat surprising provision in the Coast Guard’s “federalism” analysis that accompanied the migration rule. Federalism statements are required by a presidential executive order, which directs the agency to determine whether the new regulation will have implications for federalism. Among other things, a regulation has implications for federalism if it will preempt state law. Although the Coast Guard concluded that the rule transferring the Inland Rules to the CFR “does not have implications for federalism,” that should not be read to suggest that any conflicting state navigation rules would not be preempted. Just as the statutory version of the Inland Rules preempted any conflicting state laws on waters where those rules apply, the regulatory navigation rules will have a similar effect.
Two valuable information sources might also be in jeopardy as a result of the move. First, it is unclear at this point whether the major legal publishing services will continue to collect court decisions construing and applying the Inland Rules. At present, services like West (a Thomson Reuters business) collect and publish such decisions in the U.S. Code Annotated compilation for the statutes in 33 USC §§ 2001 (Inland Rule 1) – 2038 (Inland Rule 38). Those statutes are now repealed and replaced by regulations. Regrettably, legal publishing services generally do not collect and publish annotations for agency regulations. As a result, our understanding of the Inland Rules could suffer a serious setback if the annotations, which currently run more than 300 pages in the U.S. Code Annotated, are discontinued.
There is also a risk that the legislative history of the 1980 Inland Navigation Rules Act will be forgotten under the new regulatory scheme. When Congress enacted the 1980 Inland Rules, the House and Senate carefully explained in committee reports their respective understandings regarding the rules and their reasons for deviating from the ColRegs. When researchers analyze agency regulations, they typically do not think to consult the legislative history of repealed statutes. That would be a mistake in this case. Those seeking to understand the Inland Rules in the coming years, whether mariners, the Coast Guard, maritime training centers or the courts, must remember that behind the new regulations lies the 1980 Inland Navigation Rules Act, and behind that Act lie some very informative committee reports that explain the intent of Congress regarding the Inland Rules.
The decision of Congress to move the U.S. Inland Rules from the U.S. Code to the CFR is to be commended. The change brings needed adaptability and flexibility to this important rule set and will facilitate greater public participation in any future revisions. Although there is some risk that rulemaking authority could be over-used, to the detriment of consistency with the ColRegs (and with the Canadian rules for the Great Lakes), meticulous attention to the ColRegs Article 1(b) mandate by the Coast Guard and vigilance by the public in their comments on proposed rule changes should minimize that risk. Indeed, there are indications that the Coast Guard might in the near future initiate rulemaking to implement several pending resolutions of the U.S. Navigation Safety Advisory Council, with the goal of bringing the Inland Rules into closer alignment with the updated ColRegs. Hopefully, those amendments will not take as long to wend their way through the Coast Guard’s rulemaking process, as did the 2010 rule implementing the 2004 CGMTA authorization to migrate the rules.
Craig H. Allen Sr. is the Judson Falknor Professor of Law and Marine Affairs at the University of Washington. He is also the author of Farwell’s Rules of the Nautical Road (8th edition 2005).