[Federal Register Volume 75, Number 222 (Thursday, November 18, 2010)]
[Rules and Regulations]
[Pages 70595-70604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28993]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

46 CFR Part 45

[Docket No. USCG-1998-4623]
RIN 1625-AA17


Limited Service Domestic Voyage Load Lines for River Barges on 
Lake Michigan

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a special load line regime for 
certain unmanned dry-cargo river barges to be exempted from the normal 
Great Lakes load line assignment while operating on Lake Michigan. 
Depending on the route, eligible barges may obtain a limited domestic 
service load line assignment or be conditionally exempted from any load 
line assignment at all. This special load line regime allows river 
barges operating under safe conditions to directly transport non-
hazardous cargoes originating at inland river ports as far as Milwaukee 
and Muskegon, resulting in significant cost savings.

DATES: This final rule is effective December 20, 2010.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-1998-4623 and are available for inspection or 
copying at the Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays. You may also find this 
docket on the Internet by going to http://www.regulations.gov, 
inserting USCG-1998-4623 in the ``Keyword'' box, and then clicking 
``Search.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or e-mail Mr. Thomas Jordan, Office of Design and Engineering 
Standards, Naval Architecture Division (CG-5212), Coast Guard; 
telephone 202-372-1370, e-mail <a href="/cdn-cgi/l/email-protection#aefac6c1c3cfdd80ea80e4c1dccacfc0eedbddcdc980c3c7c2"><span class="__cf_email__" data-cfemail="6c380403010d1f42284226031e080d022c191f0f0b42010500">[email protected]</span></a>. If you have 
questions on viewing or submitting material to the docket, call Ms. 
Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-
9826.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations
II. Regulatory History
III. Basis and Purpose
IV. Background
    A. Initial Request From the Port of Milwaukee
    B. Risk Assessment of the Milwaukee Route
    C. Interim Rule and Conditional Exemption
    D. Subsequent Operational Experience
    E. Coast Guard Oversight and Concerns
V. Discussion of Comments and Changes
    A. Discussion of Interim Rule (IR) Changes
    B. Discussion of Interim Rule (IR) Comments
VI. Regulatory Analyses
    A. Regulatory Planning and Review
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates Reform Act
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards
    M. Environment

I. Abbreviations

ABS American Bureau of Shipping
COI Collection of Information
DHS Department of Homeland Security
HazMat Hazardous Material
HP Horsepower
IR Interim Rule
ITB Integrated tug/barge
MarAd (United States) Maritime Administration
MSO Marine Safety Office
MSU Marine Safety Unit
NEPA National Environmental Policy Act of 1969
NPRM Notice of proposed rulemaking
NTTAA National Technology Transfer and Advancement Act
OMB Office of Management and Budget
OCMI Officer in Charge, Marine Inspection
SCA Small Craft Advisory
Stons Short tons
VHF Very High Frequency

II. Regulatory History

    On May 29, 1992, the Coast Guard published a notice in the Federal 
Register (57 FR 22663) establishing a limited service domestic load 
line route on western Lake Michigan between Chicago, IL (Calumet 
Harbor), and Milwaukee, WI, and authorizing the American Bureau of 
Shipping (ABS) to issue load line certificates accordingly. The notice 
also requested public comment. On September 21, 1992, we published a 
follow-up notice (57 FR 43479) discussing the public comments that we 
received, and making minor revisions to the requirements.
    On March 31, 1995, we published a notice in the Federal Register 
(60 FR 16693) establishing a second route along the east side of Lake 
Michigan between Chicago, IL, and St. Joseph, MI. In the notice, we 
specified that the lead barge in the tow must have a raked bow, but 
allowed the initial load line survey of barges that were less than 10 
years old to be conducted afloat.
    On September 28, 1995, we published a notice in the Federal 
Register (60 FR 50234) removing the raked bow requirement.
    On August 26, 1996, we published a notice in the Federal Register 
(61 FR 43804) extending the St. Joseph route farther up the east side 
of Lake Michigan to Muskegon, MI.
    On November 2, 1998, we published a notice of proposed rulemaking 
(NPRM) in the Federal Register titled ``Limited Service Domestic Voyage 
Load Lines for River Barges on Lake Michigan'' (63 FR 58679). This NPRM 
proposed to incorporate the above-described Lake Michigan load line

[[Page 70596]]

provisions into the Great Lakes load line regulations in 46 CFR part 
45.
    On December 28, 1998, we published a follow-up notice that extended 
the comment deadline to March 4, 1999 (63 FR 71411). We received 51 
letters commenting on the proposed rule. No public hearing was 
requested and none was held.
    On April 23, 2002, we published an interim rule (IR) with request 
for comments (67 FR 19685), which established the load line regulations 
for river barges on Lake Michigan (i.e., the special service load lines 
for the St. Joseph and Muskegon routes, and the conditional exemption 
regime for the Milwaukee route) in 46 CFR 45.171 through 45.197. These 
interim regulations have been in effect since 2002 and are being 
finalized by this final rule.

