03-29650. Allowing Alternatives to Incandescent Lights, and Establishing Standards for New Lights, in Private Aids to Navigation

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard removes the requirement to use only tungsten-incandescent-light sources for private aids to navigation (PATONs) and establishes more-specific performance standards for all lights in PATONs. These measures enable private industry and owners of PATONs to take advantage of recent changes in lighting technology—specifically allow owners of PATONs to use lanterns based on the technology of light-emitting diodes (LEDs), which may reduce the consumption of power and simplify the maintenance of PATONs. The more-specific performance standards will make the rules for PATONs equivalent to those for Federal aids to navigation.

DATES:

This final rule is effective March 8, 2004.

ADDRESSES:

Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2000-7466 and are available for inspection or copying at the Docket Management Facility, U.S. Department of Transportation, room PL-401, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call Dan Andrusiak, Office of Aids to Navigation, at Coast Guard Headquarters, telephone [phone]. If you have questions on viewing the docket, call Andrea M. Jenkins, Program Manager, Docket Operations, Department of Transportation, telephone [phone].

SUPPLEMENTARY INFORMATION:

Regulatory History

On October 4, 2000, the Coast Guard published a direct final rule (DFR) [65 FR 59124] under the same docket number as the one borne by this final rule: USCG-2000-7466. We published that rule as a DFR because we expected that the public would readily embrace it; however, we received an adverse comment. Because of this, we withdrew the DFR [66 FR 8 (January 2, 2001)] so our engineers could analyze and respond to the comment. Not only did they follow the commenter's advice to make performance standards for LEDs more specific; they also recommended to the Marine Safety Council (now the Marine Safety and Security Council), our policy-setting body, the standardizing of all rules related to lights used as private aids to navigation (PATONs).

On June 24, 2002, we published a notice of proposed rulemaking entitled Allowing Alternative Source to Incandescent Light in Private Aids to Navigation in the Federal Register (67 FR 42512). We received three letters commenting on the proposed rule. No public hearing was requested and none was held.

Background

The Marine Safety Council, as it then was, recommended this rulemaking to provide owners of PATONs with more options for selecting equipment. This rule may reduce lifecycle cost, reduce the consumption of power, and simplify the maintenance of PATONs by allowing the use of lighting technologies other than those based on tungsten-incandescent light sources.

Discussion of Comments and Changes

We received three comments on this rule as proposed. The first commenter stated support for allowing alternatives to incandescent lights in private aids to navigation, but opined that the rule was deficient since it would not require the owners of such lights to maintain them.

Our response: We agree that maintenance requirements are essential, but we disagree that PATON owners do not have a requirement to maintain them. Existing 33 CFR 66.01-20 requires that all classes of private aids to navigation be maintained in proper operating condition and § 66.01-45 makes it clear that only those authorized to maintain PATONs may do so.

To assist owners in maintaining PATONs, we have required manufacturers to provide each purchaser a data sheet that accompanies the PATON equipment at the time of sale with the following information: the recommended service life of the optic, light source, and batteries. They must also indicate a replacement interval to ensure that the equipment meets the minimum requirements in case of degradation of the light or lens.

The commenter also stated that replacement bulbs, particularly tungsten-filament ones, are very expensive and that because of this some owners might replace the specialty-type base of the original light with an Edison-screw-type base and use household bulbs.

Our response: This final rule requires each owner, under “application procedure,” to document his or her aid's make, model, advertised intensity, and lamp source. The Coast Guard will maintain this information in a database that will help Coast Guard inspectors verify that the proper equipment is installed.

The second commenter pointed out that, in addition to applying to private aids to navigation in 33 CFR part 66, the standards also apply to lights used on artificial islands and fixed structures regulated under 33 CFR part 67 by the requirements of 33 CFR 67.01-1(b). The commenter urged the Coast Guard to establish a luminous-intensity standard in eventual 33 CFR 66.01-11(a)(3) for any light required to have a nominal range of 5 nautical miles.

Our response: We agree that all requirements under 33 CFR part 67 regarding the light signals supersede the requirements under 33 CFR part 66. However, to be consistent with the operational ranges, we are adding requirements for a 5-nautical-mile light signal to part 66. We are also changing the intensity requirements to reflect minimum intensity, subject to change due to local environmental conditions, at the discretion of the District Commander.

