Merger of the Uniform State Waterways Marking System With the United States Aids to Navigation System

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Parts 62 and 66

[USCG 97 3112, CGD 97-018]

RIN 2115-AF45

Merger of the Uniform State Waterways Marking System With the

United States Aids to Navigation System

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes a five year phased-in merger of the

Uniform State Waterway Marking System with the United States Aids to

Navigation System. This proposed merger would eliminate distinctions

between these two systems and create safer, less confusing waterways.

DATES: Comments are requested by February 23, 1998.

ADDRESSES: You may mail comments to the Docket Management Facility,

[USCG-97-3112], U.S. Department of Transportation, Room PL-401, 400

Seventh Street SW., Washington, DC 20590-0001, or deliver them to room

PL-401, located on the Plaza Level of the Nassif Building at the same

address between 10 a.m. and 5 p.m., Monday through Friday, except

Federal holidays. The telephone number is (202) 366-9329.

The Docket Management Facility maintains the public docket for this

rulemaking. Comments, and documents as indicated in this preamble, will

become part of this docket and will be available for inspection or

copying at room PL-401, located on the Plaza Level of the Nassif

Building at the above address between 9:30 a.m. and 2 p.m., Monday

through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Paulette Twine, Chief, Documentary Services Division, U.S. Department

of Transportation, telephone (202) 366-9329 or Dan Andrusiak, Short

Range Aids to Navigation Division, USCG Headquarters, Telephone: (202)

267-0327.

SUPPLEMENTARY INFORMATION:

Request for Comments

The Coast Guard encourages your participation in this rulemaking by

the submission of written data, views, or arguments. Your comments

should include your name and address, and identify this rulemaking

[USCG-97-3112] and the specific section of this notice of proposed

rulemaking to which each comment applies, along with the reason for

each comment. Please submit two copies of all comments and attachments

in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for

copying and electronic filing to the DOT Docket Management Facility at

the address under ADDRESSES. If you want acknowledgment of receipt of

your comment, enclose a stamped, self-addressed postcard or envelope.

The Coast Guard will consider all comments received during the

comment period and may change this proposed rule in view of the

comments.

The Coast Guard plans no public hearing. You may request a public

hearing by submitting a request to the address under ADDRESSES. The

request should include the reasons a hearing would be beneficial. If

the Coast Guard determines that the opportunity for oral presentations

will aid this rulemaking, it will hold a public hearing at a time and

place announced by a later notice in the Federal Register.

Background and Purpose

The Uniform State Waterways Marking System (USWMS), 33 CFR 66.10,

prescribes regulatory markers and aids to navigation that may mark

navigable waters that the Commandant designates as state waters in

accordance with 33 CFR 66.05-5. The USWMS may also mark the non-

navigable internal waters of a state.

The United States Aids to Navigation System (USATONS), 33 CFR 62,

prescribes regulatory markers and aids to navigation that mark

navigable waters of the United States. Navigable waters, defined by 33

CFR 2.02-25, include territorial seas and internal waters that have

been or can be used for interstate commerce, either by themselves or in

connection with other waterways.

Section 66.10-1(b), allows the use of USATONS on state and non-

navigable internal waters, and many states already use the USATONS

instead of the USWMS.

In 1992, the National Association of State Boating Law

Administrators (NASBLA) passed a resolution requesting that the Coast

Guard:

1. Change the meaning of the red and white striped buoy from the

USWMS meaning of obstruction to the USATONS meaning of safewater;

2. Change the black USWMS buoy to the green USATONS buoy, and

3. Use a phased-in implementation period for these changes.

NASBLA requested these changes because they believe the current

USWMS markings, which are different from the USATONS markings, confuse

boaters and could cause casualties.

In 1993, NASBLA's Law Enforcement & Uniform Boating Laws Committee

conducted a survey concerning the differences between the USWMS and the

USATONS. The survey focused on the red and white striped buoy and the

green versus black buoy. Of the 42 states that responded to the survey,

11 states indicated that they use the red and white striped buoy as

defined by the USWMS, 15 states indicated that they use the USWMS's

black buoy, and 35 states indicated that the USWMS should reflect the

same characteristics as the USATONS.

On December 29, 1995, the Coast Guard published an advanced notice

of proposed rulemaking (CGD 94-091) (60 FR 67345) to gauge public

opinion toward conforming the USWMS with the USATONS. On March 27,

1996, a notice of proposed rulemaking was published (61 FR 13472) that,

among other things, proposed eliminating the USWMS. The Coast Guard

received adverse comments from ten states. Many of the comments stated

concerns that elimination of the USWMS would eliminate regulatory

markers and would cause the states to bear the costs of purchasing aids

and revising boating manuals. As a result of these comments, the Coast

Guard removed the proposal to eliminate the USWMS from the final rule.