III. Basis and Purpose

    The origin of this rulemaking dates back to a request from the Port 
of Milwaukee in 1991 to establish a special load line provision that 
would allow river barges to transit on Lake Michigan between Chicago 
(Calumet Harbor) and Milwaukee. The Coast Guard subsequently received a 
request to establish a similar route on the eastern side of Lake 
Michigan to Muskegon, MI.
    The Coast Guard initially established these special routes via non-
regulatory notices published in the Federal Register. However, it was 
eventually determined that these notices needed to be formally 
incorporated with the Great Lakes load line regulations of 46 CFR part 
45. The rulemaking was initiated with publication of the NPRM on 
November 2, 1998.
    A vessel may be granted an exemption from load line requirements by 
alternative means under the provisions of 46 U.S.C. 5108. The 
exemptions in this rule are specifically authorized under 46 U.S.C. 
5108(a)(2). The provisions require regulations and a finding of good 
cause for the exemption.
    As prescribed in 46 U.S.C. 5108(a)(2), the Coast Guard determines 
that good cause exists for granting a load line exemption for the 
Milwaukee route as specified in these final regulations. This 
determination is based on the relatively short transit, limitations on 
the distance offshore and forecasted weather conditions, the 
availability of nearby harbors to seek safe refuge, registration and 
self-examination by the barge owners and tow vessel operators, 
limitations on the number of barges in the tow, the requirement that 
the pre-departure inspection must ensure that all weathertight and 
watertight closures are operating properly, and limitations on the age 
of the barges to be used on the route.

IV. Background

    Before the establishment of this special load line regime for Lake 
Michigan, barge cargoes originating at inland river ports and destined 
for Lake Michigan ports had to be transferred to a Great Lakes load-
lined vessel at Calumet Harbor in Chicago. This transshipment was 
necessary because the existing load line regulations did not allow 
vessels onto the Great Lakes without a Great Lakes load line; river 
barges typically do not meet all the requirements for unrestricted 
service on the Great Lakes.
    The only exception to this has been an exemption for certain river 
barges operating between Chicago, IL, and Burns Harbor, IN, as provided 
in 46 CFR 45.171-45.177.

A. Initial Request From the Port of Milwaukee

    In January 1991, the Port of Milwaukee asked the Coast Guard to 
explore the possibility of establishing a relaxed domestic load line 
that would allow river barges to operate along the western shore of 
Lake Michigan between Chicago and Milwaukee. Later that year, a barge 
company made a similar request for an eastern Lake Michigan route 
between Chicago, IL, and Muskegon, MI. The motivation for these route 
requests was economic: River barges offer relatively low costs per ton-
mile to move cargo and can therefore deliver cargoes to the Lake ports 
less expensively than can other modes of transportation.
    The American Bureau of Shipping (ABS), the Coast Guard, and 
industry worked together to determine the appropriate operational 
restrictions and other requirements that would allow river barges to 
safely operate on Lake Michigan. In 1992, a special limited service 
domestic voyage load line regime was implemented for the Milwaukee 
route. A similar regime was established in 1996 for the Muskegon route.
    Initially, 30 barges obtained the special load line and began 
service between Chicago and Milwaukee. From 1993 to 1996, more than 300 
barge trips were made, delivering approximately 502,000 tons of grain, 
animal feed, steel, machinery, graphite, aggregate, and other 
materials. However, the cost and logistics of managing a relatively 
small number of load-lined barges over a large river system worked 
against the economics of this service and, when the original barges 
were sold in 1996, the new owner discontinued the Milwaukee service. 
Over subsequent years, no other barge operators pursued this special 
load line regime.
    Meanwhile, the Coast Guard moved ahead with plans to formally 
incorporate the special load line regime into Federal regulations and, 
on November 2, 1998, published an NPRM (63 FR 58679). In its response 
to the NPRM, industry argued that the cost of obtaining the special 
load line was still prohibitive and discouraged barge operators from 
entering into this service. Industry representatives requested that a 
risk assessment be conducted to determine if a load line exemption 
could be developed for the Milwaukee route.