The same commenter urged the Coast Guard to remove “90 percent visibility” standards from 33 CFR 67.20-5, 67.25-5(a), and 67.30-5(a), and rely on the provisions of 33 CFR 67.01-1(b) to invoke the luminous-intensity standard of eventual 33 CFR 66.01-11(a)(3).

Our response: Part 66 generally pertains to voluntary PATONs. Part 67 refers to PATONs required by statute or regulation for facilities that could pose a danger to navigation. This being so, we believe that a more stringent requirement is necessary. In addition, District Commanders generally require greater than the minimum intensities for PATON lights because of local environmental conditions; therefore, the standard of 90-percent visibility is a legitimate requirement for 33 CFR part 67.

The same commenter stated that the preamble to the proposed rule (67 FR 42513, 2nd column, 6th paragraph) implied that existing lights would not have to meet these new standards; however, rather than refer to existing lights, the proposed regulatory text for 33 CFR 66.01-12 referred to a “new application” for a private aid. This leaves uncertainty (and attendant liability) regarding applicability of 33 CFR 66.01-11 to those existing lights under 33 CFR parts both 66 and 67 that may be subject to the “new application.” For example, the existing regulations require the filing of an application for lights that are relocated (such as the obstruction lights on mobile offshore drilling units), or are subject to transfer of ownership in accordance with 33 CFR 66.01-55. The commenter urged the Coast Guard to clearly state that lights already in service can remain in service as long as they continue to meet the standards for luminosity and effective intensity in effect at the time they are placed in service.

Our response: If an owner must file a new application as a result of modifying, replacing, or installing a new light, his or her PATON must comply with the new standards. Changes in ownership or relocation of a moveable structure such as a mobile offshore drilling unit, while requiring a new application, would not require replacement of existing lighting equipment unless the environmental conditions of the new location demanded it.

The commenter stated that new 33 CFR 66.01-14(a)(4), which would require a manufacturer to provide a label indicating the date a light is placed in service, does not make sense.

Our response: We agree. After careful consideration, we modified the requirement so that the label indicates only the model and serial number of the lantern. The District Commander will maintain that information, details of the application, and the manufacturer's recommended replacement interval in a database accessible to Coast Guard inspectors.

The third commenter stated that 33 CFR 66.01-11 of the NPRM designates only three types of lights: 1-candela lights, 2-candela lights, and 10-candela lights. Lights of much higher candlepower are required for PATONs to attain the desired detection range.

Our response: We agree. We have changed the intensity requirements to reflect the minimum intensities required for given ranges. The District Commander will determine actual required intensity after considering local conditions including background lighting and visibility.

The commenter recommended deleting any references to “nominal range” and any correlating of intensity to such range.

We agree. We changed the term “nominal range” to “range.”

The commenter suggested that, to make the rules for PATONs equivalent to those for Federal aids to navigation, we should require at least 50% of the effective intensity within ± 4° of the horizontal plane for LED lights in alignment with current USCG in-house requirements for LED buoy lanterns (Specification G-SEC498A)—if not for all LED lights, then at least for LED lights greater than 10 candela.

Our response: We disagree. Federal aids to navigation currently have an approximate vertical divergence of ± 2° to 50% of effective intensity. This vertical divergence is adequate for PATONs. There is no need to impose stricter requirements on the public.

The commenter suggested that under 33 CFR 66.01-11(a) (1) we should add the words “* * * except range and sector lights”.

We agree. This final rule changes the requirements of §§ 66.01-11(a)(1) and 66.01-11(a)(2) to exclude directional lights.

The commenter stated that under 66.01-11(a)(2), given the limited vertical divergence of some LEDs, there may be no light emitted beyond the minimum angle of ± 2°. There should be least 50% of effective intensity within an angle of ± 2° of the horizontal plane and 10% to ± 4° of the horizontal plane required for all beacons. There should be 50% of effective intensity within an angle of ± 4° of the horizontal plane for all buoy lights, and all LED lights over 10 candela.

