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/ October
/ Monday, October 06, 2003
[Federal Register: October 6, 2003 (Volume 68, Number 193)]
[Rules and Regulations]
[Page 57616-57624]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06oc03-6]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD09-03-241]
RIN 1625-AA11
Regulated Navigation Area; Reporting Requirements for Barges
Loaded With Certain Dangerous Cargoes, Illinois Waterway System Within
the Ninth Coast Guard District
AGENCY: Coast Guard, DHS.
ACTION: Interim final rule; request for comments.
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SUMMARY: The Coast Guard is establishing a regulated navigation area
(RNA) for all portions of the Illinois Waterway System located within
the Ninth Coast Guard District. This RNA applies to towing vessel
operators and fleeting area managers who are responsible for the
movement of barges carrying certain dangerous cargoes on the Illinois
Waterway System and requires them to report their position and other
information to the Inland River Vessel Movement Center (IRVMC). This
action is necessary to ensure public safety, prevent sabotage or
terrorist acts, and facilitate the efforts of emergency services and
law enforcement officers responding to terrorist attacks.
DATES: This rule is effective on November 1, 2003. Comments and related
material must reach the Coast Guard on or before January 5, 2004.
ADDRESSES: You may mail comments and related material to Commander,
Ninth Coast Guard District (m), 1240 E. Ninth Street, Cleveland, Ohio,
44199-2060. Commander, Ninth Coast Guard District (m) maintains the
public docket for this rulemaking. Comments and material received from
the public, as well as documents indicated in this preamble as being
available in the docket, are part of docket [CGD09-03-241] and are
available for inspection or copying at Commander, Ninth Coast Guard
District (m), 1240 E. Ninth Street, Cleveland, Ohio, 44199-2060 between
8 a.m. and 3:30 p.m., Monday through Friday, except Federal holidays.
You must also mail comments on collection of information to the Office
of Information and Regulatory Affairs, Office of Management and Budget,
725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer, U.S.
Coast Guard.
FOR FURTHER INFORMATION CONTACT: Commander Michael Gardiner or
Lieutenant Matthew Colmer, Ninth Coast Guard District Marine Safety
Division, at (216) 902-6045.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On May 2, 2003, the Coast Guard published a temporary final rule
and request for comments entitled ``Regulated Navigation Area;
Reporting Requirements for Barges Loaded With Certain Dangerous
Cargoes, Illinois Waterway System within the Ninth Coast Guard
District'' in the Federal Register (68 FR 23399). We did not receive
any comments. However, the Eight Coast Guard District published a
parallel temporary final rule on May 2, 2003 (68 FR 23393). As of July
9, 2003, the Eight Coast Guard District had received six written
comments in response to their temporary final rule.
On July 30, 2003, the Coast Guard published a notice of proposed
rulemaking (NPRM) entitled ``Regulated Navigation Area; Reporting
Requirements for Barges Loaded With Certain Dangerous Cargoes, Illinois
Waterway System located within the Ninth Coast Guard District'' in the
Federal Register (68 FR 44706). When drafting the NPRM, we considered
all written comments submitted to the docket for the parallel temporary
final rule issued by the Eight Coast Guard District that was published
on May 2, 2003 (68 FR 23399). The Coast Guard's responses to those
comments are explained under the ``Discussion of Comments and Changes''
section of the NPRM (68 FR 44706).
As of September 15, 2003, we have only received one written comment
on the NPRM. No public meeting was requested so one was not held.
As indicated in our ``Discussion of Comments and Changes'' section
below, we have considered this comment in this interim final rule and,
where appropriate, we have made the rule less burdensome than the
temporary final rule currently in effect. In issuing this interim final
rule, we have allowed for an additional comment period before we impose
any final rule.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. On May 2, 2003, we published a
temporary final rule (TFR) entitled ``Regulated Navigation Area;
Reporting Requirements for Barges Loaded With Certain Dangerous
Cargoes, Illinois Waterway System with the Ninth Coast Guard District''
in the Federal Register (68 FR 23399) that is set to expire 11:59 p.m.
EDT on October 31, 2003.
The continued threat of maritime attacks is real as evidenced by
the October 2002 attack of a tank vessel off the coast of Yemen and the
continuing threat to U.S. assets as described in the President's
finding, found at Executive Order 13273 of August 21, 2002 (67 FR
56215, September 3, 2002) that the security of the U.S. is endangered
as evidenced by the September, 11, 2001 attacks and that such
disturbances continue to endanger the international relations of the
United States. See also Continuation of the National Emergency with
Respect to Certain Terrorist Attacks, (67 FR 58317, September 13,
2002); Continuation of the National Emergency With Respect To Persons
Who Commit, Threaten To Commit, Or Support Terrorism, (67 FR 59447,
September 20, 2002). Additionally, a Maritime Advisory was issued to:
Operators of U.S. Flag and Effective U.S. controlled Vessels and other
Maritime Interests, detailing the current threat of attack, MARAD 02-07
(October 10, 2002). Consequently, heightened measures have been
instituted to ensure the safety of vessels, ports and waterway users.
The measures contemplated by this rule are intended to prevent future
terrorist attacks against individuals, vessels or facilities on the
Illinois Waterway System within the Ninth Coast Guard District. Any
delay in the effective date of this TFR is impractical and contrary to
the public interest. The original temporary final rule was urgently
required to prevent possible terrorist strikes against the United
States and more specifically the people, waterways, and properties on
the navigable waters of the U.S.
Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related material. If you do so, please include your name
and address, identify the docket number for this rulemaking [CGD09-03-
241], indicate the specific section of this document to which each
comment applies, and give the reason for each comment. Please submit
all comments and related material in an unbound format, no larger than
8\1/2\ by 11 inches, suitable for copying. If you would like to know
they reached us, please enclose a stamped, self-addressed postcard or
envelope. We will consider all comments and material received during
[[Page 57617]]
the comment period before issuing any final rule.
Public Meeting
We do not now plan to hold a public meeting. You may submit a
request for a meeting by writing to Commander, Ninth Coast Guard
District (m) at the address under ADDRESSES explaining why one would be
beneficial. If we determine that one would aid this rulemaking, we will
hold one at a time and place announced by a later notice in the Federal
Register.
Background and Purpose
Terrorist attacks on September 11, 2001, inflicted catastrophic
human casualties and property damage. These attacks highlighted the
terrorists' abilities to utilize multiple means in different geographic
areas thereby increasing their opportunities to maximize destruction.
Since the September 11, 2001 terrorist attacks on the World Trade
Center in New York, the Pentagon in Arlington, Virginia and Flight 93,
the Federal Bureau of Investigation (FBI) has issued several warnings
concerning the potential for additional terrorist attacks within the
United States. The threat of maritime attacks is real as evidenced by
the October 2002 attack on a tank vessel off the coast of Yemen and the
prior attack on the USS COLE. These attacks manifest a continuing
threat to U.S. assets as described in the President's finding in
Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3,
2002). The President found that the security of the U.S. is endangered
by the September 11, 2001 attacks and terrorist attacks continue to
endanger the international relations of the United States. See also
Continuation of the National Emergency with Respect to Certain
Terrorist Attacks, (68 FR 53665, September 10, 2003); Continuation of
the National Emergency With Respect to Persons Who Commit, Threaten To
Commit, or Support Terrorism, (68 FR 55189, September 18, 2003). The
references to these Presidential Documents as they appear in this
interim final rule have updated those referenced in the NPRM (68 FR
44697). The U.S. Maritime Administration (MARAD) in Advisory 02-07
advised U.S. shipping interests to maintain a heightened state of alert
against possible terrorist attacks. MARAD also issued Advisory 03-03
informing operators of maritime interests of increased threat
possibilities to vessels and facilities and a higher risk of terrorist
attacks to the transportation community in the United States. The
ongoing hostilities in Afghanistan and Iraq have made it prudent for
U.S. ports and waterways to be on a higher state of alert due to the Al
Qaeda organization and other similar organizations who have declared
their intentions to conduct armed attacks on U.S. interests worldwide.
Therefore, on April 16, 2003, the Coast Guard established a
temporary RNA within that portion of the Illinois Waterway System
located within the Ninth Coast Guard District in order to safeguard
vessels, ports and waterfront facilities from sabotage or terrorist
acts. The temporary RNA remains in effect and applies to barges loaded
with certain dangerous cargoes (CDCs) operating on the Illinois
Waterway System above mile 187.2 to the Chicago Lock on the Chicago
River at mile 326.7, and to the confluence of the Calumet River and
Lake Michigan at mile 333.5 of the Calumet River. The RNA affects
vessels transporting barges loaded with CDCs that if used as weapons of
terrorism could result in substantial loss of life, property,
environmental damage, and grave economic consequences. The temporary
final rule requires operators of barges loading or loaded with CDCs
within the RNA to periodically report their position and other
specified information to the IRVMC for protection against sabotage and
terrorist acts. The temporary final rule published May 2, 2003, (68 FR
23399) expires on October 31, 2003.
The Coast Guard has determined that there is a need to continue the
reporting requirements for barges loaded with CDCs operating on
Illinois Waterway System and therefore we are issuing an interim rule
while we continue to consider alternatives to increase maritime domain
awareness on the Illinois Waterway System within the Ninth Coast Guard
District. This rule allows the Coast Guard to enhance maritime
security, protect ports and facilities and high-density population
centers (metropolitan areas), control vessel traffic, develop
contingency plans, and enforce regulations.
Discussion of Comments and Changes
As of September 15, 2003, we received one written comment to the
NPRM. The comment was addressed to both the Eighth and Ninth Coast
Guard Districts. Two parts of the comment were focused specifically on
the Ninth Coast Guard District. We will address those two areas of
concern first.
The first concern was that rather than have specific reporting
points, that operators be permitted to report while within a particular
segment like what is already permitted in the Eighth Coast Guard
District. The Ninth Coast Guard District is adopting this
recommendation so that the reporting system process is identical
whether you are in the Eighth or Ninth Coast Guard District. The second
concern requested that we remove two reporting points: the Lockport
Lock & Dam and the Dresden Lock & Dam. Since vessels are reporting in
upon entry into the RNA, and upon dropping off or picking up a CDC
barge from a fleeting area or facility, the Coast Guard will follow
this recommendation.
