[Federal Register Volume 68, Number 193 (Monday, October 6, 2003)]
[Rules and Regulations]
[Pages 57616-57624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-25296]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD09-03-241]
RIN 1625-AA11


Regulated Navigation Area; Reporting Requirements for Barges 
Loaded With Certain Dangerous Cargoes, Illinois Waterway System Within 
the Ninth Coast Guard District

AGENCY: Coast Guard, DHS.

ACTION: Interim final rule; request for comments.

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SUMMARY: The Coast Guard is establishing a regulated navigation area 
(RNA) for all portions of the Illinois Waterway System located within 
the Ninth Coast Guard District. This RNA applies to towing vessel 
operators and fleeting area managers who are responsible for the 
movement of barges carrying certain dangerous cargoes on the Illinois 
Waterway System and requires them to report their position and other 
information to the Inland River Vessel Movement Center (IRVMC). This 
action is necessary to ensure public safety, prevent sabotage or 
terrorist acts, and facilitate the efforts of emergency services and 
law enforcement officers responding to terrorist attacks.

DATES: This rule is effective on November 1, 2003. Comments and related 
material must reach the Coast Guard on or before January 5, 2004.

ADDRESSES: You may mail comments and related material to Commander, 
Ninth Coast Guard District (m), 1240 E. Ninth Street, Cleveland, Ohio, 
44199-2060. Commander, Ninth Coast Guard District (m) maintains the 
public docket for this rulemaking. Comments and material received from 
the public, as well as documents indicated in this preamble as being 
available in the docket, are part of docket [CGD09-03-241] and are 
available for inspection or copying at Commander, Ninth Coast Guard 
District (m), 1240 E. Ninth Street, Cleveland, Ohio, 44199-2060 between 
8 a.m. and 3:30 p.m., Monday through Friday, except Federal holidays. 
You must also mail comments on collection of information to the Office 
of Information and Regulatory Affairs, Office of Management and Budget, 
725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer, U.S. 
Coast Guard.

FOR FURTHER INFORMATION CONTACT: Commander Michael Gardiner or 
Lieutenant Matthew Colmer, Ninth Coast Guard District Marine Safety 
Division, at (216) 902-6045.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On May 2, 2003, the Coast Guard published a temporary final rule 
and request for comments entitled ``Regulated Navigation Area; 
Reporting Requirements for Barges Loaded With Certain Dangerous 
Cargoes, Illinois Waterway System within the Ninth Coast Guard 
District'' in the Federal Register (68 FR 23399). We did not receive 
any comments. However, the Eight Coast Guard District published a 
parallel temporary final rule on May 2, 2003 (68 FR 23393). As of July 
9, 2003, the Eight Coast Guard District had received six written 
comments in response to their temporary final rule.
    On July 30, 2003, the Coast Guard published a notice of proposed 
rulemaking (NPRM) entitled ``Regulated Navigation Area; Reporting 
Requirements for Barges Loaded With Certain Dangerous Cargoes, Illinois 
Waterway System located within the Ninth Coast Guard District'' in the 
Federal Register (68 FR 44706). When drafting the NPRM, we considered 
all written comments submitted to the docket for the parallel temporary 
final rule issued by the Eight Coast Guard District that was published 
on May 2, 2003 (68 FR 23399). The Coast Guard's responses to those 
comments are explained under the ``Discussion of Comments and Changes'' 
section of the NPRM (68 FR 44706).
    As of September 15, 2003, we have only received one written comment 
on the NPRM. No public meeting was requested so one was not held.
    As indicated in our ``Discussion of Comments and Changes'' section 
below, we have considered this comment in this interim final rule and, 
where appropriate, we have made the rule less burdensome than the 
temporary final rule currently in effect. In issuing this interim final 
rule, we have allowed for an additional comment period before we impose 
any final rule.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for making this rule effective less than 30 days after 
publication in the Federal Register. On May 2, 2003, we published a 
temporary final rule (TFR) entitled ``Regulated Navigation Area; 
Reporting Requirements for Barges Loaded With Certain Dangerous 
Cargoes, Illinois Waterway System with the Ninth Coast Guard District'' 
in the Federal Register (68 FR 23399) that is set to expire 11:59 p.m. 
EDT on October 31, 2003.
    The continued threat of maritime attacks is real as evidenced by 
the October 2002 attack of a tank vessel off the coast of Yemen and the 
continuing threat to U.S. assets as described in the President's 
finding, found at Executive Order 13273 of August 21, 2002 (67 FR 
56215, September 3, 2002) that the security of the U.S. is endangered 
as evidenced by the September, 11, 2001 attacks and that such 
disturbances continue to endanger the international relations of the 
United States. See also Continuation of the National Emergency with 
Respect to Certain Terrorist Attacks, (67 FR 58317, September 13, 
2002); Continuation of the National Emergency With Respect To Persons 
Who Commit, Threaten To Commit, Or Support Terrorism, (67 FR 59447, 
September 20, 2002). Additionally, a Maritime Advisory was issued to: 
Operators of U.S. Flag and Effective U.S. controlled Vessels and other 
Maritime Interests, detailing the current threat of attack, MARAD 02-07 
(October 10, 2002). Consequently, heightened measures have been 
instituted to ensure the safety of vessels, ports and waterway users. 
The measures contemplated by this rule are intended to prevent future 
terrorist attacks against individuals, vessels or facilities on the 
Illinois Waterway System within the Ninth Coast Guard District. Any 
delay in the effective date of this TFR is impractical and contrary to 
the public interest. The original temporary final rule was urgently 
required to prevent possible terrorist strikes against the United 
States and more specifically the people, waterways, and properties on 
the navigable waters of the U.S.

