[Federal Register: July 30, 2003 (Volume 68, Number 146)]
[Proposed Rules]
[Page 44706-44714]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jy03-26]
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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: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes an interim rule to establish a
regulated navigation area (RNA) for all portions of the Illinois
Waterway System located in the Ninth Coast Guard District. This RNA
will apply to towing vessel operators and fleeting area managers who
are responsible for the movement of barges carrying certain dangerous
cargoes on inland rivers and requires them to report their position and
other information to the Inland River Vessel Movement Center. 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: Comments and related material must reach the Coast Guard on or
before September 15, 2003. Comments sent to the Office of Management
and Budget (OMB) on collection of information must reach OMB on or
before September 15, 2003.
ADDRESSES: You may mail comments and related material to Commander (m),
Ninth Coast Guard District, 1240 E. Ninth Street, Cleveland, OH 44199.
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 (m), Ninth Coast Guard District,
1240 E. Ninth Street, Cleveland, OH 44199 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 similar 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).
The Ninth Coast Guard District did not receive any comments with
regard to this rulemaking. However, since this rulemaking compliments a
parallel rule published by the Eight Coast Guard District on May 2,
2003 (68 FR 23393), comments received by the Eighth District are
addressed in this rulemaking as if received in response to our
temporary final rule.
As of July 9, 2003, we have received six written comments on the
temporary rule. The American Waterways Operators (AWO) requested a
meeting with the Eighth Coast Guard District regarding the temporary
rule. A meeting was held on May 8, 2003, at the Hale Boggs Federal
Building in New Orleans, LA.
Given that the temporary rule will expire October 31, 2003, the
Coast Guard is allowing 45 days to comment on this proposed interim
rule. The Coast Guard considers 45 days to be sufficient because we
have already received comments from two associations--AWO and Gulf
Coast Marine Association (GCMA), and two of the companies impacted by
the temporary rule. As indicated in our ``Discussion of Comments and
Changes'' section below, we have considered these comments in drafting
our proposed interim rule and, where appropriate, we have made the
proposed rule less burdensome than the temporary rule currently in
effect. Also, this proposed rule would be issued as an interim rule
with an additional comment period before we would impose any final
rule.
[[Page 44707]]
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
the comment period. We may change this proposed rule in view of them.
Public Meeting
We do not now plan to hold a public meeting. But 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, (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). 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 the Illinois Waterway System 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 rule requires operators of
barges loading or loaded with CDCs within the RNA to periodically
report their position and other specified information to the Inland
River Vessel Movement Center (IRVMC) for the protection against
sabotage and terrorist acts. The temporary final rule was published May
2, 2003, in the Federal Register (68 FR 23399) and 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 inland
rivers and therefore we are proposing to issue an interim rule while we
continue to consider alternatives to increase maritime domain awareness
on the inland rivers in the Ninth Coast Guard District. The proposed
rule would allow 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
The Ninth Coast Guard District did not receive any comments with
regard to this rulemaking. However, since this rulemaking compliments a
parallel rule published by the Eighth Coast Guard District on May 2,
2003 (68 FR 23393), those comments are addressed in this rulemaking as
if received in response to our temporary final rule, request for
comments.
As of July 9, 2003, the Eighth Coast Guard District received six
written comments on the temporary rule. The American Waterways
Operators requested a meeting with the Coast Guard regarding the rule.
The meeting was held on May 8, 2003, at the Hale Boggs Federal Building
in New Orleans, LA. All comments received focused generally on: (1)
Changes and clarification of the definitions; (2) use of marine chemist
certification; (3) location and amount of reporting points; (4) CDC
barges in fleeting areas (5) need, use and validity of the information
being collected; (6) availability of the information being collected
from other sources; (7) use of technology such as electronic reporting;
(8) cost and burden of the reporting requirements; (9) justification of
the regulation; and (10) consistency with existing regulations. Each of
these groups of comments is discussed in more detail in the following
paragraphs.