The Coast Guard then contacted the NASBLA and each state that commented

and discussed their concerns.

Apart from the two distinctions explained above, a Coast Guard

comparison of the USWMS and the USATONS showed that almost all of the

requirements of the USWMS are contained in the USATONS. The differences

between the two systems are:

1. The USMWS has the additional requirement of orange bands on

regulatory buoys;

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2. The USWMS allows for lights on mooring buoys whereas the USATONS

is silent; and,

3. The USWMS uses the cardinal system of marking obstructions and

the USATONS uses the lateral system of marking obstructions.

By adding to the USATONS the requirement for orange bands on

regulatory buoys, by allowing lights on mooring buoys, and by allowing

a phased-in implementation period for the marking of obstructions with

the USATONS lateral system, the two systems could be merged. The Coast

Guard proposes to make these changes to the USATONS, provide a five

year phased-in implementation period, and merge the USWMS into the

USATONS.

If, however, you think that a different phase-in period is

necessary, please submit a comment (see ADDRESSES) explaining why a

different phase-in period is necessary and a proposed length for this

phase-in period.

Discussion of Proposed Rule

Regulatory and Information Markers

The USATONS provides a system for regulatory markers nearly

identical to the USWMS. The only USWMS requirement not prescribed by

the USATONS is that buoys have two horizontal orange bands, one just

above the water line and one at the top of the buoy. The Coast Guard

proposes to amend 33 CFR 62.33 to add the USWMS requirement of two

horizontal orange bands to the USATONS.

Channel Markers

The USWMS black buoy would be replaced, via a phased-in process,

with the green buoy required by the USATONS. The phase-in process would

be linked to the aid's lifecycle to avoid unnecessary replacement costs

to the states.

Red-and-White Striped Buoy

The meaning of the red-and-white striped buoy would change from the

USWMS ``do not pass between the buoy and the nearest shore'' to the

USATONS ``safewater all around.'' Obstructions now marked with the

USWMS red-and-white striped buoy could be marked, via a phase-in

process, with the USATONS' sidemark prescribed in 33 CFR 62.25(b), or

with an isolated danger mark prescribed in 33 CFR 62.29.

Cardinal Marks

In the USWMS, white buoys with a red top band mean that the mariner

can pass safely south or west of the buoy, and white buoys with a black

top band mean that the mariner can pass safely north or east of the

buoy. The USATONS does not contain cardinal marks, and areas presently

marked with these USWMS aids could be replaced with the USATONS

isolated danger mark prescribed in 33 CFR 62.29, or a side mark

prescribed in 33 CFR 62.25(b).

Mooring Buoys

Unlike the USWMS, the USATONS is silent on prescribing lights on

mooring buoys. The Coast Guard proposes to amend 33 CFR 62.35 to allow

for slow flashing, white lights on mooring buoys.

Numbers, Letters, or Words on Markers

The guidance in the USATONS, 33 CFR 62.43 (a) & (b), is similar to

that in the USWMS 33 CFR 66.10-25, so the merging of the two systems

would not affect numbers, letters, or words on markers.

Reflectors and Retroreflective Materials

The USATONS guidance for the uses of retroreflective material, 33

CFR 62.43(c), is less restrictive than the USWMS guidance found in 33

CFR 66.10-30, so the merger would not require a change in the use of

reflectors or retroflective material.

Navigation Lights

The USATONS requirements for the use of navigation lights, 33 CFR

62.45, is similar to that of the USWMS found in 33 CFR 66.10-35, so the

merger would not affect the use of navigation lights.

Size, Shape, Material, and Construction of Markers

No specific guidance for size, shape, material and construction of

markers exists in the USATONS. The USWMS wording on these items, found

in 33 CFR 66.10-20, is not necessary and is not proposed for insertion

into the USATONS.

Ownership Identification

The USWMS, in 33 CFR 66.10-40, allows for the discretionary use of

ownership identification on aids to navigation. The USATONS does not

prohibit use of ownership identification. Ownership identification,

however, should not be placed on an aid in a way that would change the

meaning of the aid to navigation. The Coast Guard proposes to add a

section to the USATONS starting language to this effect.

Changes to 33 CFR Subpart 66.05

The merging of the USWMS with the USATONS would also require

conforming editorial corrections to Subpart 66.05 entitled, ``State

Aids to Navigation,'' to reflect the proposed changes.

Changes to 33 CFR Subpart 66.10

Sections 66.10-5, 66.10-10, 66.10-20, 66.10-25, 66.10-30, 66.10-40,

and 66.10-45 are proposed for removal because the provisions of these

sections are contained in the USATONS, or are proposed for insertion

into the USATONS.