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking [CGD09-03-
241], indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. Please submit 
all comments and related material in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying. If you would like to know 
they reached us, please enclose a stamped, self-addressed postcard or 
envelope. We will consider all comments and material received during

[[Page 57617]]

the comment period before issuing any final rule.

Public Meeting

    We do not now plan to hold a public meeting. You may submit a 
request for a meeting by writing to Commander, Ninth Coast Guard 
District (m) at the address under ADDRESSES explaining why one would be 
beneficial. If we determine that one would aid this rulemaking, we will 
hold one at a time and place announced by a later notice in the Federal 
Register.

Background and Purpose

    Terrorist attacks on September 11, 2001, inflicted catastrophic 
human casualties and property damage. These attacks highlighted the 
terrorists' abilities to utilize multiple means in different geographic 
areas thereby increasing their opportunities to maximize destruction.
    Since the September 11, 2001 terrorist attacks on the World Trade 
Center in New York, the Pentagon in Arlington, Virginia and Flight 93, 
the Federal Bureau of Investigation (FBI) has issued several warnings 
concerning the potential for additional terrorist attacks within the 
United States. The threat of maritime attacks is real as evidenced by 
the October 2002 attack on a tank vessel off the coast of Yemen and the 
prior attack on the USS COLE. These attacks manifest a continuing 
threat to U.S. assets as described in the President's finding in 
Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3, 
2002). The President found that the security of the U.S. is endangered 
by the September 11, 2001 attacks and terrorist attacks continue to 
endanger the international relations of the United States. See also 
Continuation of the National Emergency with Respect to Certain 
Terrorist Attacks, (68 FR 53665, September 10, 2003); Continuation of 
the National Emergency With Respect to Persons Who Commit, Threaten To 
Commit, or Support Terrorism, (68 FR 55189, September 18, 2003). The 
references to these Presidential Documents as they appear in this 
interim final rule have updated those referenced in the NPRM (68 FR 
44697). The U.S. Maritime Administration (MARAD) in Advisory 02-07 
advised U.S. shipping interests to maintain a heightened state of alert 
against possible terrorist attacks. MARAD also issued Advisory 03-03 
informing operators of maritime interests of increased threat 
possibilities to vessels and facilities and a higher risk of terrorist 
attacks to the transportation community in the United States. The 
ongoing hostilities in Afghanistan and Iraq have made it prudent for 
U.S. ports and waterways to be on a higher state of alert due to the Al 
Qaeda organization and other similar organizations who have declared 
their intentions to conduct armed attacks on U.S. interests worldwide.
    Therefore, on April 16, 2003, the Coast Guard established a 
temporary RNA within that portion of the Illinois Waterway System 
located within the Ninth Coast Guard District in order to safeguard 
vessels, ports and waterfront facilities from sabotage or terrorist 
acts. The temporary RNA remains in effect and applies to barges loaded 
with certain dangerous cargoes (CDCs) operating on the Illinois 
Waterway System above mile 187.2 to the Chicago Lock on the Chicago 
River at mile 326.7, and to the confluence of the Calumet River and 
Lake Michigan at mile 333.5 of the Calumet River. The RNA affects 
vessels transporting barges loaded with CDCs that if used as weapons of 
terrorism could result in substantial loss of life, property, 
environmental damage, and grave economic consequences. The temporary 
final rule requires operators of barges loading or loaded with CDCs 
within the RNA to periodically report their position and other 
specified information to the IRVMC for protection against sabotage and 
terrorist acts. The temporary final rule published May 2, 2003, (68 FR 
23399) expires on October 31, 2003.
    The Coast Guard has determined that there is a need to continue the 
reporting requirements for barges loaded with CDCs operating on 
Illinois Waterway System and therefore we are issuing an interim rule 
while we continue to consider alternatives to increase maritime domain 
awareness on the Illinois Waterway System within the Ninth Coast Guard 
District. This rule allows the Coast Guard to enhance maritime 
security, protect ports and facilities and high-density population 
centers (metropolitan areas), control vessel traffic, develop 
contingency plans, and enforce regulations.

Discussion of Comments and Changes

    As of September 15, 2003, we received one written comment to the 
NPRM. The comment was addressed to both the Eighth and Ninth Coast 
Guard Districts. Two parts of the comment were focused specifically on 
the Ninth Coast Guard District. We will address those two areas of 
concern first.
    The first concern was that rather than have specific reporting 
points, that operators be permitted to report while within a particular 
segment like what is already permitted in the Eighth Coast Guard 
District. The Ninth Coast Guard District is adopting this 
recommendation so that the reporting system process is identical 
whether you are in the Eighth or Ninth Coast Guard District. The second 
concern requested that we remove two reporting points: the Lockport 
Lock & Dam and the Dresden Lock & Dam. Since vessels are reporting in 
upon entry into the RNA, and upon dropping off or picking up a CDC 
barge from a fleeting area or facility, the Coast Guard will follow 
this recommendation.
    Several other comments were received that were more general in 
nature. Since the Eighth Coast Guard District has a parallel rule, we 
are adopting their responses to those comments to ensure uniformity 
between the Eighth and Ninth District and the requirements of the 
IRVMC. The comment focused generally on 4 concerns: (a) Reporting the 
planned route, (b) notifying the IRVMC 4 hours prior to originating a 
voyage within the RNA with one or more CDC barges, (c) notifying the 
IRVMC upon moving one or more CDC barges from one fleeting area to 
another fleeting area or facility, and (d) reporting information as 
directed by the Coast Guard. Each section of this comment is discussed 
in more detail in the following six paragraphs.
    Planned Route. The one comment we received stated that the 
requirement for submission of a planned route will increase the burden 
upon the mariner while providing no improvement on the information 
already required since point-to-point movements rarely allow for more 
than one route. We agree and have removed the requirement to report the 
planned route because the IRVMC will be receiving periodic updates on a 
CDC barge(s)'s location as the towing vessel operator checks in at 
designated reporting points along the planned route. The requirement to 
submit a report with the name and location of the destination for each 
CDC barge and the estimated time of arrival remains unchanged.
    Four hour advance notification. The one comment we received stated 
a concern regarding the requirement to report information 4 hours 
before originating a voyage within the RNA with one or more CDC barges. 
The comment indicates that fleeting area managers do not always have 4 
hours advance notice of movement between receipt of an order and 
origination of the voyage. The comment suggested the requirement be 
amended to allow fleeting area managers to notify the IRVMC as soon as 
possible after the fleeting area manager receives a request to make up 
a tow or to deliver a CDC