Definitions. Several comments suggested some of the definitions
lead to confusion and should be clarified or removed.
Three comments were received regarding the definition of ``certain
dangerous cargoes (CDCs)'' and how they were determined. CDCs have
specific characteristics that make them a higher risk compared to the
other cargoes listed in 49 CFR parts 171 and 172. The list of cargoes
includes cargoes that have not been traditionally carried on the river
but which are not prohibited from carriage. One comment addressed the
inconsistency between the CDC definition of ammonium nitrate as stated
in the temporary rule and the CDC definition as stated in 33 CFR
160.204, published February 28, 2003 in Notification of Arrival in U.S.
Ports (68 FR 9537, 9544). The CDC list published in 33 CFR 160.204
applies to packaged cargoes listed in 49 CFR chapter I, subchapter C.
As such, ammonium nitrate in bulk is currently not considered a CDC.
The Coast Guard proposes to use the same definition as set out in 33
CFR 160.204 with the addition of propylene oxide.
Three comments received stated that the definitions of ``empty'',
``gas free''
[[Page 44708]]
and ``loaded'' were confusing and misleading. We agree. The proposed
rule will apply to barges carrying CDCs or CDC residue and the terms
``empty'', ``gas free'' and ``loaded'' will no longer be used. We
received one comment suggesting that the definition for ``final
destination'' could be removed if the regulation section was amended to
simply require a report upon dropping off a CDC barge at a fleeting
area or facility. We agree and propose to remove the term ``final
destination'' and have changed the regulation accordingly. We received
two comments stating that the definition of ``operator'' is vague. We
agree. We propose to change the word ``operator'' to ``towing vessel
operator''. Towing vessel operator would be defined as ``Captain or
pilot who is on watch.'' Also, we propose that a ``company
representative'' or ``dispatcher'' may report the specific information
required by the purpose of the rule to the IRVMC on behalf of the
towing vessel operator or fleeting area manager.
Marine Chemist Certification. We received one comment regarding the
use of a marine chemist to certify barges are ``gas free.'' As we
stated in the preceding paragraph, the terms ``empty'', ``gas free'',
and ``loaded'' are not used in this proposed rule. We have made the
proposed rule applicable only to barges carrying CDCs or CDC residue. A
barge is not carrying CDCs or CDC residue when it has either never
carried CDCs or when it has been certified as ``gas free'' by a marine
chemist.
Location and Number of Reporting Points. We received several
comments related to the location and number of reporting points. One
comment asked us why the RNA did not continue to, or beyond, New
Orleans, Louisiana. The proposed RNA is the same as the regulated area
in the temporary rule. The regulated area in the temporary rule does
not extend below mile 235.0 on the Lower Mississippi River (Baton
Rouge, Louisiana) because the NOA regulations published February 28,
2003, in the Federal Register, apply to all domestic barges carrying
CDCs operating below mile 235.0 on the Lower Mississippi River. Making
this proposed rule continue to, or beyond, New Orleans, Louisiana would
result in duplicative reporting to the National Vessel Movement Center
(NVMC) and the Inland River Vessel Movement Center (IRVMC). Therefore
the location for the proposed RNA remains unchanged from the regulated
area in the temporary rule currently in effect.
Three comments were received regarding several reporting points
being located at a turn or in other hazardous areas of the waterway.
The comments recommended changing the location of the reporting points.
We agree. We have proposed to have a segment of the waterway serve as a
reporting point (that is, the towing vessel operator would be required
to report to the IRVMC when transiting upbound between mile 235.0 and
mile 240.0 on the Lower Mississippi River). The proposed reporting
points, based on recommendations from the waterway users, are reflected
in table 165.821(e).
One comment recommended the reporting points should be the same for
upbound and downbound. We agree, with the exception of seven reporting
points, and the appropriate changes are reflected in the reporting
points proposed in table 165.821(e).