We disagree. Federal aids to navigation currently have an approximate vertical divergence of ± 2° to 50% of effective intensity. We feel that this is an adequate vertical divergence for PATONs and that stricter requirements on the public are unnecessary. In response to the commenter's request for vertical divergence of ± 4° at 10% of peak intensity, we feel that specifying the divergence at 50% of peak intensity is adequate; no additional breakdowns for divergence are necessary.

The commenter stated that under 33 CFR 66.01-11(a)(3), in keeping with the purpose stated in the proposed rule to “make the rules for PATONs equivalent to those for Federal aids to navigation”, we should require a minimum effective intensity for PATONs. This minimum should correspond to the existing Federal minimum of 9 candelas.

We disagree. We will not establish a minimum intensity of 9 candela, because this might nullify PATONs in the range of 1 to 2 nautical miles. Requiring lights that produce a minimum intensity of 9 candelas may require owners of PATONs to unnecessarily purchase hardware that exceeds the requirements for their site. This would create an unnecessary burden for these owners.

The commenter stated that, under 33 CFR 66.01-11(a)(6), there is a relationship among the initial intensity of a new light, the minimum intensity required by the proposed and existing regulations (33 CFR parts 67 and 149), and the recommended interval for replacement when a light's intensity degrades to a value below the minimal required intensity. The recommended service life of the light sources, or lens, will depend on the initial candela of a new light and the level of degradation the candela could suffer before it fell below the minimal required intensity.

Our response: A lantern must meet the minimum requirements of 33 CFR part 66 throughout its service life. The manufacturer must determine a recommended replacement interval based on degradation of the lens or light source.

The commenter stated that, under 33 CFR 66.01-1(a)(7), a 10-day-reserve battery capacity is seldom sufficient for proper operation of a solar power supply designed to operate year-round without a low-voltage disconnect. We should require the use of lanterns with a minimum recharge capacity that exceeds the current consumption of each LED during the month of least insolation at the site of the lantern.

Our response: Our major solar-powered lighthouses operate with an autonomy of 10 days, so we feel this reserve capacity is adequate for lanterns as well. A low-voltage disconnect helps preserve the battery if the lantern is housed in a sealed, self-contained power system. This rule requires the reconnect voltage to be high enough to prevent the light from short-cycling daily. We agree that power production for the site should exceed the load during the worst average month of insolation and are adding that requirement to § 66.01-11(a)(7).

Under 33 CFR 66.01-11(a)(7), the commenter recommended that we should require bird spikes (or some other bird-avoidance-apparatus) on all lights to prevent degrading the performance of both lenses and solar panels due to soiling by birds.

We disagree. Bird spikes should not be a requirement. Each manufacturer can determine whether its design encourages roosting of birds that could affect performance of the PATON and incorporate necessary means to discourage them, if necessary.

After careful consideration, we modified the requirement under 33 CFR 66.01-14 for the label to include only the model and serial number of the lantern. The District Commander will maintain that information, details of the application, and the manufacturer's recommended replacement interval in a database accessible by Coast Guard inspectors.

Regulatory Evaluation

This final rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget (OMB) has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

Cost of Rule

This final rule will impose minimal costs on manufacturers of PATONs. Costs will stem from the requirement that each PATON powered by an LED must bear information about the replacement interval of the light source. This information will be unique for many of the units sold each year, requiring manufacturers to calculate replacement intervals for about six models of PATONs so powered. Each model will have several possible replacement intervals depending on consumers' specifications. There is no market today for such PATONs, so it is impossible to know how many unique replacement intervals will be published. The cost estimate is thus based on an approximation, assuming that each manufacturer will calculate about ten different replacement intervals for an average of six different such PATONs in the first year. The range of costs for the ten international manufacturers of such PATONs could be as much as $16,500 for a total of 300 hours in the first year. The costs in following years are uncertain, because new manufacturers are likely to enter the market once this rule is enacted and significantly increase the number of such PATONs produced each year.

Manufacturers must also print model numbers and serial numbers labels on all PATONs. However, it is already industry practice to print this information on PATONs, so manufacturers are currently in compliance with Coast Guard requirements for labels. Therefore, we expect that these requirements will add no costs to the manufacture of either PATONs or labels.