[[Page 57618]]

barge at a terminal. While we agree that in certain cases a fleeting 
area manager will not have sufficient time to make a 4-hour advance 
notification of movement to the IRVMC, this regulation does not require 
fleeting area managers to provide such notification. This regulation 
requires towing vessel operators to notify the IRVMC 4 hours before 
originating a voyage within the RNA with one or more CDC barges. 
However, we believe the conceptual basis of the comment applies to this 
requirement. For example, an operator of a towing vessel without any 
CDC barges operating in the RNA may receive an order to pick up a CDC 
barge. If the towing vessel is in close proximity to where the CDC 
barge is located, the evolution of making up the new tow with the CDC 
barge and originating the voyage may take less than 4 hours. According 
to the existing requirement in the NPRM, the towing vessel operator 
would then qualify as originating a voyage within the RNA with one or 
more CDC barges and as such would be required to provide the IRVMC with 
a notice 4 hours before originating the voyage. The Coast Guard 
understands that delaying the voyage to comply with the 4-hour advance 
notification requirement could negatively affect commercial operations. 
To alleviate this potential problem, we are adding an exception to the 
existing requirement. This exception will permit the towing vessel 
operator to make the required report to the IRVMC as soon as possible 
before originating a voyage in the RNA with one or more CDC barges. 
This exception is valid only if the following conditions exist--
    (a) The evolution of making up a tow with a CDC barge will take 
less than 4 hours before originating a voyage; and
    (b) The towing vessel operator did not receive the order to make up 
a tow with a CDC barge in advance of 4 hours before originating the 
voyage with one or more CDC barges.
    If the previous two conditions exist, the towing vessel operator 
must submit the required report to the IRVMC as soon as possible after 
receiving orders to make up a tow with one or more CDC barges.
    Movement of barges from fleeting area to fleeting area or facility. 
The one comment we received stated that companies routinely move barges 
from one fleeting area to another fleeting area or facility and that 
reporting each of these movements would impose an excessive burden. It 
further states that one company may operate multiple fleeting areas 
within a limited geographic area. The comment recommends that the Coast 
Guard define fleeting areas within a certain geographic area as a 
``single fleet'' and allow movement within that ``single fleet'' to 
occur without reporting each movement to the IRVMC. The purpose of 
knowing the specific location of a CDC barge is to allow for a more 
efficient response to an incident or threatened incident. It is the 
intention of this regulation to give the Coast Guard the necessary 
information to be able to track and have knowledge of the location of 
each CDC barge at all times. Under the existing requirements, we are 
only asking the fleeting area manager to provide limited information 
regarding the movement of a CDC barge from one fleeting area to another 
fleeting area or facility. We are not changing this requirement, 
however, we do feel that definitions are needed for ``fleeting area'', 
``fleet tow boat'', and ``towing vessel''. For the purposes of this 
requirement, the term ``fleeting area'' will be defined to mean any 
fleet, including any facility, located within the area covered by one 
single port. The term ``fleet tow boat'' will be defined to mean any 
size vessel that is used to move, transport, or deliver a CDC barge 
within a fleeting area. The term ``towing vessel'' will be defined to 
mean any size vessel that is used to move, transport, or deliver a CDC 
barge to a fleet or facility that is located in a different port than 
where the voyage originated.
    The following example is provided to illustrate the intention of 
these definitions: A fleeting area manager is required to provide 
notification to the IRVMC of the movement of a CDC barge from fleet 
``A'' located in port ``A'', to fleet ``B'' located in port ``A'' when 
such movement is conducted by a fleet tow boat. If the movement of a 
CDC barge were to occur from fleet ``A'' located in port ``A'', to 
fleet ``Z'' located in port ``Z'', such movement is considered to have 
been done by a towing vessel and the notifications requirements would 
reside with the towing vessel operator when the CDC barge was picked up 
at fleet ``A'' and dropped off at fleet ``Z''.
    When directed by the IRVMC. The one comment we received indicated 
that there was a lack of coordination within the Coast Guard that led 
to mariners having to submit duplicate reports of required information. 
There is a concern that a towing vessel operator may receive multiple 
calls from various government agencies requesting similar information. 
These multiple calls could create an unnecessary distraction for the 
towing vessel operator. The comment requested the Coast Guard clarify 
the information reporting requirement to read ``As directed by the 
IRVMC.'' The published NPRM currently reads ``When directed by the 
IRVMC'' and as such will not be changed. However, we feel it is 
necessary to explain the different types of calls a towing vessel 
operator can expect while transporting one or more CDC barges in the 
RNA. The first type of call would be from the IRVMC for the following 
reasons: (1) Obtaining missing or illegible information, (2) 
investigating missed or inaccurate reports, (3) collecting information 
for the purposes of responding to an incident or threatened incident, 
(4) responding to an increase in the maritime security level, or (5) 
advising the mariner on new or unexpected changes in procedures. This 
list of reasons is not all-inclusive. The second type of call would be 
from the United States Army Corps of Engineers (USACE) requesting 
information from the mariner as the towing vessel approaches a USACE 
controlled lock and dam. As many of the reporting points required by 
this regulation are located at USACE controlled locks and dams, the 
Coast Guard understands that some information provided by the towing 
vessel operator will have to be supplied twice--once to the USACE and 
once to the IRVMC. The Coast Guard and USACE are currently working to 
address the issue of duplicative reporting and are researching methods 
to use existing technology to serve as a single point of collection. 
The third type of call would be from a Coast Guard Captain of the Port 
office for issues pertaining to the coordination of vessel escorts or 
boardings or other marine safety issues. Calls for these purposes are 
unrelated to the information collection requirements outlined by this 
regulation and are necessary for the Coast Guard Captain of the Port to 
meet Coast Guard mission requirements. The final type of call would be 
from a Coast Guard vessel or boarding team located in close proximity 
to the towing vessel for the purposes of conducting law enforcement 
operations or vessel escorts. These types of calls are also unrelated 
to the information collection requirements outlined by this regulation 
and are necessary to meet Coast Guard mission requirements.