The only sections that will remain in subpart 66.10 will be the

general section, the aids to navigation section, and that portion of

the navigation lights section which refers to lights on cardinal marks.

These sections may be used until the end of the five year

implementation period.

General, Section 66.10-1

This section will be revised to reflect the merger of the two

systems, the five year implementation period, and to remove references

to deleted sections.

Aids to Navigation, Section 66.10-15

This section provides information concerning the marking of

channels and the cardinal system of marking, and as such will remain

until the end of the phase-in period.

Regulatory Evaluation

This proposal is not a significant regulatory action under section

3(f) of Executive Order 12866 and does not require an assessment of

potential costs and benefits under section 6(a)(3) of that Order. It

has not been reviewed by the Office of Management and Budget under that

Order. It is not significant under regulatory policies and procedures

of the Department of Transportation (DOT) (44 FR 11040; February 26,

1979).

The Coast Guard expects the economic impact of this proposal to be

so minimal that a full Regulatory Evaluation under paragraph 10e of the

regulatory policies and procedures of DOT is unnecessary. Merging the

USWMS with the USATONS, via a phased-in implementation period, will not

impose an increased monetary burden on the States currently using the

USWMS. There is currently no price difference between aids with the

USWMS markings and aids with USATONS markings. Further, because the

replacement of the aid is linked to its lifecycle, purchase of a USATON

aid is not required until the end of the USWMS aid's lifecycle, any

additional costs are eliminated.

Consequently, the Coast Guard believes that this rulemaking will

not impose any additional costs on the states. If, however, you believe

that this proposal will have an economic impact,

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please submit a comment (see ADDRESSES) explaining why you think this

proposal will have economic impact, and explain any alternatives you

believe would eliminate the economic impact of this proposal.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast

Guard considers whether this proposal, if adopted, will have a

significant impact on a substantial number of small entities. ``Small

entities'' include small businesses, not-for-profit organizations that

are independently owned and operated and are not dominant in their

fields, and governmental jurisdictions with populations less than

50,000.

The USWMS is a system that regulates state aids to navigation.

Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this

proposal, if adopted, will not have a significant economic impact on a

substantial number of small entities. If, however, you think that your

business or organization qualifies as a small entity and that this

proposal would have a significant economic impact on your business or

organization, please submit a comment (see ADDRESSES) explaining why

you think it qualifies and in what way and to what degree this proposal

would economically affect it.

Assistance for Small Entities

In accordance with section 213(a) of the Small Business Regulatory

Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard

wants to assist small entities in understanding this proposed rule so

that they can better evaluate its effects on them and participate in

the rulemaking process. If your small business or organization is

affected by this rule and you have questions concerning its provisions

or options for compliance, please contact Mr. Dan Andrusiak, Short

Range Aids to Navigation Division, USCG Headquarters, Telephone: (202)

267-0327.

Collection of Information

This proposal contains no increase in collection-of-information

requirements under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Federalism

The Coast Guard has analyzed this proposal under the principles and

criteria contained in Executive Order 12612 and has determined that

this proposal does not have sufficient federalism implications to

warrant the preparation of a Federalism Assessment. Pursuant to 14

U.S.C. 85, the Coast Guard, as delegated by the Secretary, Department

of Transportation, has responsibility to create all regulations

concerning aids to navigation for all waters subject to the

jurisdiction of the United States. This proposal does not affect the

states ability to prescribe regulations for its own internal non-

navigable waters.

Environment

The Coast Guard considered the environmental impact of this

proposal and concluded that, under paragraph 2.B.2.e(23), (34)(a), and

(34)(i) of Commandant Instruction M16475.1B, this proposal is

categorically excluded from further environmental documentation.

Merging the USWMS with the USATONS would have no environmental

implications. A Categorical Exclusion Determination is available in the

rulemaking docket for inspection or copying where indicated under

ADDRESSES.

List of Subjects

33 CFR Part 62

Navigation (water).

33 CFR part 66

Intergovernmental relations, Navigation (water). For the reasons

set out in the preamble, the Coast Guard proposes to amend 33 CFR parts

62 and 66 as follows:

PART 62--UNITED STATES AIDS TO NAVIGATION SYSTEM

1. The authority citation for part 62 continues to read as follows:

Authority: 14 U.S.C. 85; 33 U.S.C. 1233; 43 U.S.C. 1333; 49 CFR

1.46.

Sec. 62.1 [Amended]

2. In Sec. 62.1, redesignate paragraph (b) as paragraph (b)(1), and

add a paragraph (b)(2) to read as follows:

Sec. 62.1 Purpose.

* * * * *

(b) * * *

(2) The regulations found in 33 CFR subpart 66.10 expire on [Insert

date five years from the date of publication in the Federal Register of

the final rule.], at which time the provisions of this part will apply.