Benefits of Rule

This final rule allows owners of PATONs to choose from not only tungsten bulbs, which are currently permitted, but also the new technology of LEDs. These consume less power and have a longer lifespan than the sources currently permitted. Purchasers of PATONs powered by LEDs are likely to reduce their electricity costs and spend less time maintaining their PATONs. Existing rules do not allow manufacturers to sell LEDs for use in PATONs.

Small Entities

Under the Regulatory Flexibility Act [5 U.S.C. 601-612], we have considered whether this final rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard conducted a survey of industry, and discovered that there are now two domestic manufacturers of tungsten-incandescent-lighting sources used for aids to navigation. Only one of them qualifies as small according to the standards of the Small Business Administration. This rule, however, allows the small company to continue selling tungsten-incandescent PATONs. Barring unforeseen changes in the market for PATONs, we do not expect that the legalization of PATONs powered by LEDs will have any significant impact on the sale of cheaper, and more widely available, tungsten-incandescent PATONs.

Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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 final rule so that they could better evaluate its effects on them and participate in the rulemaking.

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).

Collection of Information

This final rule calls for a new collection of information under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501-3520]. There is no current market for PATONs powered by LEDs, so there is no determination of how many distinct models of such PATONS will be produced with unique replacement intervals. In the year proceeding promulgation of this rule, three domestic manufacturers of such PATONs are likely to produce about six models of such PATONs. Each model will have about ten unique replacement intervals based on various combinations of light-source characteristics. On these assumptions, the annual paperwork burden will be around 90 hours. At $55 (the hourly rate for a non-Federal employee doing this work), the cost should be around $4950 in the year proceeding promulgation.

As required by 44 U.S.C. 3507(d), we submitted a copy of this rule to OMB for its review of the collection of information. OMB has approved the collection. The part numbers are 33 CFR parts 66 and 67; the corresponding approval number from OMB is Control Number 1625-0011, which expires on July 31, 2005.

You need not respond to a collection of information unless it displays a currently valid OMB control number.

Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this final rule under that Order and have determined that it does not have implications for federalism.

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 or more in any one year. Though this final rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

This final rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

Civil Justice Reform

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

Protection of Children

We have analyzed this final rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

Indian Tribal Governments

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.

Energy Effects

We have analyzed this final rule under Executive Order 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 Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

Environment

We have considered the environmental impact of this final rule and concluded that preparation of an Environmental Impact Statement or Environmental Assessment is not necessary. This rule has been thoroughly reviewed by the Coast Guard, and the undersigned has determined it to be categorically excluded, under Categorical Exclusion 34(e), from further environmental documentation. This determination accords with Section 2.B.2 and Figure 2-1 of NEPA implementing procedures, COMDTINST M16475.1D.

List of Subjects in 33 CFR Part 66

• Navigation (water)

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 66 as follows:

PART 66—PRIVATE AIDS TO NAVIGATION

1. Revise the citation of authority for part 66 to read as follows:

Authority: 14 U.S.C. 83, 84, 85; 43 U.S.C. 1333; Department of Homeland Security Delegation No. 0170.1.

2. In § 66.01-5, revise the introductory text and paragraphs (a) and (f) to read as follows:

§ 66.01-5

Application procedure.

To establish and maintain, discontinue, change, or transfer ownership of a private aid to navigation, you must apply to the Commander of the Coast Guard District in which the aid is or will be located. You can find application form CG-2554 at http://www.uscgboating.org/​safety/​aton/​aids.htm or you can request a paper copy by calling the Boating Safety Information line at [phone]. You must complete all parts of the form applicable to the aid concerned, and must forward the application to the District Commander. You must include the following information:

(a) The proposed position of the aid to navigation by two or more horizontal angles, bearings and distance from charted landmarks, or the latitude and longitude as determined by GPS or differential GPS. Attach a section of chart or sketch showing the proposed position.

* * * * *

(f) For lights: The color, characteristic, range, effective intensity, height above water, and description of illuminating apparatus. Attach a copy of the manufacturer's data sheet to the application.

* * * * *

3. Revise § 66.01-10 to read as follows:

§ 66.01-10

Characteristics.