Response to Comments Summary

    In response to the received comment the Coast Guard is (1) removing 
the requirement to report the planned route of one or more CDC barges, 
(2) establishing an exception to the 4-hour advance notification for 
originating a voyage in the RNA with one or more CDC barges, (3) 
defining the terms ``fleeting area'', fleet tow boat'', and ``towing 
vessel'' to clarify fleeting area manager reporting requirements, and 
(4)

[[Page 57619]]

explaining the different types of calls a towing vessel operator can 
expect while transporting one or more CDC barges in the RNA.
    Portions of this regulation have been revised to reflect the usage 
of these new definitions. The addition of the new definitions does not 
create any substantial changes. The portions of the regulatory text 
that are affected by these new definitions include the 
``Applicability'', ``Definitions'', and ``Regulations'' sections.
    Company Representative or Dispatcher Making Required Reports. The 
NPRM indicated that a company representative or dispatcher would be 
allowed to report the required information to the IRVMC on behalf of 
the towing vessel operator or fleeting area manager. With the addition 
of the definitions for ``fleet tow boat'' and ``towing vessel'', we 
realized that allowing a company representative or dispatcher to make 
reports on behalf of a towing vessel operator is contrary to the 
intentions of this regulation. The intention of this regulation is to 
provide the Coast Guard with positive reports generated by towing 
vessel operators and fleeting area managers who have direct control 
over CDC barges. Because fleets and facilities typically have multiple 
persons who have direct control over CDC barges, we are allowing a 
fleeting area manager, company representative, or dispatcher to make 
the required reports. In contrast, a towing vessel operator is the only 
person who will have direct control over CDC barges in their tow. As it 
relates to this regulations, we have clarified the definition of 
``towing vessel operator'' to mean the Captain or pilot who is on watch 
on board a towing vessel. The portions of the regulatory text that are 
affected by this clarification include the ``Definitions'' and 
``Regulations'' sections.