B. Risk Assessment of the Milwaukee Route

    A risk assessment group was established, comprised of interested 
parties representing towboat and barge operators, port authorities, the 
Coast Guard, the U.S. Maritime Administration (MarAd), and port-related 
businesses, such as terminal operators and shippers. The group met 
twice, once on September 21, 2000, and again on November 9, 2000, to 
discuss various issues. Stakeholders submitted additional comments to 
the risk assessment group. The group compiled its memos, letters, and 
other documents into a report, ``Risk Assessment for River Barges 
Operating between Chicago, IL and Milwaukee, WI,'' dated September, 
2001, which is available in the docket.
    Because the cost of the load line assigned by ABS was perceived as 
a major economic obstacle, the risk assessment group focused on how 
that cost could be reduced or eliminated in ways such as ``self-
certification'' by a barge owner (similar to the existing self-
registration requirements for barge operators on the Burns Harbor 
route). The group made several important findings:
    <bullet> It is standard practice for the barge-building shipyards 
to build all new barges in accordance with ABS River Rules;
    <bullet> New barges are not likely to seriously deteriorate during 
the first 7 to 10 years of service;
    <bullet> Marine weather forecasting for the Great Lakes has 
improved since the Milwaukee route was first established in 1992; and
    <bullet> A towboat operator with extensive experience on the 
Chicago/Milwaukee route affirmed the viability of Waukegan, IL, and 
Kenosha, WI, as ports-of-refuge.
    On the basis of these findings, the group recommended that 
relatively new barges (those under 10 years of age)

[[Page 70597]]

should be exempted from the load line requirement.

C. Interim Rule and Conditional Exemption

    On the basis of the Risk Assessment, the Coast Guard published the 
IR on April 23, 2002 (67 FR 19685), that established the conditional 
load line exemption for the Chicago/Milwaukee route and the special 
service load lines for the St. Joseph and Muskegon routes.
    The conditional load line exemption regime principally relies on 
self-compliance by the barge operators, who are allowed great 
flexibility in selecting non-load-lined river barges for service on 
that route, provided that the barges meet certain age and condition 
requirements and are registered with the Coast Guard Marine Safety Unit 
(MSU), Chicago. The tows are limited to ``fair weather only'' 
conditions.
    At this time, the IR has been in effect for 8\1/2\ years, and has 
fostered a modest but economically beneficial level of commercial 
activity for Milwaukee (chiefly in grain shipments and transport of 
oversized industrial equipment).

D. Subsequent Operational Experience

    On the afternoon of August 7, 2003, a two-barge tow loaded with 
wheat departed from Milwaukee and traveled southbound for Chicago. 
Although the 48-hour weather forecast was within allowable limits, the 
tow encountered unexpectedly rough seas. Because the prevailing weather 
conditions were from the north, the towboat captain decided to continue 
southwards rather than turn back into rough seas, and shifted the 
barges to a towline. During the night, the barges were observed taking 
on water and listing. By morning, one barge was listing heavily with 
only a foot of freeboard. The captain decided to head to Waukegan for 
shelter, but as the tow was making the turn, one of the barges 
nosedived into the waves and broke free of the tow. This barge 
eventually sank in 117 feet of water approximately 4.7 miles offshore 
from Waukegan. The surviving barge was brought safely into Waukegan 
with significant flooding in several void compartments. The subsequent 
Coast Guard investigation determined that:
    <bullet> Each barge was operated by a different company. Although 
both barge operators submitted the required barge registrations prior 
to departing Milwaukee, there were no previous registrations on record 
for their original northbound voyages from Chicago. Therefore, the 
Coast Guard initiated civil penalty proceedings against both barge 
operators for operating the barges without a valid load line exemption;
    <bullet> Inspection of the surviving barge revealed that 44 of the 
48 hatch securing devices (dogs) on the void hatch covers were either 
seized or broken. Not one of the barge's 12 void spaces had a 
functioning weathertight cover. A flooded stability analysis of the 
barge that sank determined that its voids must have been similarly 
compromised, since the barge should not have sunk if its voids had been 
dry. Therefore, the Coast Guard initiated civil penalty proceedings 
against both barge operators for falsely declaring on the registrations 
that the barges met all the required conditions for the load line 
exemption; and
    <bullet> Although the towboat captain inspected the barges prior to 
departure (as required) and noticed that several of the covers were not 
operating properly, he proceeded with the voyage anyway. The Coast 
Guard initiated Suspension and Revocation proceedings against the 
captain's license.
    Although the above-described incident resulted in a sunken barge 
and lost cargo, the Coast Guard views it as an overall confirmation of 
the environmental safety provisions incorporated in the exemption 
regime. The barge sank because it was clearly not up to the 
seaworthiness standard required by the regulations. Despite this, 
however, there was no adverse environmental impact since the grain 
cargo did not constitute a hazardous spill. Also, the tug and surviving 
barge found shelter in Waukegan as contemplated by the risk assessment 
(the three-barge tow limitation ensures that tows can be accommodated 
in the ports-of-refuge along the Milwaukee route). From this, the Coast 
Guard concludes that the current exemption requirements provide an 
adequate level of safety if properly complied with.