Several other comments were received that were more general in
nature. Since the Eighth Coast Guard District has a parallel rule, we
are adopting their responses to those comments to ensure uniformity
between the Eighth and Ninth District and the requirements of the
IRVMC. The comment focused generally on 4 concerns: (a) Reporting the
planned route, (b) notifying the IRVMC 4 hours prior to originating a
voyage within the RNA with one or more CDC barges, (c) notifying the
IRVMC upon moving one or more CDC barges from one fleeting area to
another fleeting area or facility, and (d) reporting information as
directed by the Coast Guard. Each section of this comment is discussed
in more detail in the following six paragraphs.
Planned Route. The one comment we received stated that the
requirement for submission of a planned route will increase the burden
upon the mariner while providing no improvement on the information
already required since point-to-point movements rarely allow for more
than one route. We agree and have removed the requirement to report the
planned route because the IRVMC will be receiving periodic updates on a
CDC barge(s)'s location as the towing vessel operator checks in at
designated reporting points along the planned route. The requirement to
submit a report with the name and location of the destination for each
CDC barge and the estimated time of arrival remains unchanged.
Four hour advance notification. The one comment we received stated
a concern regarding the requirement to report information 4 hours
before originating a voyage within the RNA with one or more CDC barges.
The comment indicates that fleeting area managers do not always have 4
hours advance notice of movement between receipt of an order and
origination of the voyage. The comment suggested the requirement be
amended to allow fleeting area managers to notify the IRVMC as soon as
possible after the fleeting area manager receives a request to make up
a tow or to deliver a CDC
[[Page 57618]]
barge at a terminal. While we agree that in certain cases a fleeting
area manager will not have sufficient time to make a 4-hour advance
notification of movement to the IRVMC, this regulation does not require
fleeting area managers to provide such notification. This regulation
requires towing vessel operators to notify the IRVMC 4 hours before
originating a voyage within the RNA with one or more CDC barges.
However, we believe the conceptual basis of the comment applies to this
requirement. For example, an operator of a towing vessel without any
CDC barges operating in the RNA may receive an order to pick up a CDC
barge. If the towing vessel is in close proximity to where the CDC
barge is located, the evolution of making up the new tow with the CDC
barge and originating the voyage may take less than 4 hours. According
to the existing requirement in the NPRM, the towing vessel operator
would then qualify as originating a voyage within the RNA with one or
more CDC barges and as such would be required to provide the IRVMC with
a notice 4 hours before originating the voyage. The Coast Guard
understands that delaying the voyage to comply with the 4-hour advance
notification requirement could negatively affect commercial operations.
To alleviate this potential problem, we are adding an exception to the
existing requirement. This exception will permit the towing vessel
operator to make the required report to the IRVMC as soon as possible
before originating a voyage in the RNA with one or more CDC barges.
This exception is valid only if the following conditions exist--
(a) The evolution of making up a tow with a CDC barge will take
less than 4 hours before originating a voyage; and
(b) The towing vessel operator did not receive the order to make up
a tow with a CDC barge in advance of 4 hours before originating the
voyage with one or more CDC barges.
If the previous two conditions exist, the towing vessel operator
must submit the required report to the IRVMC as soon as possible after
receiving orders to make up a tow with one or more CDC barges.
Movement of barges from fleeting area to fleeting area or facility.
The one comment we received stated that companies routinely move barges
from one fleeting area to another fleeting area or facility and that
reporting each of these movements would impose an excessive burden. It
further states that one company may operate multiple fleeting areas
within a limited geographic area. The comment recommends that the Coast
Guard define fleeting areas within a certain geographic area as a
``single fleet'' and allow movement within that ``single fleet'' to
occur without reporting each movement to the IRVMC. The purpose of
knowing the specific location of a CDC barge is to allow for a more
efficient response to an incident or threatened incident. It is the
intention of this regulation to give the Coast Guard the necessary
information to be able to track and have knowledge of the location of
each CDC barge at all times. Under the existing requirements, we are
only asking the fleeting area manager to provide limited information
regarding the movement of a CDC barge from one fleeting area to another
fleeting area or facility. We are not changing this requirement,
however, we do feel that definitions are needed for ``fleeting area'',
``fleet tow boat'', and ``towing vessel''. For the purposes of this
requirement, the term ``fleeting area'' will be defined to mean any
fleet, including any facility, located within the area covered by one
single port. The term ``fleet tow boat'' will be defined to mean any
size vessel that is used to move, transport, or deliver a CDC barge
within a fleeting area. The term ``towing vessel'' will be defined to
mean any size vessel that is used to move, transport, or deliver a CDC
barge to a fleet or facility that is located in a different port than
where the voyage originated.
The following example is provided to illustrate the intention of
these definitions: A fleeting area manager is required to provide
notification to the IRVMC of the movement of a CDC barge from fleet
``A'' located in port ``A'', to fleet ``B'' located in port ``A'' when
such movement is conducted by a fleet tow boat. If the movement of a
CDC barge were to occur from fleet ``A'' located in port ``A'', to
fleet ``Z'' located in port ``Z'', such movement is considered to have
been done by a towing vessel and the notifications requirements would
reside with the towing vessel operator when the CDC barge was picked up
at fleet ``A'' and dropped off at fleet ``Z''.
When directed by the IRVMC. The one comment we received indicated
that there was a lack of coordination within the Coast Guard that led
to mariners having to submit duplicate reports of required information.
