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

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Parts 62 and 66

[USCG 97-3112; CGD 97-018]

RIN 2115-AF45

Merger of the Uniform States Waterway Marking System With the

United States Aids to Navigation

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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

Uniform State Waterway Marking System with the United States Aids to

Navigation System. This merger eliminates distinctions between the two

systems and creates safer, less confusing waterways.

DATES: This final rule is effective July 20, 1998.

ADDRESSES: Documents as indicated in this preamble are available for

inspection or copying at the Docket Management Facility, [USCG-97-

3112], U.S. Department of Transportation, room PL-401, 400 Seventh

Street SW., Washington, DC 20590-0001.

FOR FURTHER INFORMATION CONTACT:

For questions on this rule contact Dan Andrusiak, OPN-2 Short Range

Aids to Navigation Division, USCG Headquarters, telephone (202) 267-

0327, For questions on viewing material in the docket, contact Carol

Kelley, Coast Guard Dockets Team Leader, or

[[Page 33571]]

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

Transportation, telephone (202) 366-9329.

SUPPLEMENTARY INFORMATION:

Regulatory History

On December 23, 1997, the Coast Guard published a notice of

proposed rulemaking entitled ``Merger of the Uniform State Waterway

Marking System and the United States Aids to Navigation System'' in the

Federal Register (62 FR 67031). The Coast Guard received five letters

commenting on the proposed rulemaking. No public hearing was requested,

and none was held.

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 62.02-25, 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 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. A comparison of these two systems

showed that almost all of the requirements of the USWMS are contained

in the USATONS.

The major differences between the two systems are:

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

regulatory buoys;

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

is silent; and,

3. The USWMS uses the cardinal system to mark obstructions and the

USATONS uses the lateral System of marking obstructions.

Discussion of Comments and Changes

One comment suggested that in Secs. 62.1(b)(2), 62.21(a), 66.05-1,

66.05-5(b), and 66.05-20 (c)(3) the wording ``insert date five years

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

rule'' be changed to ``December 31, 2003''. The Coast Guard agrees with

this suggestion, and will also change Sec. 66.10-1.

One comment suggested that in Sec. 62.33(b) the Coast Guard delete

``of international orange'' from the first sentence. The Coast Guard

concurs and has changed Sec. 62.33(b). This change eliminates potential

confusion from a belief that two different shades of orange are

required.

One comment suggested that in Sec. 62.33(b) in the second sentence,

change ``at the top'' to ``near the top.'' The Coast Guard agrees with

this suggestion because an orange band at the very top of a buoy would

cease to be a band but would result in a buoy with an orange top.

One comment suggested the Coast Guard not add the lighting

requirements for mooring buoys to Sec. 62.35, but to Sec. 62.45(d)(6),

which prescribes the light rhythm requirements. The Coast Guard agrees.

One comment suggested that in Sec. 62.54 the wording be changed to

be less ambiguous. Specifically the comment suggested that Sec. 62.54

read ``Succinct, concise ownership identification which does not

compromise signal effectiveness is permitted on aids to navigation.''

The Coast Guard disagrees with the suggested wording. Historically,

ownership identification on private or State aids to navigation has not

been a problem. Additionally, the Coast Guard does not desire at this

time to expand the authority for ownership markings to Federal aids to

navigation.

Another comment suggested that the reference to the ``second

category'' in paragraph 66.10-15(a) be removed and this paragraph

changed to read ``USWMS aids to navigation may have lateral or cardinal

meaning.'' The Coast Guard agrees, The ``first category'' of USWMS aids

was regulatory markers discussed in Sec. 66.10-5. This section is

removed since equivalent regulatory marks exist in Sec. 62.33.

Therefore, because no ``first category'' exists, discussion of a

``second category'' may be confusing.

