[Federal Register Volume 68, Number 146 (Wednesday, July 30, 2003)]
[Proposed Rules]
[Pages 44706-44714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19362]


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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 
[email protected]. 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 [email protected]. 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