There is a concern that a towing vessel operator may receive multiple
calls from various government agencies requesting similar information.
These multiple calls could create an unnecessary distraction for the
towing vessel operator. The comment requested the Coast Guard clarify
the information reporting requirement to read ``As directed by the
IRVMC.'' The published NPRM currently reads ``When directed by the
IRVMC'' and as such will not be changed. However, we feel it is
necessary to explain the different types of calls a towing vessel
operator can expect while transporting one or more CDC barges in the
RNA. The first type of call would be from the IRVMC for the following
reasons: (1) Obtaining missing or illegible information, (2)
investigating missed or inaccurate reports, (3) collecting information
for the purposes of responding to an incident or threatened incident,
(4) responding to an increase in the maritime security level, or (5)
advising the mariner on new or unexpected changes in procedures. This
list of reasons is not all-inclusive. The second type of call would be
from the United States Army Corps of Engineers (USACE) requesting
information from the mariner as the towing vessel approaches a USACE
controlled lock and dam. As many of the reporting points required by
this regulation are located at USACE controlled locks and dams, the
Coast Guard understands that some information provided by the towing
vessel operator will have to be supplied twice--once to the USACE and
once to the IRVMC. The Coast Guard and USACE are currently working to
address the issue of duplicative reporting and are researching methods
to use existing technology to serve as a single point of collection.
The third type of call would be from a Coast Guard Captain of the Port
office for issues pertaining to the coordination of vessel escorts or
boardings or other marine safety issues. Calls for these purposes are
unrelated to the information collection requirements outlined by this
regulation and are necessary for the Coast Guard Captain of the Port to
meet Coast Guard mission requirements. The final type of call would be
from a Coast Guard vessel or boarding team located in close proximity
to the towing vessel for the purposes of conducting law enforcement
operations or vessel escorts. These types of calls are also unrelated
to the information collection requirements outlined by this regulation
and are necessary to meet Coast Guard mission requirements.
Response to Comments Summary
In response to the received comment the Coast Guard is (1) removing
the requirement to report the planned route of one or more CDC barges,
(2) establishing an exception to the 4-hour advance notification for
originating a voyage in the RNA with one or more CDC barges, (3)
defining the terms ``fleeting area'', fleet tow boat'', and ``towing
vessel'' to clarify fleeting area manager reporting requirements, and
(4)
[[Page 57619]]
explaining the different types of calls a towing vessel operator can
expect while transporting one or more CDC barges in the RNA.
Portions of this regulation have been revised to reflect the usage
of these new definitions. The addition of the new definitions does not
create any substantial changes. The portions of the regulatory text
that are affected by these new definitions include the
``Applicability'', ``Definitions'', and ``Regulations'' sections.
Company Representative or Dispatcher Making Required Reports. The
NPRM indicated that a company representative or dispatcher would be
allowed to report the required information to the IRVMC on behalf of
the towing vessel operator or fleeting area manager. With the addition
of the definitions for ``fleet tow boat'' and ``towing vessel'', we
realized that allowing a company representative or dispatcher to make
reports on behalf of a towing vessel operator is contrary to the
intentions of this regulation. The intention of this regulation is to
provide the Coast Guard with positive reports generated by towing
vessel operators and fleeting area managers who have direct control
over CDC barges. Because fleets and facilities typically have multiple
persons who have direct control over CDC barges, we are allowing a
fleeting area manager, company representative, or dispatcher to make
the required reports. In contrast, a towing vessel operator is the only
person who will have direct control over CDC barges in their tow. As it
relates to this regulations, we have clarified the definition of
``towing vessel operator'' to mean the Captain or pilot who is on watch
on board a towing vessel. The portions of the regulatory text that are
affected by this clarification include the ``Definitions'' and
``Regulations'' sections.
Discussion of Rule
The Coast Guard is establishing a regulated navigation area for the
Illinois Waterway System above mile 187.2 to the Chicago Lock on the
Chicago River at mile 326.7, and to the confluence of the Calumet River
and Lake Michigan at mile 333.5 of the Calumet River. This rule applies
to: (1) towing vessel operators responsible for one or more CDC barges
within the regulated area, and (2) fleeting area managers responsible
for CDC barges in a fleeting area. The terms ``barge'', ``certain
dangerous cargo or (CDC)'', ``CDC barge'', ``downbound'', ``fleet tow
boat'', ``fleeting area'', ``Ninth Coast Guard District'', ``towing
vessel'', ``towing vessel operator'', and ``upbound'' are defined in
the regulatory section of this rule.
Towing vessel operators responsible for one or more CDC barges are
required to report specific information to the IRVMC under the
following conditions: (1) Upon point of entry into the RNA with one or
more CDC barges; (2) 4 hours prior to originating a voyage within the
RNA with one or more CDC barges, except if (a) the evolution of making
up a tow with a CDC barge will take less than 4 hours before
originating a voyage, and (b) the towing vessel operator did not
receive the order to make up a tow with a CDC barge in advance of 4
hours before originating the voyage with one or more CDC barges, in
which case the towing vessel operator must submit the required report
to the IRVMC as soon as possible after receiving orders to make up a
tow with one or more CDC barges (3) upon dropping off one or more CDC
barges at a fleeting area or facility; (4) upon picking up one or more
additional CDC barges from a fleeting area or facility; (5) at
designated reporting points in paragraph (e) of this section; (6) when
the estimated time of arrival (ETA) to a reporting point varies by 6
hours from the previously reported ETA; (7) any significant deviation
from previously reported information; (8) upon departing the RNA with
one or more CDC barges; and (9) when directed by the IRVMC.