Two comments recommended using the Captain of the Port (COTP)
boundaries as reporting points because the COTP would be able to
determine when a CDC barge enters and departs the zone, allowing for a
reduction in the number of reporting points. We disagree. The IRVMC
requires reporting within a COTP zone to monitor CDC barge movement
through densely populated areas and other areas of concern. This
information is disseminated to the appropriate COTP in which the CDC
barge is located.
Fleeting Areas. We received two comments that the responsibility of
reporting movements of CDC barges in fleeting areas was unclear. We
agree and propose to change the regulatory text to specifically address
CDC barges in fleeting areas. The Coast Guard proposes that fleeting
managers or operators would not be required to report to the IRVMC when
moving CDC barges within a fleet using a fleet towing vessel. However,
they would be required to report to the IRVMC when a fleet towing
vessel moves one or more CDC barges from one fleeting area to another
fleeting area or to a facility. The Coast Guard also proposes to add
the requirement that fleeting managers report all CDC barges in the
fleeting area once a day to the IRVMC. This requirement has been
determined to be necessary to ensure accountability for CDC barges
located within fleeting areas in the RNA. A company representative or
dispatcher would be allowed to report to the IRVMC on behalf of the
fleeting area manager.
Need, Use and Validity of the Information Being Collected. We
received three comments regarding the vagueness of the Coast Guard's
need for the information being collected and how the Coast Guard
intends to use this information. We also received one comment
questioning how the Coast Guard intends to validate the information
received.
The information to be collected in this proposed rule will be used
for the same purposes as explained in the Collection of Information
section of the temporary final rule--to enhance maritime domain
awareness by tracking the movement of certain dangerous cargoes
throughout the inland river system, and enable the Coast Guard to
increase port safety and security and promote the uninterrupted flow of
commerce within the Eighth Coast Guard District. The information will
also be used 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 has used the information collected pursuant to the
temporary final rule to maintain continuous maritime domain awareness
on the inland rivers so that we may respond, as appropriate, to an
actual or threatened terrorist action. We intend to validate the
information received through random escorts of towing vessels with CDC
barges as they transit the RNA. The Coast Guard will also address the
validity of information as it explores the availability of information
available from other sources that would tend to validate information
reported to the Coast Guard.
Since the temporary RNA has been in effect the Coast Guard has re-
evaluated the need for the information being reported to the IRVMC at
the following times: (1) 4 hours prior to loading a barge with CDCs,
(2) 4 hours prior to dropping off a CDC barge at a fleeting area, and
(3) 4 hours prior to picking up one or more CDC barges from a fleeting
area. The Coast Guard has determined that there is no longer a need for
reporting to the IRVMC 4 hours prior to loading a barge with CDCs.
However, the Coast Guard needs to know where a CDC barge is within the
RNA at all times and proposes to change the conditions under which a
report must be made to the IRVMC to: (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; (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) upon moving one or more CDC barges from one fleeting area
to another fleeting area; (6) once daily, report all CDC barges within
a fleeting area; (7) at designated reporting points in table
165.821(e); (8) when estimated time of arrival (ETA) to a reporting
point varies
[[Page 44709]]
by 6 hours from the previously reported ETA; (9) any significant
deviation from previously reported information; (10) upon departing the
RNA with one or more CDC barges; and (11) when directed by the IRVMC.
Availability of the Information From Other Sources. We received
four comments on the availability of the information being collected
from other sources. One comment mentioned that if we needed to know
where the CDC barge was we would be able to request the data at any
``particular moment in time'' from the vessel operators or the Army
Corps of Engineers. We agree that the Army Corps of Engineers collects
adequate information from towing vessel operators and we are working
with the Army Corps of Engineers to access that information. Once we
are authorized to receive the information and the appropriate
electronic systems are in place and tested, then we will re-evaluate
the reporting points that coincide with the lock and dams (L&D). Until
such time we are proposing to continue requiring information at
reporting points that coincide with Army Corps of Engineer's L&Ds.