Discussion of Rule

    The Coast Guard is establishing a regulated navigation area for the 
Illinois Waterway System above mile 187.2 to the Chicago Lock on the 
Chicago River at mile 326.7, and to the confluence of the Calumet River 
and Lake Michigan at mile 333.5 of the Calumet River. This rule applies 
to: (1) towing vessel operators responsible for one or more CDC barges 
within the regulated area, and (2) fleeting area managers responsible 
for CDC barges in a fleeting area. The terms ``barge'', ``certain 
dangerous cargo or (CDC)'', ``CDC barge'', ``downbound'', ``fleet tow 
boat'', ``fleeting area'', ``Ninth Coast Guard District'', ``towing 
vessel'', ``towing vessel operator'', and ``upbound'' are defined in 
the regulatory section of this rule.
    Towing vessel operators responsible for one or more CDC barges are 
required to report specific information to the IRVMC under the 
following conditions: (1) Upon point of entry into the RNA with one or 
more CDC barges; (2) 4 hours prior to originating a voyage within the 
RNA with one or more CDC barges, except if (a) the evolution of making 
up a tow with a CDC barge will take less than 4 hours before 
originating a voyage, and (b) the towing vessel operator did not 
receive the order to make up a tow with a CDC barge in advance of 4 
hours before originating the voyage with one or more CDC barges, in 
which case the towing vessel operator must submit the required report 
to the IRVMC as soon as possible after receiving orders to make up a 
tow with one or more CDC barges (3) upon dropping off one or more CDC 
barges at a fleeting area or facility; (4) upon picking up one or more 
additional CDC barges from a fleeting area or facility; (5) at 
designated reporting points in paragraph (e) of this section; (6) when 
the estimated time of arrival (ETA) to a reporting point varies by 6 
hours from the previously reported ETA; (7) any significant deviation 
from previously reported information; (8) upon departing the RNA with 
one or more CDC barges; and (9) when directed by the IRVMC.
    Fleeting area managers are required to report specific information 
to the IRVMC under the following conditions: (1) Once daily, report all 
CDC barges within the fleeting area; (2) upon moving a CDC barge within 
a fleeting area by a fleet tow boat; (3) any significant deviation from 
previously reported information; and (4) when directed by the IRVMC.
    A company representative or dispatcher may report the required 
information to the IRVMC on behalf of the fleeting area manager.
    Each report made to the IRVMC by a towing vessel operator or 
fleeting area manager must contain all the information items specified 
in tables 165.921(f) and 165.921(g), respectively.
    Reports must be made to the IRVMC by telephone to (866) 442-6089, 
by fax to (866) 442-6107, or by e-mail to [email protected]. A 
reporting form and e-mail link is available at http://www.uscg.mil/d8/Divs/M/IRVMC.htm.
    The Coast Guard will consider and approve alternative reporting 
methods to meet any reporting requirements if: (1) the request for the 
alternative is submitted in writing to Commander, Ninth Coast Guard 
District (m), 1240 E. Ninth Street, Cleveland, Ohio, 44199-2060; and 
(2) the alternative provides an equivalent level of reporting to that 
which would be achieved by the Coast Guard with the required check-in 
points.
    The Coast Guard encourages the submission of requests for 
alternative reporting methods. It is the Coast Guard's hope that 
companies will embrace current modern technology or future technology 
as it becomes available to automatically report the locations of the 
towing vessels and the CDC barges they are responsible for directly to 
the Coast Guard in real or as close to real time as possible. We 
believe that the development of such systems will significantly reduce 
the burden imposed upon the towing vessel operator and fleeting area 
manager who must submit the reports, as well as those Coast Guard 
personnel who must process those reports.
    Deviation from this rule is prohibited unless specifically 
authorized by the Commander, Ninth Coast Guard District or the IRVMC.

Regulatory Evaluation

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866, Regulatory Planning and Review, and does 
not require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order. It is not ``significant'' under the 
regulatory policies and procedures of the Department of Homeland 
Security (DHS).
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation under the regulatory policies and procedures 
of DHS is unnecessary. We present this Regulatory Evaluation for the 
purposes of information.
    Evaluation. The regulatory baseline for this rule is the existing 
temporary rule. The cost for complying with the rule will differ 
depending on the means used to make a report to the IRVMC and the type 
of report, either an initial report or an update. The cost of the rule 
presented below is based on the average number of reports received by 
the IRVMC in April 2003 and May 2003.

[[Page 57620]]



                                  Estimated Annual Cost and Benefit of the Rule
                                                 [2003 Dollars]
----------------------------------------------------------------------------------------------------------------
                                                                     Cost per        Cost per
                              Item                                 initial call     update call        Total
----------------------------------------------------------------------------------------------------------------
Personnel.......................................................          $9,462         $17,871         $27,333
Operating Expenses..............................................          28,386          53,613          81,999
                                                                 -----------------
    Total.......................................................         $37,848         $71,484        $109,332
----------------------------------------------------------------------------------------------------------------

    This cost estimate assumes: (1) The average merchant mariner's 
hourly rate is $30, (2) the average initial call is 6 minutes, (3) the 
average update call is 2 minutes, (4) the average cost per cell phone 
call is $1.50 per minute, and (5) 15 percent of all responses are 
initial reports to the IRVMC. Therefore, based on 177 respondents, the 
average cost is $618 per CDC barge per year. The reporting requirements 
are necessary to provide immediate, improved security for the public, 
vessels, and U.S. ports and waterways. The requirements do not alter 
normal barge transits. The minimal hardships that may be experienced by 
persons or vessels, as a result of this rule, are necessary to the 
national interest in protecting the public, vessels, and vessel crews 
from the devastating consequences of acts of terrorism, and from 
sabotage or other subversive acts, accidents, or other causes of a 
similar nature.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule will have a significant economic impact on 
a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will 
not have a significant economic impact on a substantial number of small 
entities. This rule will affect the following entities, some of which 
may be small entities: towing vessel operators and fleeting area 
managers responsible for CDCs barges on inland waterways within the 
Ninth Coast Guard District. This RNA will not have a significant 
economic impact on a substantial number of small entities because this 
rule does not require any alteration of barge operations or transits. 
The operational communications required by this RNA do not require 
towing vessel operators or fleeting area managers to obtain new 
equipment and can be made toll free to the IRVMC.
    If you are a small business entity and are significantly affected 
by the regulation, please contact CDR Michael Gardiner or LT Matthew 
Colmer, Project Managers for the Ninth Coast Guard District Commander, 
1240 E. Ninth Street, Cleveland, Ohio 44199-2060, telephone (216) 902-
6045.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we offered to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rulemaking process. Small 
businesses may send comments on the actions of Federal employees who 
enforce, or otherwise determine compliance with, Federal regulations to 
the Small Business and Agriculture Regulatory Enforcement Ombudsman and 
the Regional Small Business Regulatory Fairness Boards. The Ombudsman 
evaluates these actions annually and rates each agency's responsiveness 
to small business. If you wish to comment on actions by employees of 
the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