E. Coast Guard Oversight and Concerns

    As discussed in the IR, the Coast Guard reviewed barge activity on 
Lake Michigan with three particular concerns in mind. These concerns, 
and our conclusions, are as follows:
    (1) Industry compliance with the conditions of the load line 
exemption (such as barge registration, pre-departure inspections, 
logbook entries, etc.).
    The load line exemption regime depends on self-compliance by 
towboat operators and barge operators, with limited Coast Guard 
oversight. However, there is evidence that barge operators are not 
fully complying with the conditions of exemption, especially the 
registration requirements. As noted in the casualty discussion above, 
neither barge had been registered for its upbound voyage to Milwaukee. 
Conversely, MSU Chicago reported that some operators have 
``registered'' their barges by submitting lengthy lists of dozens of 
barges in their fleet. Such wholesale submittals cannot accurately 
reflect a proper inspection of each barge on the list. The Coast Guard 
has conducted spot-checks of barge names in Milwaukee against 
registration records in Chicago, and will continue to monitor 
registration compliance. However, if self-compliance is found to be 
unreliable, we may implement other compliance measures, such as third-
party verification.
    (2) The material condition of the barges.
    The interim regulations allow barges up to 10 years of age to 
participate in the load line exemption regime. This age limit is based 
on the assumption that barges in freshwater service will not 
deteriorate so badly in 10 years as to render them unseaworthy for Lake 
Michigan voyages under fair weather conditions. The 2003 casualty 
revealed that although this might be true for the hull structure, it is 
not necessarily true for weathertight closures (i.e., hatch covers, 
gaskets, and dogs).
    Consequently, we are revising the regulations to clarify that all 
weathertight and watertight closures must be verified to be in working 
condition as part of the barge registration (by the barge operator) and 
the pre-departure inspection (by the towboat operator). This 
clarification is intended to ensure that the towing vessel master is 
fully aware of his responsibilities, already in the regulations, to 
verify the watertight integrity of the barge(s) prior to departure. If 
these verification procedures still do not prove to be effective, we 
may review and revise these regulations in the future as necessary.
    (3) The number of tows on Lake Michigan at any given time.
    The Coast Guard is concerned that participation in the load line 
exemption regime might grow so large that the number of barges en route 
between Chicago and Milwaukee on any given day will exceed the capacity 
of the ports-of-refuge (Kenosha and Waukegan) to accommodate them, 
should weather conditions deteriorate unexpectedly. A review of vessel 
traffic data from the Port of Milwaukee indicates that 43 river barges 
called at the port in 2002 (the first year of the exemption regime). In 
2004, the number peaked at 91 barges. Since then, the level of activity 
has dropped: 36 barges in 2006 and 40

[[Page 70598]]

barges in 2007 (the latest year for which data is available). The bulk 
of cargo movements has been outbound grain, although some industrial 
equipment has been transported as well. The current level of barge 
activity is not yet a concern; however, we may establish a voyage 
coordination program at some future time if we deem it necessary.
    (4) The use of Coast Guard resources.
    The amount of enforcement resources the Coast Guard has dedicated 
to investigations of oftentimes avoidable marine casualties and the 
resulting penalty proceedings, and to ensuring that operators are in 
compliance with the exemption regime, is considerable. The extent of 
our involvement in these efforts goes against our regulatory goal of 
relying on self-compliant operators. We will continue to monitor barge 
activity on Lake Michigan. However, we may further amend the exemption 
regime in the future if we feel it is necessary to do so.