Fleeting area managers are required to report specific information
to the IRVMC under the following conditions: (1) Once daily, report all
CDC barges within the fleeting area; (2) upon moving a CDC barge within
a fleeting area by a fleet tow boat; (3) any significant deviation from
previously reported information; and (4) when directed by the IRVMC.
A company representative or dispatcher may report the required
information to the IRVMC on behalf of the fleeting area manager.
Each report made to the IRVMC by a towing vessel operator or
fleeting area manager must contain all the information items specified
in tables 165.921(f) and 165.921(g), respectively.
Reports must be made to the IRVMC by telephone to (866) 442-6089, by fax to (866) 442-6107, or by e-mail to irvmc@cgstl.uscg.mil. A
reporting form and e-mail link is available at http://www.uscg.mil/d8/Divs/M/IRVMC.htm
.
The Coast Guard will consider and approve alternative reporting
methods to meet any reporting requirements if: (1) the request for the
alternative is submitted in writing to Commander, Ninth Coast Guard
District (m), 1240 E. Ninth Street, Cleveland, Ohio, 44199-2060; and
(2) the alternative provides an equivalent level of reporting to that
which would be achieved by the Coast Guard with the required check-in
points.
The Coast Guard encourages the submission of requests for
alternative reporting methods. It is the Coast Guard's hope that
companies will embrace current modern technology or future technology
as it becomes available to automatically report the locations of the
towing vessels and the CDC barges they are responsible for directly to
the Coast Guard in real or as close to real time as possible. We
believe that the development of such systems will significantly reduce
the burden imposed upon the towing vessel operator and fleeting area
manager who must submit the reports, as well as those Coast Guard
personnel who must process those reports.
Deviation from this rule is prohibited unless specifically
authorized by the Commander, Ninth Coast Guard District or the IRVMC.
Regulatory Evaluation
This 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 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. We present this Regulatory Evaluation for the
purposes of information.
Evaluation. The regulatory baseline for this rule is the existing
temporary rule. The cost for complying with the rule will differ
depending on the means used to make a report to the IRVMC and the type
of report, either an initial report or an update. The cost of the rule
presented below is based on the average number of reports received by
the IRVMC in April 2003 and May 2003.
[[Page 57620]]
Estimated Annual Cost and Benefit of the Rule
[2003 Dollars]
----------------------------------------------------------------------------------------------------------------
Cost per Cost per
Item initial call update call Total
----------------------------------------------------------------------------------------------------------------
Personnel....................................................... $9,462 $17,871 $27,333
Operating Expenses.............................................. 28,386 53,613 81,999
-----------------
Total....................................................... $37,848 $71,484 $109,332
----------------------------------------------------------------------------------------------------------------
This cost estimate assumes: (1) The average merchant mariner's
hourly rate is $30, (2) the average initial call is 6 minutes, (3) the
average update call is 2 minutes, (4) the average cost per cell phone
call is $1.50 per minute, and (5) 15 percent of all responses are
initial reports to the IRVMC. Therefore, based on 177 respondents, the
average cost is $618 per CDC barge per year. The reporting requirements
are necessary to provide immediate, improved security for the public,
vessels, and U.S. ports and waterways. The requirements do not alter
normal barge transits. The minimal hardships that may be experienced by
persons or vessels, as a result of this rule, are necessary to the
national interest in protecting the public, vessels, and vessel crews
from the devastating consequences of acts of terrorism, and from
sabotage or other subversive acts, accidents, or other causes of a
similar nature.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule will 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 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. This rule will affect the following entities, some of which
may be small entities: towing vessel operators and fleeting area
managers responsible for CDCs barges on inland waterways within the
Ninth Coast Guard District. This RNA will not have a significant
economic impact on a substantial number of small entities because this
rule does not require any alteration of barge operations or transits.
The operational communications required by this RNA do not require
towing vessel operators or fleeting area managers to obtain new
equipment and can be made toll free to the IRVMC.
If you are a small business entity and are significantly affected
by the regulation, please contact CDR Michael Gardiner or LT Matthew
Colmer, Project Managers for the Ninth Coast Guard District Commander,
1240 E. Ninth Street, Cleveland, Ohio 44199-2060, telephone (216) 902-
6045.
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 rule so that they can better evaluate
its effects on them and participate in the rulemaking process. 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 rule calls for a collection of information under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 CFR
1320.3(c), ``collection of information'' comprises reporting,
recordkeeping, monitoring, posting, labeling, and other, similar
actions. The title and description of the information collection, a
description of those who must collect the information, and an estimate
of the total annual burden follow. The estimate covers the time for
reviewing instructions, searching existing sources of data, gathering
and maintaining the data needed, and completing and reviewing the
collection.
This rule revises an existing OMB-approved collection of
information (1625-0105). The new collection of information estimate is
based on data gathered as a result of the information collected under
the temporary rule and is based on actual reports received by the
IRVMC, as well as actual observation and tracking, for April 2003 and
May 2003.
