[Federal Register Volume 62, Number 246 (Tuesday, December 23, 1997)]
[Proposed Rules]
[Pages 67031-67034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33466]


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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;

[[Page 67032]]

    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,

[[Page 67033]]

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]
BILLING CODE 4910-14-M