V. Discussion of Comments and Changes

A. Discussion of Interim Rule (IR) Changes

    The Coast Guard has made the following changes to the regulations 
in 46 CFR 45.171 through 45.197 established in the IR based upon 
consideration of comments received during the rulemaking and to clarify 
existing requirements:
    Section 45.171 Purpose: In paragraph (c), Table 45.171 has been 
revised to reflect the changes in this final rule, discussed below.
    Paragraph (d) has been added to clarify that the provisions of this 
subpart pertain only to load line regulations, and do not exempt the 
participating barges from other applicable regulations (such as the 
documentation requirements of 46 CFR part 67). Although Certificates of 
Documentation are not required for barges operating on U.S. rivers, 
they are required for all vessels of 5 gross tons or more that operate 
on the Great Lakes. This requirement, therefore, applies to river 
barges operating under the provisions of 46 CFR part 45.
    Section 45.173 Eligible barges: Paragraph (e) has been added 
stating that weathertight and watertight closures must be in proper 
working condition. This addition clarifies the existing requirement in 
Sec.  45.191(b)(5) that manhole covers be secured watertight as part of 
the pre-departure inspection.
    Section 45.175 Applicable routes: This section has been revised to 
clarify that intermediate ports are allowed on the applicable routes.
    Section 45.181 Load line exemption requirements for the Burns 
Harbor and Milwaukee routes: Paragraph (a) has been revised to reflect 
the Coast Guard's organizational re-designation of Marine Safety 
Offices (MSOs), which includes the Officer in Charge, Marine Inspection 
(OCMI), as Marine Safety Units (MSUs). It also updates the MSU mailing 
address.
    Paragraph (b)(1) has been revised to require the official 
documentation number of the barge in order to provide better 
identification of the vessel.
    Section 45.185 Tow limitations: Paragraph (b) has been revised to 
emphasize the current requirement that the maximum number of barges on 
the Milwaukee, St. Joseph, and Muskegon routes is three. This 
limitation is necessary because of the limited dockage at the 
intermediate ports of refuge and the possibility that more than one tow 
might need to seek shelter at the same port.
    Paragraph (c) now clarifies that the 5-mile limit applies to the 
tow as a whole, not just to the barges.
    Section 45.187 Weather limitations: Because hull construction of 
river barges is not robust enough to operate on Lake Michigan under all 
weather conditions, river barges cannot operate under adverse weather 
conditions. The weather limits as written in the interim regulations, 
however, were either subjective (i.e., ``fair weather only'' as decided 
by the towing vessel master) or a complex set of limiting wind speed/
directions and wave heights. These limits are now being simplified by 
establishing Small Craft Advisory (SCA) conditions as the limiting 
adverse weather condition. The National Weather Service issues special 
Great Lakes nearshore marine forecasts that cover all coastal lake 
waters within 5 miles of shore (more information can be found at http://www.nws.noaa.gov/om/marine/zone/usamz.htm). Lake Michigan nearshore 
SCAs are generally based on wind speeds of 20 knots and 4-foot waves, 
but also take into account wave conditions that will develop during the 
forecast period based on wind direction. The Coast Guard believes that 
these nearshore forecasts provide a clear, unequivocal ``fair weather'' 
threshold to towing vessel captains when reviewing weather conditions 
along the route as they prepare to sail or while they are underway. The 
original weather regulations in this section have been revised 
accordingly:
    Paragraph (a) now establishes SCA conditions as the limiting 
adverse weather condition for all routes.
    Paragraph (b) establishes that ice conditions that imperil the tow 
or impede its access into a port of refuge are also considered to be 
adverse weather conditions.
    Section 45.191 Pre-departure requirements: Paragraph (a) has been 
revised by removing the original requirement to contact the dock 
operator at the destination port and replacing it with the requirement 
that the towing vessel master must check the Lake Michigan Nearshore 
Marine Forecast and confirm that adverse weather conditions (i.e., SCAs 
or ice conditions) are not developing.
    Paragraph (b)(5) has been revised to clarify that the pre-departure 
inspection must confirm that hatch and manhole dogs are in proper 
working condition and that all covers are closed and secured, as 
discussed above.
    Sections 45.183, 45.193, and 45.197 have been revised for grammar 
and other non-substantive reasons.