One comment expressed concern over the change in definition of the

red and white striped buoy, because this would eliminate an aid which

provides the mariner specific information ``not to pass between the

buoy and the nearest shore''. The comment also stated that in an area

where it is hard to determine the head of navigation, the use of side

marks would be impracticable. The comment suggested the creation of a

black and white vertically striped buoy available for use on Inland

Waters, with the meaning ``do not pass between the buoy and the nearest

shore''. The Coast Guard agrees. A new section has been added that

allows the use of a black and white striped buoy on Inland waters,

where the head of navigation is hard to define, which warns mariners

not to pass between the buoy and the nearest shore. Further, to avoid

confusion, USWMS red and white striped obstruction buoys under

Sec. 66.10-15(e)(3) will not be permitted to exist on a body of water

for which the new USATONS black and white vertically striped buoy is

used.

Another comment suggested that once the regulations from the two

systems are merged, proper training must be given to all users. The

Coast Guard agrees, and will provide education and outreach information

regarding the merger of these two systems through the office of Boating

Safety website (www.uscgboating.org) and through the Coast Guard

Customer Information Line at 1-800-368-5647. Additionally, the Coast

Guard expects that the various State Boating Law Administrators will

modify existing educational materials to reflect the changes.

One comment suggested that in addition to changing the meaning of

the red and white striped buoy, the Coast Guard also change the shape

of this aid. The USATONS requires the red and white safe water mark to

be spherical or display spherical top mark. This is the requirement for

all newly established safe water marks and for all safe water marks at

the end of the phase-in period.

One comment suggested that the costs associated with this change

would impose a monetary burden on the states currently using USWMS. The

replacement of USWMS aids is linked to the aid's lifecycle. Since, the

existing aids will need replacement during the phase-in period, no

additional costs should be incurred. Also, most existing educational

materials will need to be replaced during this five year phase-in

period. Further, through training and education the Coast Guard

believes any

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confusion from the existence of the two systems on one waterway to be

minimal.

Discussion of Rule

Regulatory and Informational Markers: The USATONS provides a system

for information and 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

near the top of the buoy. The Coast Guard amends 33 CFR 62.33 to add

the USWMS requirement of two horizontal orange bands to the USATONS.

Channel markers: The USWMS black buoy will be replaced, via a

phased-in process, with the green buoy required by the USATONS. The

phase-in process avoids unnecessary replacement costs to the states.

Red and white striped buoy: The meaning of the red and white

striped buoy changes from the USWMS ``do not pass between the buoy and

nearest shore'' to the USATONS ``safewater all around.'' Obstructions

marked with the USWMS red and white striped buoy can be marked, via a

phased-in process, with the USATONS' sidemark prescribed in 33 CFR

62.25(b), with an isolated danger mark prescribed in 33 CFR 62.29, or

with the new black and white striped buoy prescribed in 33 CFR 62.32.

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 can 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), or with an isolated danger mark

prescribed in 33 CFR 62.29, or with the new black and white striped

buoy prescribed in 33 CFR 62.32.

Mooring buoys: Unlike the USWMS, the USATONS is silent on

prescribing lights on mooring buoys. The Coast Guard amends 33 CFR

62.45 to incorporate mooring buoys, allowing white lights of various

rhythms.

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 does not affect numbers, letters, or

words on marks.

Reflectors and retroeflective 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 does 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 does 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 inserted 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 adds a section to the USATONS stating

language to this effect.

Changes to 33 CFR Subpart 66.05

The merging of the USWMS with the USATONS requires conforming

editorial corrections to Subpart 66.05 entitled, ``State Aids to

Navigation,'' to reflect the new rules.

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 removed because the provisions of these sections are

contained in the USATONS, or are being inserted into the USATONS.

The only sections remaining in subpart 66.10 are 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 December 31, 2003.

General, Sec. 66.10-1: This section is revised to reflect the

merger of the two systems, the implementation date, and to remove

references to deleted sections.

Aids to Navigation, Sec. 66.10-15: This section provides

information concerning the marking of channels and the cardinal system

of marking, and as such remains until the end of the phase-in period.

Regulatory Evaluation

This rule 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 rule 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, linked to the aid's lifecycle, 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 USATONS 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.

Small Entities

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

Guard considers whether this rule 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 and will not directly impact

small entities. 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

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

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

offered to assist small entities in understanding this rule so that

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

rulemaking process.

If 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.