Title: Regulated Navigation Areas; Reporting Requirements for
Barges Loaded with Certain Dangerous Cargoes, Inland Rivers, Eighth
Coast Guard District and the Illinois Waterway, Ninth Coast Guard
District.
OMB Control Number: 1625-0105.
Summary of the Collection of Information: The Coast Guard requires
position and intended movement reporting, and fleeting operations
reporting, from barges carrying CDCs in the inland rivers within the
Eighth and Ninth Coast Guard Districts. This rule amends 33 CFR part
165 to require:
Towing vessel operators and fleeting area managers responsible
for CDC barges must report the following information via toll free
telephone, toll free fax, or email:
a. Name of barge and towing vessel;
b. Name of fleeting area and facility;
c. Estimated time of arrival (ETA) at fleeting area and
facility;
d. Estimated time of departure (ETD) from fleeting area and
facility;
e. Upon entry into the covered geographical area;
f. Four hours prior to originating a voyage with a CDC within
the RNA, except if (a) the evolution of making up a tow with a CDC
barge will take less than 4 hours before originating a voyage, and
(b) the towing vessel operator did not receive the order to make up
a tow with a CDC barge in advance of 4 hours before originating the
voyage with one or more CDC barges, in which case towing vessel
operator shall submit the required report to the IRVMC as soon as
possible after receiving orders to make up a tow with one or more
CDC barges;
g. Upon picking up an additional CDC barge from a fleeting area
or facility;
h. Upon dropping off a CDC barge at a fleeting area or facility;
i. Upon moving a CDC barge within a fleeting area by a fleet tow
boat;
j. Once daily, all CDC barges within a fleeting area;
k. ETA at approximately 90 designated reporting points within
the covered geographical area;
l. At any time the ETA to a reporting point varies by 6 hours
from the previously reported ETA;
m. Any significant deviation from previously reported
information;
n. Upon departing the covered geographical area; and
[[Page 57621]]
o. When directed by the IRVMC.
A company representative or dispatcher may report to the IRVMC
on behalf of the fleeting area manager.
Need for Information: To ensure port safety and security and to
ensure the uninterrupted flow of commerce, the Coast Guard is issuing
regulations requiring position and intended movement reporting and
fleeting operations reporting from barges carrying CDCs in the inland
rivers within the Eighth and Ninth Coast Guard Districts.
Use of Information: The information is required to enhance maritime
security, protect ports and facilities and high-density population
centers (metropolitan areas), control vessel traffic, develop
contingency plans, and enforce regulations. The Coast Guard will use
the information to maintain continuous maritime domain awareness on the
inland rivers so that we may respond as appropriate to an actual or
threatened terrorist action and enhance maritime security by boarding
and/or escorting CDC barges in the vicinity of high-density population
areas.
Description of the Respondents: The respondents are owners, agents,
masters, towing vessel operators, or persons in charge of barges loaded
with CDCs or having CDC residue operating on the inland rivers located
within the Eighth and Ninth Coast Guard Districts.
Number of Respondents: The existing OMB-approved collection number
of respondents is 3,505. This rule will decrease the number of
respondents by 3,328 to a total of 177.
Frequency of Response: Towing vessel operators moving barges
carrying CDCs or CDC residue will submit reports as necessary. The
existing OMB-approved collection annual number of responses is 7,711.
This rule will increase the number of responses by 13,313 to a total of
21,024.
Burden of Response: The existing OMB-approved collection burden of
response is 15 minutes (0.25 hours)(burden of response is the time
required to complete the paperwork requirements of the rule for a
single response). This rule will decrease the burden of response by 9
minutes (0.15 hours) to a total of 6 minutes (0.10 hours).
Estimate of Total Annual Burden: The existing OMB-approved
collection total annual burden is 1,928 hours (total annual burden is
the time required to complete the paperwork requirements of the rule
for all responses). This rule will decrease the total annual burden by
1017 hours to a total of 911 hours.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), we have submitted a copy of this rule to the Office of
Management and Budget (OMB) for its review and approval of the revised
collection of information. The existing OMB-approved collection (1625-
1505) expires on October 31, 2003.
We ask for public comment on the collection of information to help
us determine how useful the information is, whether it can help us
perform our functions better, whether it is readily available
elsewhere, how accurate our estimate of the burden of collection is,
how valid our methods for determining burden are, how we can improve
the quality, usefulness, and clarity of the information, and how we can
minimize the burden of collection.
If you submit comments on the collection of information, submit
them both to OMB and to the Docket Management Facility where indicated
under ADDRESSES, by the date under DATES.
You need not respond to a collection of information unless it
displays a currently valid control number from OMB. If and when OMB
approves this revised collection of information, we will publish a
separate notice in the Federal Register.
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 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 rule would not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule would 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 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 rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and would not create an
environmental risk to health or risk to safety that might
disproportionately affect children.
Indian Tribal Governments
This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it would 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 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. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
Environment
We have analyzed this rule under Commandant Instruction M16475.1D,
which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and
have concluded that there are no factors in this case that would limit
the use of categorical exclusion under section 2.B.2 of the
Instruction. Therefore, this rule is categorically excluded, under
figure 2-1 paragraph (34)(g), of the instruction, from further
environmental documentation because this rule is not expected to result
in any significant environmental impact as described in NEPA. A final
``Environmental Analysis Check List'' and a final ``Categorical
[[Page 57622]]
Exclusion Determination'' are available where indicated under
ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Vessels, Waterways.