Collection of Information

    This rule calls for a collection of information under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 CFR 
1320.3(c), ``collection of information'' comprises reporting, 
recordkeeping, monitoring, posting, labeling, and other, similar 
actions. The title and description of the information collection, a 
description of those who must collect the information, and an estimate 
of the total annual burden follow. The estimate covers the time for 
reviewing instructions, searching existing sources of data, gathering 
and maintaining the data needed, and completing and reviewing the 
collection.
    This rule revises an existing OMB-approved collection of 
information (1625-0105). The new collection of information estimate is 
based on data gathered as a result of the information collected under 
the temporary rule and is based on actual reports received by the 
IRVMC, as well as actual observation and tracking, for April 2003 and 
May 2003.
    Title: Regulated Navigation Areas; Reporting Requirements for 
Barges Loaded with Certain Dangerous Cargoes, Inland Rivers, Eighth 
Coast Guard District and the Illinois Waterway, Ninth Coast Guard 
District.
    OMB Control Number: 1625-0105.
    Summary of the Collection of Information: The Coast Guard requires 
position and intended movement reporting, and fleeting operations 
reporting, from barges carrying CDCs in the inland rivers within the 
Eighth and Ninth Coast Guard Districts. This rule amends 33 CFR part 
165 to require:

    Towing vessel operators and fleeting area managers responsible 
for CDC barges must report the following information via toll free 
telephone, toll free fax, or email:
    a. Name of barge and towing vessel;
    b. Name of fleeting area and facility;
    c. Estimated time of arrival (ETA) at fleeting area and 
facility;
    d. Estimated time of departure (ETD) from fleeting area and 
facility;
    e. Upon entry into the covered geographical area;
    f. Four hours prior to originating a voyage with a CDC within 
the RNA, except if (a) the evolution of making up a tow with a CDC 
barge will take less than 4 hours before originating a voyage, and 
(b) the towing vessel operator did not receive the order to make up 
a tow with a CDC barge in advance of 4 hours before originating the 
voyage with one or more CDC barges, in which case towing vessel 
operator shall submit the required report to the IRVMC as soon as 
possible after receiving orders to make up a tow with one or more 
CDC barges;
    g. Upon picking up an additional CDC barge from a fleeting area 
or facility;
    h. Upon dropping off a CDC barge at a fleeting area or facility;
    i. Upon moving a CDC barge within a fleeting area by a fleet tow 
boat;
    j. Once daily, all CDC barges within a fleeting area;
    k. ETA at approximately 90 designated reporting points within 
the covered geographical area;
    l. At any time the ETA to a reporting point varies by 6 hours 
from the previously reported ETA;
    m. Any significant deviation from previously reported 
information;
    n. Upon departing the covered geographical area; and

[[Page 57621]]

    o. When directed by the IRVMC.
    A company representative or dispatcher may report to the IRVMC 
on behalf of the fleeting area manager.

    Need for Information: To ensure port safety and security and to 
ensure the uninterrupted flow of commerce, the Coast Guard is issuing 
regulations requiring position and intended movement reporting and 
fleeting operations reporting from barges carrying CDCs in the inland 
rivers within the Eighth and Ninth Coast Guard Districts.
    Use of Information: The information is required to enhance maritime 
security, protect ports and facilities and high-density population 
centers (metropolitan areas), control vessel traffic, develop 
contingency plans, and enforce regulations. The Coast Guard will use 
the information to maintain continuous maritime domain awareness on the 
inland rivers so that we may respond as appropriate to an actual or 
threatened terrorist action and enhance maritime security by boarding 
and/or escorting CDC barges in the vicinity of high-density population 
areas.
    Description of the Respondents: The respondents are owners, agents, 
masters, towing vessel operators, or persons in charge of barges loaded 
with CDCs or having CDC residue operating on the inland rivers located 
within the Eighth and Ninth Coast Guard Districts.
    Number of Respondents: The existing OMB-approved collection number 
of respondents is 3,505. This rule will decrease the number of 
respondents by 3,328 to a total of 177.
    Frequency of Response: Towing vessel operators moving barges 
carrying CDCs or CDC residue will submit reports as necessary. The 
existing OMB-approved collection annual number of responses is 7,711. 
This rule will increase the number of responses by 13,313 to a total of 
21,024.
    Burden of Response: The existing OMB-approved collection burden of 
response is 15 minutes (0.25 hours)(burden of response is the time 
required to complete the paperwork requirements of the rule for a 
single response). This rule will decrease the burden of response by 9 
minutes (0.15 hours) to a total of 6 minutes (0.10 hours).
    Estimate of Total Annual Burden: The existing OMB-approved 
collection total annual burden is 1,928 hours (total annual burden is 
the time required to complete the paperwork requirements of the rule 
for all responses). This rule will decrease the total annual burden by 
1017 hours to a total of 911 hours.
    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), we have submitted a copy of this rule to the Office of 
Management and Budget (OMB) for its review and approval of the revised 
collection of information. The existing OMB-approved collection (1625-
1505) expires on October 31, 2003.
    We ask for public comment on the collection of information to help 
us determine how useful the information is, whether it can help us 
perform our functions better, whether it is readily available 
elsewhere, how accurate our estimate of the burden of collection is, 
how valid our methods for determining burden are, how we can improve 
the quality, usefulness, and clarity of the information, and how we can 
minimize the burden of collection.
    If you submit comments on the collection of information, submit 
them both to OMB and to the Docket Management Facility where indicated 
under ADDRESSES, by the date under DATES.
    You need not respond to a collection of information unless it 
displays a currently valid control number from OMB. If and when OMB 
approves this revised collection of information, we will publish a 
separate notice in the Federal Register.