B. Discussion of Interim Rule (IR) Comments

    The IR requested public comment on the interim regulations. Only 
two comments were submitted, both from the same commenter.
    (1) The first comment opposed the Chicago/Milwaukee load line 
exemption because it eliminates third-party inspection and verification 
(such as by an ABS surveyor) of a barge's material condition.
    The commenter also felt that there were other items in the interim 
regulations that should be changed; namely that the requirement for 
pre-departure verification of sufficient docking space should include 
Waukegan and Kenosha harbors, and that the special equipment and 
operational plan requirements should also be applied to the Milwaukee 
route.
    With respect to the third-party verification issue, the Coast Guard 
recognizes the value of such verification, especially where the 
shipboard inspection is relatively infrequent (e.g., once a year) and 
involves numerous watertight and weathertight closures (e.g., piping 
penetrations of the hull, hatch and ventilation covers, doors, etc.). 
When inspecting such closures, professional judgment must be used when 
evaluating their fitness for service until the next annual inspection. 
However, river barges are simpler vessels, with fewer weathertight 
closures and watertight voids to inspect. We believe that the pre-
departure inspection before each

[[Page 70599]]

voyage by the towboat master can provide sufficient verification of 
weathertight integrity for the short-haul, fair-weather transit on Lake 
Michigan. As explained elsewhere in this rule, we have increased 
certain inspection and material condition requirements in response to a 
marine casualty in 2003, and we reserve our right to revise the 
exemption regime, including imposition of third-party verification, if 
barge operators do not comply with these inspection measures.
    With respect to the commenter's suggestion that pre-departure 
verification of sufficient docking space should include Waukegan and 
Kenosha harbors, we do not believe that this is necessary at this 
point, but we may implement it in the future if necessary.
    (2) The second comment (from the same commenter) included a summary 
from a casualty report involving an integrated tug/barge (ITB) on Lake 
Michigan in October 2000. This incident was separate from the sinking 
casualty discussed elsewhere in this rule. The incident occurred under 
storm conditions with 12- to 15-foot waves, during which two vessels 
bumped into each other during an emergency disconnect from the notch, 
causing serious hull damage to both vessels. The commenter cited this 
as an example of the ``extreme variableness'' of weather in lower Lake 
Michigan, and reiterated concern for the safety of tows with barges.
    The ITB mentioned above sailed under marginal weather conditions, 
even for load-lined vessels. As explained previously in this rule, we 
are now establishing SCA conditions, as issued in National Weather 
Service Nearshore Marine Forecasts for Lake Michigan, as the limiting 
weather condition. While establishing SCA conditions does not guarantee 
that weather conditions exceeding the forecast will not occur, we 
believe that the SCA forecast is the best and most consistent benchmark 
for weather prediction, and should generally keep the tow out of 
extreme conditions.