There was also discussion regarding the possibility of companies
submitting real-time barge movement information to the Coast Guard via
computer tracking programs in lieu of reporting to the Coast Guard at
individual reporting points. A number of technology issues must be
addressed in this area before this could be accomplished. Therefore,
the Coast Guard proposes to maintain the manual collection of
information from the reporting party in the interim rule while we
continue to work with other government agencies and industry partners
to research and develop alternatives to collecting the information
necessary for the Coast Guard to maintain continual maritime domain
awareness at any threat level.
Use of Technology. We received three comments regarding the use of
technology to collect information by requiring electronic delivery of
the information by automatic tracking devices and the web through real-
time tracking programs. In response to these comments the Coast Guard
is exploring existing systems used by affected companies for the
possibility of integration of these systems. Before publishing the
temporary final rule that established the existing RNA, the Coast Guard
established the Inland River Vessel Movement Center (IRVMC), creating
one location to which reports are to be made vice requiring reports to
be made to each Captain of the Port (COTP) in which the CDC barge was
operating. This proposed rule keeps the IRVMC in place, alleviating the
burden on the towing vessel operator, responsible for a CDC barge, of
having to determine which COTP zone they are operating in and
maintaining a contact list for each COTP. The IRVMC accepts telephone
(toll free), facsimile (toll free), and e-mail transmissions as means
of reporting the information. Persons subject to this requirement may
utilize the means that most efficiently meet their needs, provided that
the information and timeliness requirements are met. The Coast Guard
also has a reporting form and e-mail link available on the Internet at
http://www.uscg.mil/d8/Divs/M/IRVMC.htm.
The Coast Guard proposes to continue receiving reports as required
by the temporary rule. However, the Coast Guard proposes to consider
and approve alternative methods, to be used by a reporting party, to
meet any reporting requirements if: (1) The reporting party submits a
written request for the alternative to Commander, Ninth Coast Guard
District (m), 1240 E. Ninth Street, Cleveland, OH 44199; 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.
Cost and Burden of the Reporting Requirements. We received several
comments regarding the cost and burden of the reporting requirements.
One comment mentioned that the preparation of reports for the Coast
Guard by smaller or midsize companies that do not have 24-hour
dispatchers adds to the daily workload of the mariner. We have added to
the proposed regulatory text that alternative reporting may be
requested from the Commander, Ninth Coast Guard District.
Two comments suggested that the Coast Guard could obtain this
information from the Army Corps of Engineers rather than have separate
reporting points for the Coast Guard thereby reducing the reporting
burden. As stated earlier in this rule, we agree that the Army Corps of
Engineers collects adequate information from the towing vessel operator
and we are working with the Army Corps of Engineers to access the
information. However in the interim, we are proposing to continue to
use locks as reporting points.
Another suggestion was made to reduce the reporting requirements to
a single report every 24 hours during periods of lower Maritime
Security (MARSEC) levels, and, if the MARSEC level rose, the reporting
requirements would be increased. However, this would not satisfy the
Coast Guard's need to maintain constant maritime domain awareness for
defined areas along the river systems, nor will it provide us timely
information if the MARSEC level is increased due to a threat.
Justification of the Regulation. We received two comments
concerning the justification for the regulation. One questioned why we
implemented the RNA when we did; one questioned the justification for
the timing of the RNA because we lowered the Maritime Security
Condition (MARSEC) level the day the temporary RNA was effective; and
another one questioned why the normal regulatory process of a notice of
proposed rulemaking was not used. The effective date of the RNA and the
change in the MARSEC level were coincidental. As a component of the
Department of Homeland Security, the Coast Guard has a responsibility
to ensure the safety and security of our ports and waterways. The
temporary RNA and the proposed RNA will allow the Coast Guard to
maintain constant maritime domain awareness on the inland rivers.