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this rule would not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule would not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and would not create an 
environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it would not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Environment

    We have analyzed this rule under Commandant Instruction M16475.1D, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1 paragraph (34)(g), of the instruction, from further 
environmental documentation because this rule is not expected to result 
in any significant environmental impact as described in NEPA. A final 
``Environmental Analysis Check List'' and a final ``Categorical

[[Page 57622]]

Exclusion Determination'' are available where indicated under 
ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Vessels, Waterways.


0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 166 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

0
2. Add Sec.  165.921 to read as follows:


Sec.  165.921  Regulated Navigation Area; Reporting Requirements for 
Barges Loaded with Certain Dangerous Cargoes, Illinois Waterway System 
located within the Ninth Coast Guard District.

    (a) Regulated Navigation Area. The following waters are a regulated 
navigation area (RNA): the Illinois Waterway System above mile 187.2 to 
the Chicago Lock on the Chicago River at mile 326.7 and to the 
confluence of the Calumet River and Lake Michigan at mile 333.5 of the 
Calumet River.
    (b) Applicability. This section applies to towing vessel operators 
and fleeting area managers responsible for CDC barges in the RNA. This 
section does not apply to towing vessel operators responsible for 
barges not carrying CDC barges, or fleet tow boats moving one or more 
CDC barges within a fleeting area.
    (c) Definitions. As used in this section--
    Barge means a non-self propelled vessel engaged in commerce, as set 
out in 33 CFR 160.204.
    Certain Dangerous Cargo or (CDC) includes any of the following:
    (1) Division 1.1 or 1.2 explosives as defined in 49 CFR 173.50.
    (2) Division 1.5D blasting agents for which a permit is required 
under 49 CFR 176.415 or, for which a permit is required as a condition 
of a Research and Special Programs Administration exemption.
    (3) Division 2.3 ``poisonous gas'', as listed in 49 CFR 172.101 
that is also a ``material poisonous by inhalation'' as defined in 49 
CFR 171.8, and that is in a quantity in excess of 1 metric ton per 
barge.
    (4) Division 5.1 oxidizing materials for which a permit is required 
under 49 CFR 176.415 or, for which a permit is required as a condition 
of a Research and Special Programs Administration exemption.
    (5) A liquid material that has a primary or subsidiary 
classification of Division 6.1 ``poisonous material'' as listed in 49 
CFR 172.101 that is also a ``material poisonous by inhalation'', as 
defined in 49 CFR 171.8 and that is in a bulk packaging, or that is in 
a quantity in excess of 20 metric tons per barge when not in a bulk 
packaging.
    (6) Class 7, ``highway route controlled quantity'' radioactive 
material or ``fissile material, controlled shipment'', as defined in 49 
CFR 173.403.
    (7) Bulk liquefied chlorine gas and bulk liquefied gas cargo that 
is flammable and/or toxic and carried under 46 CFR 154.7.
    (8) The following bulk liquids--
    (i) Acetone cyanohydrin,
    (ii) Allyl alcohol,
    (iii) Chlorosulfonic acid,
    (iv) Crotonaldehyde,
    (v) Ethylene chlorohydrin,
    (vi) Ethylene dibromide,
    (vii) Methacrylonitrile,
    (viii) Oleum (fuming sulfuric acid), and
    (ix) Propylene Oxide.
    CDC barge means a barge containing CDCs or CDC residue.
    Downbound means the tow is traveling with the current.
    Fleet tow boat means any size vessel that is used to move, 
transport, or deliver a CDC barge within a fleeting area.
    Fleeting area means any fleet, including any facility, located 
within the area covered by one single port.
    Inland River Vessel Movement Center or (IRVMC) means the Coast 
Guard office that is responsible for collecting the information 
required by this section.
    Ninth Coast Guard District means the Coast Guard District as set 
out in 33 CFR 3.45-1.
    Towing vessel means any size vessel that is used to move, 
transport, or deliver a CDC barge to a fleet or facility that is 
located in a different port than where the voyage originated.
    Towing vessel operator means the Captain or pilot who is on watch 
on board a towing vessel.
    Upbound means the tow is traveling against the current.
    (d) Regulations. The following must report to the Inland River 
Vessel Movement Center (IRVMC):
    (1) The towing vessel operator responsible for one or more CDC 
barges in the RNA must report all the information items specified in 
table 165.921(f), in paragraph (f) of this section, to the IRVMC:
    (i) Upon point of entry into the RNA with one or more CDC barges;
    (ii) Four hours before originating a voyage within the RNA with one 
or more CDC barges, except if the evolution of making up a tow with a 
CDC barge will take less than 4 hours before originating a voyage, and 
the towing vessel operator did not receive the order to make up a tow 
with a CDC barge in advance of 4 hours before originating the voyage 
with one or more CDC barges, in which case the towing vessel operator 
shall submit the required report to the IRVMC as soon as possible after 
receiving orders to make up a tow with one or more CDC barges;
    (iii) Upon dropping off one or more CDC barges at a fleeting area 
or facility;
    (iv) Upon picking up one or more additional CDC barges from a 
fleeting area or facility;
    (v) At designated reporting points, set forth in paragraph of this 
section;
    (vi) When the estimated time of arrival (ETA) to a reporting point 
varies by 6 hours from the previously reported ETA;
    (vii) Any significant deviation from previously reported 
information;
    (viii) Upon departing the RNA with one or more CDC barges; and
    (ix) When directed by the IRVMC.
    (2) The fleeting area manager responsible for one or more CDC 
barges in the RNA must report all the information items specified in 
table 165.921(g), in paragraph (g) of this section, to the IRVMC:
    (i) Once daily, report all CDC barges within the fleeting area;
    (ii) Upon moving one or more CDC barges within a fleeting area by a 
fleet tow boat;
    (iii) Any significant deviation from previously reported 
information; and
    (iv) When directed by the IRVMC.
    (3) Reports required by this section may be made by a company 
representative or dispatcher on behalf of the fleeting area manager.
    (4) Reports required by this section must be made to the IRVMC 
either by telephone to (866) 442-6089, by fax to (866) 442-6107, or by 
e-mail to [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 this paragraph (e).
    (1) Illinois River (ILR) Upbound, at Mile Markers (M) and when 
Departing Lock & Dam (L&D)--
    (i) M 187.2 (Southern Boundary MSO Chicago AOR),