The characteristics of a private aid to navigation must conform to those prescribed by the United States Aids to Navigation System set forth in subpart B of part 62 of this subchapter.

4. Add § 66.01-11 to read as follows:

§ 66.01-11

Lights.

(a) Except for range and sector lights, each light approved as a private aid to navigation must:

(1) Have at least the effective intensity required by this subpart omnidirectionally in the horizontal plane, except at the seams of its lens-mold.

(2) Have at least 50% of the effective intensity required by this subpart within ±2° of the horizontal plane.

(3) Have a minimum effective intensity of at least 1 candela for a range of 1 nautical mile, 3 candelas for one of 2 nautical miles, 10 candelas for one of 3 nautical miles, and 54 candelas for one of 5 nautical miles. The District Commander may change the requirements for minimum intensity to account for local environmental conditions. For a flashing light this intensity is determined by the following formula:

Ie=G/(0.2+t₂−t₁)

Where:

Ie = Effective intensity

G = The integral of the instantaneous intensity of the flashed light with respect to time

t₁ = Time in seconds at the beginning of the flash

t₂ = Time in seconds at the end of the flash

t₂−t₁ is greater than or equal to 0.2 seconds.

(4) Unless the light is a prefocused lantern, have a means of verifying that the source of the light is at the focal point of the lens.

(5) Emit a color within the angle of 50% effective intensity with color coordinates lying within the boundaries defined by the corner coordinates in Table 66.01-11(5) of this part when plotted on the Standard Observer Diagram of the International Commission on Illumination (CIE).

Table 66.01-11(5)—Coordinates of Chromaticity

Color	Coordinates of chromaticity
	x axis	y axis
White	0.500	0.382
	0.440	0.382
	0.285	0.264
	0.285	0.332
	0.453	0.440
	0.500	0.440
Green	0.305	0.689
	0.321	0.494
	0.228	0.351
	0.028	0.385
Red	0.735	0.265
	0.721	0.259
	0.645	0.335
	0.665	0.335
Yellow	0.618	0.382
	0.612	0.382
	0.555	0.435
	0.560	0.440

(6) Have a recommended interval for replacement of the source of light that ensures that the lantern meets the minimal required intensity stated in paragraph (a)(3) of this section in case of degradation of either the source of light or the lens.

(7) Have autonomy of at least 10 days if the light has a self-contained power system. Power production for the prospective position should exceed the load during the worst average month of insolation. The literature concerning the light must clearly state the operating limits and service intervals. Low-voltage disconnects used to protect the battery must operate so as to prevent sporadic operation at night.

(b) The manufacturer of each light approved as a private aid to navigation must certify compliance by means of an indelible plate or label affixed to the aid that meets the requirements of § 66.01-14.

5. Add § 66.01-12 to read as follows:

§ 66.01-12

May I continue to use the private aid to navigation I am currently using?

If, after March 8, 2004, you modify, replace, or install any light that requires a new application as described in § 66.01-5, you must comply with the rules in this part.

6. Add § 66.01-13 to read as follows:

§ 66.01-13

When must my newly manufactured equipment comply with these rules?

After March 8, 2004, equipment manufactured for use as a private aid to navigation must comply with the rules in this part.

7. Add § 66.01-14 to read as follows:

§ 66.01-14

Label affixed by manufacturer.

(a) Each light, intended or used as a private aid to navigation authorized by this part, must bear a legible, indelible label (or labels) affixed by the manufacturer and containing the following information:

(1) Name of the manufacturer.

(2) Model number.

(3) Serial number.

(4) Words to this effect: “This equipment complies with requirements of the U.S. Coast Guard in 33 CFR part 66.”

(b) This label must last the service life of the equipment.

(c) The manufacturer must provide the purchaser a data sheet containing the following information:

(1) Recommended service life based on the degradation of either the source of light or the lamp.

(2) Range in nautical miles.

(3) Effective intensity in candela.

(4) Size of lamp (incandescent only).

(5) Interval, in days or years, for replacement of dry-cell or rechargeable battery.

Dated: November 18, 2003.

David S. Belz,

Rear Admiral, Coast Guard, Assistant Commandant for Operations.