Response to Comments Summary
In response to these comments the Coast Guard is (1) removing the
requirement to report 4 hours prior to loading a CDC barge in the RNA;
(2) removing the requirement of reporting 4 hours prior to dropping off
a CDC barge at a fleeting area; (3) establishing reporting requirements
specifically for fleeting area managers; (4) considering and approving
requests for alternative methods of meeting reporting requirements; (5)
amending or removing some reporting points that were in unsafe areas;
(6) exploring a reduction in checkpoints on pooled rivers by using Army
Corps of Engineers data from L&Ds; (7) researching existing systems
employed by affected companies with the possibility of the integration
of these systems; and (8) researching technology for automatic tracking
of CDC barges.
Discussion of Proposed Rule
The Coast Guard proposes to establish 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 proposed 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 cargoes (CDCs), downbound, CDC barge, Ninth
Coast
[[Page 44710]]
Guard District, towing vessel operator, and upbound are defined in the
regulatory section of this proposed rule.
Towing vessel operators responsible for one or more CDC barges
would be 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; (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 table 165.821(e); (6) when 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 would be 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 from one fleeting area to another or to a facility by
fleeting towing vessels; (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 towing vessel operator or
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, 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 is available at
http://www.uscg.mil/d8/Divs/M/IRVMC.htm.
The Coast Guard proposes to 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;
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.
Deviation from this rule is prohibited unless specifically
authorized by the Commander, Ninth Coast Guard District or designated
representatives.
Regulatory Evaluation
This proposed 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 proposed 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 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.
Annual Cost and Benefit of the Proposed Rule
[2003 Dollars]
------------------------------------------------------------------------
Cost per
Item initial Cost per Total
call update call
------------------------------------------------------------------------
Personnel........................ $9462 $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
proposed 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 proposed rule would have a significant economic
impact on a substantial number of small entities. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed
rule would 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 Illinois Waterway
System 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 think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it
[[Page 44711]]
qualifies and how and to what degree this rule would economically
affect it.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
rule would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please contact CDR Michael Gardiner, Project
Manager for Commander, Ninth Coast Guard District, 1240 E. 9th Street,
Cleveland, Ohio 44199, telephone (216) 902-6049.
Collection of Information
This proposed rule would call 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 proposed 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 will amend 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 towboat;
b. Name of fleeting area and facility;
c. Estimated time of arrival (ETA) at fleeting area and
facility;
d. Planned route, including estimated time of departure (ETD)
from fleeting area and facility;
e. Upon entry into the covered geographical area;
f. 4 hours prior to originating a voyage with a CDC within the
RNA
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 from one fleeting area to another
fleeting area or facility;
j. Once daily, all CDC barges within a fleeting area
k. ETA at approximately 105 designated reporting points within
the covered geographical area;
l. At any time 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
o. When directed by the Coast Guard.
A company representative or dispatcher may report to the IRVMC on
behalf of a towing vessel operator or fleeting area manager.
Need for Information: To ensure port safety and security and to
ensure the uninterrupted flow of commerce, the Coast Guard proposes to
issue 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.
Proposed 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 has
used 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 proposed 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 proposed 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 proposed 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 proposed 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 OMB does not
approve this revised collection of information, we will publish a
notice in the Federal Register of OMB's decision.
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
[[Page 44712]]
impose a substantial direct cost of compliance on them. We have
analyzed this proposed 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 proposed 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 proposed rule would not affect 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 proposed 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 proposed 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 proposed 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 proposed 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 draft
``Environmental Analysis Check List'' and a draft ``Categorical
Exclusion Determination'' are available where indicated under
ADDRESSES. Comments on this section will be considered before we make a
final decision on whether to categorically exclude this rule from
further environmental review.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Vessels, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposed
to amend 33 CFR part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
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.
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,
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:
(1) Towing vessel operators responsible for barges not carrying
CDCs barges, or
(2) Towing vessel operators 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.
[[Page 44713]]
Downbound means the tow is traveling with the current.
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 part 3.45-1.
Towing vessel operator means the Captain or pilot who is on watch.