0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
1. The authority citation for part 165 continues to read as follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub.
L. 107-295, 166 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.
0
2. Add Sec. 165.921 to read as follows:
Sec. 165.921 Regulated Navigation Area; Reporting Requirements for
Barges Loaded with Certain Dangerous Cargoes, Illinois Waterway System
located within the Ninth Coast Guard District.
(a) Regulated Navigation Area. The following waters are a regulated
navigation area (RNA): the Illinois Waterway System above mile 187.2 to
the Chicago Lock on the Chicago River at mile 326.7 and to the
confluence of the Calumet River and Lake Michigan at mile 333.5 of the
Calumet River.
(b) Applicability. This section applies to towing vessel operators
and fleeting area managers responsible for CDC barges in the RNA. This
section does not apply to towing vessel operators responsible for
barges not carrying CDC barges, or fleet tow boats moving one or more
CDC barges within a fleeting area.
(c) Definitions. As used in this section--
Barge means a non-self propelled vessel engaged in commerce, as set
out in 33 CFR 160.204.
Certain Dangerous Cargo or (CDC) includes any of the following:
(1) Division 1.1 or 1.2 explosives as defined in 49 CFR 173.50.
(2) Division 1.5D blasting agents for which a permit is required
under 49 CFR 176.415 or, for which a permit is required as a condition
of a Research and Special Programs Administration exemption.
(3) Division 2.3 ``poisonous gas'', as listed in 49 CFR 172.101
that is also a ``material poisonous by inhalation'' as defined in 49
CFR 171.8, and that is in a quantity in excess of 1 metric ton per
barge.
(4) Division 5.1 oxidizing materials for which a permit is required
under 49 CFR 176.415 or, for which a permit is required as a condition
of a Research and Special Programs Administration exemption.
(5) A liquid material that has a primary or subsidiary
classification of Division 6.1 ``poisonous material'' as listed in 49
CFR 172.101 that is also a ``material poisonous by inhalation'', as
defined in 49 CFR 171.8 and that is in a bulk packaging, or that is in
a quantity in excess of 20 metric tons per barge when not in a bulk
packaging.
(6) Class 7, ``highway route controlled quantity'' radioactive
material or ``fissile material, controlled shipment'', as defined in 49
CFR 173.403.
(7) Bulk liquefied chlorine gas and bulk liquefied gas cargo that
is flammable and/or toxic and carried under 46 CFR 154.7.
(8) The following bulk liquids--
(i) Acetone cyanohydrin,
(ii) Allyl alcohol,
(iii) Chlorosulfonic acid,
(iv) Crotonaldehyde,
(v) Ethylene chlorohydrin,
(vi) Ethylene dibromide,
(vii) Methacrylonitrile,
(viii) Oleum (fuming sulfuric acid), and
(ix) Propylene Oxide.
CDC barge means a barge containing CDCs or CDC residue.
Downbound means the tow is traveling with the current.
Fleet tow boat means any size vessel that is used to move,
transport, or deliver a CDC barge within a fleeting area.
Fleeting area means any fleet, including any facility, located
within the area covered by one single port.
Inland River Vessel Movement Center or (IRVMC) means the Coast
Guard office that is responsible for collecting the information
required by this section.
Ninth Coast Guard District means the Coast Guard District as set
out in 33 CFR 3.45-1.
Towing vessel means any size vessel that is used to move,
transport, or deliver a CDC barge to a fleet or facility that is
located in a different port than where the voyage originated.
Towing vessel operator means the Captain or pilot who is on watch
on board a towing vessel.
Upbound means the tow is traveling against the current.
(d) Regulations. The following must report to the Inland River
Vessel Movement Center (IRVMC):
(1) The towing vessel operator responsible for one or more CDC
barges in the RNA must report all the information items specified in
table 165.921(f), in paragraph (f) of this section, to the IRVMC:
(i) Upon point of entry into the RNA with one or more CDC barges;
(ii) Four hours before originating a voyage within the RNA with one
or more CDC barges, except if the evolution of making up a tow with a
CDC barge will take less than 4 hours before originating a voyage, and
the towing vessel operator did not receive the order to make up a tow
with a CDC barge in advance of 4 hours before originating the voyage
with one or more CDC barges, in which case the towing vessel operator
shall submit the required report to the IRVMC as soon as possible after
receiving orders to make up a tow with one or more CDC barges;
(iii) Upon dropping off one or more CDC barges at a fleeting area
or facility;
(iv) Upon picking up one or more additional CDC barges from a
fleeting area or facility;
(v) At designated reporting points, set forth in paragraph of this
section;
(vi) When the estimated time of arrival (ETA) to a reporting point
varies by 6 hours from the previously reported ETA;
(vii) Any significant deviation from previously reported
information;
(viii) Upon departing the RNA with one or more CDC barges; and
(ix) When directed by the IRVMC.
(2) The fleeting area manager responsible for one or more CDC
barges in the RNA must report all the information items specified in
table 165.921(g), in paragraph (g) of this section, to the IRVMC:
(i) Once daily, report all CDC barges within the fleeting area;
(ii) Upon moving one or more CDC barges within a fleeting area by a
fleet tow boat;
(iii) Any significant deviation from previously reported
information; and
(iv) When directed by the IRVMC.