* * * * *

Sec. 62.21 [Amended]

3. In Sec. 62.21(a), add after the words ``The navigable waters of

the United States'', the words ``, and non-navigable state waters after

[Insert date 5 years from publication in the Federal Register of the

final rule.],''

4. In Sec. 62.33, redesignate the introductory text as paragraph

(a), redesignate existing paragraphs (a) through (d) as (a)(1) to

(a)(4), and add a new paragraph (b) to read as follows:

Sec. 62.33 Information and regulatory marks.

* * * * *

(b) When a buoy is used as an information or regulatory mark it

shall be white with two horizontal orange bands of international orange

placed completely around the buoy circumference. One band shall be at

the top of the buoy body, with a second band placed just above the

waterline of the buoy so that both bands are clearly visible.

Sec. 62.35 [Amended]

5. In Sec. 62.35 add the following words to the end of the text:

``Lighted mooring buoys may display a slow flashing white light.''

6. Add Sec. 62.54 to Supart B to read as follows:

Sec. 62.54 Ownership identification.

Ownership identification on private or state aids to navigation is

permitted so long as it does not change or hinder an understanding of

the meaning of the aid to navigation.

PART 66--PRIVATE AIDS TO NAVIGATION

7. The authority citation for part 66 continues to read as follows:

Authority: 14 U.S.C. 83, 85; 43 U.S.C. 1333; 49 CFR 1.46.

Sec. 66.01-10 [Amended]

8. In Sec. 66.01-10 delete paragraph (b) and remove the paragraph

designation (a).

9. Revise Sec. 66,05-1 to read as follows:

Sec. 66.05-1 Purpose.

The purpose of the regulations in this subpart is to prescribe the

conditions under which state governments may regulate aids to

navigation owned by state or local governments, or private parties.

With the exception of the provisions of subpart 66.10, which are valid

until [Insert date five years from date of publication in the Federal

Register of the final rule.], aids to navigation must be in accordance

with the United States Aids to Navigation System in part 62 of this

subchapter.

10. In Sec. 66.05-5, revise the section heading and paragraph (b)

to read as follows:

Sec. 66.05-5 Definitions.

* * * * *

(b) The term Uniform State Waterway Marking System (USWMS) means

the system of private aids to navigation which may be operated in State

waters.

[[Page 67034]]

Subpart 66.10, which describes the USWMS, expires on [Insert date five

years from the date of publication in the Federal Register of the final

rule.].

* * * * *

Sec. 66.05-20(c)(3) [Amended]

11. In Sec. 66.05-20(c)(3) add to the beginning of the paragraph

the words ``If prior to [Insert date five years from the date of

publication in the Federal Register of the final rule.],'' and

uncapitalized the word ``Specification''.

12. Revise Sec. 66.10-1 to read as follows:

Sec. 66.10-1 General.

(a) Until [Insert date five years from date of publication in the

Federal Register of the final rule.], the Uniform State Waterway

Marking System's (USWMS) aids to navigation provisions for marking

channels and obstructions may be used in those navigable waters of the

U.S. that have been designated as state waters for private aids to

navigation and in those internal waters that are non-navigable waters

of the U.S. All other provisions for the use of regulatory markers and

other aids to navigation shall be in accordance with the United States

Aid to Navigation System, described in part 62 of this subchapter.

(b) The USATONS may be used in all U.S. waters under state

jurisdiction, including non-navigable state waters.

Sec. 66.10-5 [Removed]

13. Remove Sec. 66.10-5.

Sec. 66.10-10 [Removed]

14. Remove Sec. 66.10-10.

Sec. 66.10-20 [Removed]

15. Remove Sec. 66.10-20.

Sec. 66.10-25 [Removed]

16. Remove Sec. 66.10-25.

Sec. 66.10-30 [Removed]

17. Remove Sec. 66.10-30.

18. Revise Sec. 66.10-35 to read as follows:

Sec. 66.10-35 Navigation lights.

(a) A red light shall only be used on a solid colored red buoy. A

green light shall only be used on a solid colored black or a solid

colored green buoy. White lights shall be used for all system buoy

other buoys. When a light is used on a cardinal or a vertically

stripped white and red buoy it shall always to quick flashing.

(b) [Reserved]

Sec. 66.10-40 [Removed]

18. Remove Sec. 66.10-40.

Sec. 66.10-45 [Removed]

19. Remove Sec. 66.10-45.

Dated: December 17, 1997.

Ernest R. Riutta,

Rear Admiral, U.S. Coast Guard, Assistant Commandant for Operations.

[FR Doc. 97-33466 Filed 12-22-97; 8:45 am]

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