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 Inland River
Vessel Movement Center (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;
(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 table 165.921(e),
in paragraph (e) 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 Inland River
Vessel Movement Center (IRVMC):
(i) Once daily, report all CDC barges within the fleeting area;
(ii) Upon moving one or more CDC barges from one fleeting area to
another fleeting area or facility 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 towing vessel operator or
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 table 165.921(e) of this
paragraph.
Table 165.921(e).--Ninth Coast Guard District Illinois Waterway System
Reporting Points
------------------------------------------------------------------------
-------------------------------------------------------------------------
(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)
(ii) M 271.5 Dresden L&D
(iii) M 291 Lockport L&D
(iv) M 303.5 Junction of Chicago Sanitary Ship Canal and
(v) Calumet-Sag Channel
(vi) M 326.4 Thomas S. O'Brien L&D, Calumet River
(vii) M 333.5 Confluence of Calumet River and Lake Michigan
(viii) 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
(v) Calumet-Sag Channel
(vi) M 291 Lockport L&D
(vii) M 271.5 Dresden L&D
(viii) M 187.2 (Southern Boundary MSO Chicago AOR)
------------------------------------------------------------------------
(f) Information to be reported by towing vessel operators to the
Inland River Vessel Movement Center. 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 Inland River Vessel Movement Center (IRVMC) by Towing Vessel Operators
--------------------------------------------------------------------------------------------------------------------------------------------------------
Planned
route, name
and location
of Estimated
Estimated destination time of
Name of vessel Barge(s) name Type, name time of of CDC barge arrival (ETA)
24 hr contact moving the and official and amount of departure (fleeting Reporting to next
No. barge(s) number CDC onboard from the area or point reporting
fleeting area facility), point (If
or facility including applicable)
estimated
time of
arrival
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Upon point of entry into X............. X............. X............. X............ ............. X............ X............ X
the RNA with a CDC barge.
[[Page 44714]]
(2) Four hours before X............. X............. X............. X............ X............ X............ ............. X
originating a voyage within
the RNA with one or more CDC
barges.
(3) Upon dropping off one or .............. X............. X............. ............. ............. ............. ............. .............
more CDC barges at a
fleeting area or facility.
(4) Upon picking up one or .............. X............. X............. X............ ............. ............. ............. .............
more additional CDC barges
from a fleeting area or
facility.
(5) At designated reporting .............. X............. X............. If........... ............. If........... X............ X
points in table 165.921(e). changed...... changed......
(6) When ETA to a reporting .............. X............. If............ If........... ............. ............. ............. X
point varies by 6 hours from changed....... changed......
previously reported ETA.
(7) Any significant deviation X............. X............. X............. X............ X............ X............ X............ X
from previously reported
information (all that apply).
(8) Upon departing the RNA .............. X............. X............. ............. ............. ............. X............ .............
with a CDC barge(s).
(9) When directed by the X............. X............. X............. X............ X............ X............ X............ X
IRVMC.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(g) Information to be reported to the Inland River Vessel Movement
Center 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 Inland River Vessel Movement Center (IRVMC) by Fleeting
Area Managers
----------------------------------------------------------------------------------------------------------------
Type, name and Location of CDC
24 hr contact No. Barge(s) name and amount of CDC barge (fleeting
official No. onboard area or facility)
----------------------------------------------------------------------------------------------------------------
(1) Once daily, all CDC barges X.................. X................. X................. X
in a fleeting area.
(2) Upon moving one or more CDC ................... X................. X................. X
barges from one fleeting area
to another fleeting area or
facility, by a fleet tow boat.
(3) Any significant deviation X.................. X................. X................. X
from previously reported
information (all that apply).
(4) When directed by the IRVMC. X.................. X................. X................. X
----------------------------------------------------------------------------------------------------------------
(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. 9th Street, Cleveland, Ohio 44199; 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: July 21, 2003.
Ronald F. Silva,
Rear Admiral, Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 03-19362 Filed 7-25-03; 3:55 pm]
BILLING CODE 4910-15-P