[[Page 57623]]

    (ii) M 303.5 Junction of Chicago Sanitary Ship Canal and Calumet-
Sag Channel,
    (iii) M 326.4 Thomas S. O'Brien L&D, Calumet River,
    (iv) M 333.5 Confluence of Calumet River and Lake Michigan, and
    (v) M 326.7 Chicago L&D, Chicago River.
    (2) Illinois River (ILR) Downbound Reporting Points, at Mile 
Markers (M) and when Departing Lock & Dam (L&D)--
    (i) M 326.7 Chicago L&D, Chicago River,
    (ii) M 333.5 Confluence of Calumet River and Lake Michigan,
    (iii) M 326.4 Thomas S. O'Brien L&D, Calumet River,
    (iv) M 303.5 Junction of Chicago Sanitary Ship Canal and Calumet-
Sag Channel, and
    (v) M 187.2 (Southern Boundary MSO Chicago AOR).
    (f) Information to be reported to the IRVMC by towing vessel 
operators. With the exception noted in paragraph (d)(1)(ii) of this 
section, towing vessel operators responsible for one or more CDC barges 
in the RNA must report all the information required by this section as 
set out in table 165.921(f) of this paragraph.

                                  Table 165.921(F).--Information To Be Reported to the IRVMC by Towing Vessel Operators
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                               Name and
                                                                                               Estimated     location of
                                                                                                time of     destination of                Estimated time
                                              24-hour     Name of    Barge(s)    Type, name    departure      CDC barge                     of arrival
                                              contact     vessel     name and    and amount       from      (fleeting area   Reporting    (ETA) to next
                                              number      moving     official      of CDC       fleeting    or facility),      point     reporting point
                                                         barge(s)     number       onboard      area or       including                  (If applicable)
                                                                                                facility    estimated time
                                                                                                              of arrival
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Upon point of entry into the RNA with           X           X           X             X   ...........               X            X                X
 a CDC barge..............................
(2) 4 hours before originating a voyage             X           X           X             X            X                X   ...........               X
 within the RNA with one or more CDC
 barges; but see exception in paragraph
 (d)(1)(ii) of this section...............
(3) Upon dropping off one or more CDC       ..........          X           X
 barges at a fleeting area or facility....
(4) Upon picking up one or more additional  ..........          X           X             X
 CDC barges from a fleeting area or
 facility.................................
(5) At designated reporting points in       ..........          X           X         (\1\)   ...........           (\1\)            X                X
 165.921(e)...............................
(6) When ETA to a reporting point varies    ..........          X       (\1\)         (\1\)   ...........  ...............  ...........               X
 by 6 hours from previously reported ETA..
(7) Any significant deviation from                  X           X           X             X            X                X            X                X
 previously reported information (all that
 apply)...................................
(8) Upon departing the RNA with a CDC       ..........          X           X   ............  ...........  ...............           X
 barge (s)................................
(9) When directed by the IRVMC............          X           X           X             X            X                X            X               X
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ If changed.

    (g) Information to be reported to the IRVMC by fleeting area 
managers. Fleeting area managers responsible for one or more CDC barges 
in the RNA must report the information required by this section as set 
out in table 165.921(g) to this paragraph.

              Table 165.921(G).--Information To Be Reported to the IRVMC by Fleeting Area Managers
----------------------------------------------------------------------------------------------------------------
                                                                                                 Location of CDC
                                              24-hour contact   Barge(s) name    Type, name and  barge (fleeting
                                                   number        and official    amount of CDC       area or
                                                                    number          onboard         facility)
----------------------------------------------------------------------------------------------------------------
(1) Once daily, all CDC barges in a fleeting               X                X                X                X
 area.......................................
(2) Upon moving one or more CDC barges        ...............               X                X                X
 within a fleeting area by a fleet tow boat.
(3) Any significant deviation from                         X                X                X                X
 previously reported information (all that
 apply).....................................
(4) When directed by the IRVMC..............               X                X                X                X
----------------------------------------------------------------------------------------------------------------


[[Page 57624]]

    (h) Alternative reporting. The Ninth Coast Guard District Commander 
may consider and approve alternative methods to be used by a reporting 
party to meet any reporting requirements if--
    (1) The request is submitted in writing to Commander, Ninth Coast 
Guard District (m), 1240 E. Ninth Street, Cleveland, Ohio, 44199-2060; 
and
    (2) The alternative provides an equivalent level of the reporting 
that which would be achieved by the Coast Guard with the required 
check-in points.
    (i) Deviation from this section is prohibited unless specifically 
authorized by the Commander, Ninth Coast Guard District or the IRVMC.

    Dated: September 29, 2003.
Ronald F. Silva,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 03-25296 Filed 10-1-03; 3:55 pm]
BILLING CODE 4910-15-P