(3) Reports required by this section may be made by a company
representative or dispatcher on behalf of the fleeting area manager.
(4) Reports required by this section must be made to the IRVMC
either by telephone to (866) 442-6089, by fax to (866) 442-6107, or by e-mail to irvmc@cgstl.uscg.mil. A reporting form and e-mail link are
available at http://www.uscg.mil/d8/Divs/M/IRVMC.htm.
(5) The general regulations contained in 33 CFR 165.13 apply to
this section.
(e) Ninth Coast Guard District Illinois Waterway System RNA
Reporting points. Towing vessel operators responsible for one or more
CDC barges in the RNA must make reports to the Inland River Vessel
Movement Center at each point listed in this paragraph (e).
(1) Illinois River (ILR) Upbound, at Mile Markers (M) and when
Departing Lock & Dam (L&D)--
(i) M 187.2 (Southern Boundary MSO Chicago AOR),
[[Page 57623]]
(ii) M 303.5 Junction of Chicago Sanitary Ship Canal and Calumet-
Sag Channel,
(iii) M 326.4 Thomas S. O'Brien L&D, Calumet River,
(iv) M 333.5 Confluence of Calumet River and Lake Michigan, and
(v) M 326.7 Chicago L&D, Chicago River.
(2) Illinois River (ILR) Downbound Reporting Points, at Mile
Markers (M) and when Departing Lock & Dam (L&D)--
(i) M 326.7 Chicago L&D, Chicago River,
(ii) M 333.5 Confluence of Calumet River and Lake Michigan,
(iii) M 326.4 Thomas S. O'Brien L&D, Calumet River,
(iv) M 303.5 Junction of Chicago Sanitary Ship Canal and Calumet-
Sag Channel, and
(v) M 187.2 (Southern Boundary MSO Chicago AOR).
(f) Information to be reported to the IRVMC by towing vessel
operators. With the exception noted in paragraph (d)(1)(ii) of this
section, towing vessel operators responsible for one or more CDC barges
in the RNA must report all the information required by this section as
set out in table 165.921(f) of this paragraph.
Table 165.921(F).--Information To Be Reported to the IRVMC by Towing Vessel Operators
--------------------------------------------------------------------------------------------------------------------------------------------------------
Name and
Estimated location of
time of destination of Estimated time
24-hour Name of Barge(s) Type, name departure CDC barge of arrival
contact vessel name and and amount from (fleeting area Reporting (ETA) to next
number moving official of CDC fleeting or facility), point reporting point
barge(s) number onboard area or including (If applicable)
facility estimated time
of arrival
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Upon point of entry into the RNA with X X X X ........... X X X
a CDC barge..............................
(2) 4 hours before originating a voyage X X X X X X ........... X
within the RNA with one or more CDC
barges; but see exception in paragraph
(d)(1)(ii) of this section...............
(3) Upon dropping off one or more CDC .......... X X
barges at a fleeting area or facility....
(4) Upon picking up one or more additional .......... X X X
CDC barges from a fleeting area or
facility.................................
(5) At designated reporting points in .......... X X (\1\) ........... (\1\) X X
165.921(e)...............................
(6) When ETA to a reporting point varies .......... X (\1\) (\1\) ........... ............... ........... X
by 6 hours from previously reported ETA..
(7) Any significant deviation from X X X X X X X X
previously reported information (all that
apply)...................................
(8) Upon departing the RNA with a CDC .......... X X ............ ........... ............... X
barge (s)................................
(9) When directed by the IRVMC............ X X X X X X X X
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ If changed.
(g) Information to be reported to the IRVMC by fleeting area
managers. Fleeting area managers responsible for one or more CDC barges
in the RNA must report the information required by this section as set
out in table 165.921(g) to this paragraph.
Table 165.921(G).--Information To Be Reported to the IRVMC by Fleeting Area Managers
----------------------------------------------------------------------------------------------------------------
Location of CDC
24-hour contact Barge(s) name Type, name and barge (fleeting
number and official amount of CDC area or
number onboard facility)
----------------------------------------------------------------------------------------------------------------
(1) Once daily, all CDC barges in a fleeting X X X X
area.......................................
(2) Upon moving one or more CDC barges ............... X X X
within a fleeting area by a fleet tow boat.
(3) Any significant deviation from X X X X
previously reported information (all that
apply).....................................
(4) When directed by the IRVMC.............. X X X X
----------------------------------------------------------------------------------------------------------------
[[Page 57624]]
(h) Alternative reporting. The Ninth Coast Guard District Commander
may consider and approve alternative methods to be used by a reporting
party to meet any reporting requirements if--
(1) The request is submitted in writing to Commander, Ninth Coast
Guard District (m), 1240 E. Ninth Street, Cleveland, Ohio, 44199-2060;
and
(2) The alternative provides an equivalent level of the reporting
that which would be achieved by the Coast Guard with the required
check-in points.
(i) Deviation from this section is prohibited unless specifically
authorized by the Commander, Ninth Coast Guard District or the IRVMC.
Dated: September 29, 2003.
Ronald F. Silva,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 03-25296 Filed 10-1-03; 3:55 pm]
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