[[Page 33573]]

Collection of Information

This final rule does not provide for a collection of information

under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Federalism

The Coast Guard has analyzed this proposal under the principles and

criteria contained in Executive Order 12612 and has determined that

this rule 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 rule does not affect the states ability to

prescribe regulations for its own internal non-navigable waters.

Unfunded Mandates

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), (Pub.

L. 104-4, 109 Stat. 48), requires Federal agencies to access the

effects of certain regulatory actions on State, local, and tribal

governments, and the private sector. UMRA requires a written statement

of economic and regulatory alternatives for proposed and final rules

that contain any Federal mandates. A ``Federal mandate'' is a new or

additional enforceable duty, imposed on any State, local, or tribal

government, or the private sector. If any Federal mandate causes those

entities, to spend in aggregate, $100 million or more in any one year

the UMRA analysis is required. This rule does not impose Federal

mandates on any State, local or tribal governments or the private

sector.

Environment

The Coast Guard considered the environmental impact of this

proposal and concluded that, under figure 2-1, paragraph 34(a) and (i)

of Commandant Instruction M16475.1C, this rule is categorically

excluded from further environmental documentation. Merging the USWMS

with the USATONS has 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 amends 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.

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)(1) * * *

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

December 31, 2003, 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

December 31, 2003,''.

4. Add Sec. 62.32 to subpart B to read as follows:

Sec. 62.32 Inland waters obstruction mark.

(a) On inland waters designated by the Commandant as State waters

in accordance with Sec. 66.05-5 of this chapter and on non-navigable

internal waters of a State which have no defined head of navigation, a

buoy showing alternate vertical black and white stripes may be used to

indicate to a vessel operator that an obstruction to navigation extends

from the nearest shore to the buoy.

(b) The black and white buoy's meaning is ``do not pass between the

buoy and the shore''. The number of white and black stripes is

discretionary, provided that the white stripes are twice the width of

the black stripes. Prior to December 31, 2003, this aid shall not be

used on a waterway which has a red and white striped obstruction marker

defined in Sec. 66.10-15(e)(3) of this chapter, unless all obstruction

markers are replaced.

5. 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 placed completely

around the buoy circumference. One band shall be near 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.

6, In Sec. 62.45, revise paragraph (d)(6) to read as follows:

Sec. 62.34 Light characteristics.

* * * * *

(d) * * *

(6) Mooring Buoys and Information and Regulatory Marks display

white lights of various rhythms.

* * * * *

7. Add Sec. 62.54 to subpart 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

8. 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]

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

designation (a).

10. 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 on the provisions of subpart 66.10, which are valid

until December 31, 2003, aids to navigation must be in accordance with

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

subchapter.

11. 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. Subpart 66.10, which describes the USWMS, expires on December

31, 2003.

* * * * *

Sec. 66.05-20 [Amended]

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

the words ``If prior to December 31, 2003,'' and uncapitalize the word

``Specification''.

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

Sec. 66.10-1 General.

(a) Until December 31, 2003, 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 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]

14. Remove Sec. 66.10-5.

Sec. 66.10-10 [Removed]

15. Remove Sec. 66.10-10.

16. In Sec. 66.10-15 revise paragraph (a) to read as follows:

Sec. 66.19-15 Aids to navigation.

(a) USWMS aids to navigation may have lateral or cardinal meaning.

* * * * *

Sec. 66.10-20 [Removed]

17. Remove Sec. 66.10-20.

Sec. 66.10-25 [Removed]

18. Remove Sec. 66.10-25.

Sec. 66.10-30 [Removed]

19. Remove Sec. 66.10-30.

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

Sec. 66.10-35 Navigation lights.

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 other buoys. When a

light is used on a cardinal system buoy or a vertically striped white

and red buoy, it shall always be quick flashing.

Sec. 66.10-40 [Removed]

21. Remove Sec. 66.10-40.

Sec. 66.10-45. [Removed]

22. Remove Sec. 66.10-45.

Dated: June 11, 1998.

Ernest R. Riutta,

Assistant Commandant for Operations.

[FR Doc. 98-16242 Filed 6-18-98; 8:45 am]

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