VI. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

A. Regulatory Planning and Review

    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. A final Regulatory Assessment follows:
    This rule finalizes the requirements of the interim rule where 
eligible barges may qualify for either a limited domestic service 
voyage load line (Burns Harbor route, St. Joseph route, and Muskegon 
route), or a conditional load line exemption (Milwaukee route). Under 
this final rule, river barge owners will continue to be able to take 
part in the load line regime. River barge owners that seek either a 
Great Lakes limited service load line or a conditionally exempted load 
line will continue to incur the minor costs associated with obtaining a 
certificate.
    This final rule also revises existing load line regulations in 46 
CFR 45.171 through 45.197 pertaining to certain dry-cargo river barges 
operating on Lake Michigan. The regulatory changes add clarifying 
language to the affected sections, including:
    <bullet> A requirement that weathertight and watertight closures 
must be in proper working condition and that pre-departure inspection 
must confirm that hatch and manhole dogs are in proper working 
condition and that all covers are closed and secured.
    <bullet> The establishment of SCA conditions and ice conditions 
that imperil the tow or impede its access to a port of refuge as the 
limiting adverse weather condition for all routes.
    The applicable barges that operate on Lake Michigan are currently 
required under the IR to conduct a pre-departure inspection. This final 
rule clarifies that confirmation that hatch and manhole dogs are in 
proper working condition and that all covers are closed and secured 
should be part of the pre-departure inspection. A thorough pre-
departure inspection should already include these activities. As such, 
the clarification should not result in new costs to barge owners who 
take part in the load line regime.
    The current IR restricts operation of barges during adverse weather 
conditions, but either leaves the determination to the towing vessel 
master or involves a complex set of limiting wind speed/directions and 
wave heights. This final rule simplifies the determination by 
establishing SCA conditions as the limiting adverse weather condition. 
We do not have any information to indicate that using the SCA will 
result in any additional costs to barge owners and may, in fact, reduce 
ambiguity.
    The remaining changes are administrative or clarifications and 
would not result in additional costs.
Affected Population
    Based on industry information, about 35 barges annually have taken 
part in the load line exemption regime since 2002, and this number has 
remained fairly constant.
Costs
    Barge owners who seek a conditional exemption must submit a one-
time registration to the Coast Guard, and barge owners who seek a 
limited load line exemption must complete an initial survey letter and 
obtain a limited service certificate.
    Based on data in the existing collection of information, ``Plan 
Approval and Records for Load Lines,'' OMB Control Number 1625-0013, we 
estimate the preparation time for the application of conditional 
exemption and submission to the Coast Guard to be about 2 hours. We 
expect someone at the managerial level will prepare the conditional 
exemption application at a fully loaded labor rate of $83/hour. A 
managerial level employee of the barge company is necessary to perform 
this duty because this person must sign the application in order to 
certify the barge owner or operator will maintain the operational 
condition of its barges. We estimate the cost for a single barge owner 
or operator to prepare a conditional exemption application to be about 
$166 (2 hours x $83 fully loaded labor rate/hour).\1\ We estimate that 
owners or operators of about 30 barges annually will seek conditional 
exemptions for a continued annual cost of about $4,980 ((2 hours x $83 
fully loaded labor rate/hour) x 30 barges annually).
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    \1\ Source for time and labor rate: Collection of Information, 
OMB Control Number 1625-0013, ``Plan Approval and Records for Load 
Lines.''
---------------------------------------------------------------------------

    Also based on the existing collection of information mentioned 
above, for barge owners and operators who choose to seek a limited 
domestic service load line, we estimate it will take about 0.5 hours to 
complete the application. We expect a mid-level employee will prepare 
the limited domestic service load line application at a fully loaded 
labor rate of $42/x hour. A mid-level employee can perform this duty 
because this application contains basic design information about the 
barge. The application is then submitted by the barge owner or operator 
to the authorized classification society, who then issues the load line 
certificate. We estimate the cost for a single barge

[[Page 70600]]

owner or operator to prepare the limited domestic service load line 
application to be about $21 (0.5 hours x $42 fully loaded labor rate/
hour). We estimate that owners or operators of about 5 barges annually 
will seek the limited domestic service load line for a cost of about 
$105 ((0.5 hours x $42 fully loaded labor rate/hour) x 5 barges 
annually). We estimate the total annual cost of this final rule to be 
about $5,000.\2\
---------------------------------------------------------------------------

    \2\ The figure $5,000 is rounded from $5,085 = $4,980 + $105, 
for the conditional exemption and the limited domestic service load 
line.
---------------------------------------------------------------------------

Benefits
    We expect the regulations to continue to have a positive economic 
impact on the local region because they will allow certain cargoes to 
be transported at a lower cost per ton-mile than by the alternative 
overland modes presently used. Also, the provisions offer increased 
flexibility to river barge operators that choose to operate on the 
Milwaukee route as well as the conditionally exempted route from the 
previously required limited service domestic voyage load line 
assignment.
    As a direct benefit, river barge owners and qualified river barge 
operators will likely gain business and commercial opportunities as a 
result of having the option of continuing to take part in this regime 
for the movement of certain cargoes.
    We also expect the regulatory changes in the affected CFR sections 
to have a safety benefit by reducing the risk of an accident for barge 
owners that take part in the load line regime as illustrated by the 
marine casualty incident that occurred August 7, 2003 on Lake Michigan 
(see the Background section of this preamble for further information on 
this marine casualty incident). This incident directly resulted in the 
regulatory changes in 46 CFR 45.191(b)(5) that require manhole and 
hatch dogs to be in working condition and all covers to be closed and 
secured watertight.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this 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 has reviewed this final rule for its potential 
economic impact on small entities. This final rule affects unmanned 
dry-cargo river barge owners and operators who voluntarily choose to 
obtain a limited domestic service load line assignment or a conditional 
load line exemption while operating on certain routes on Lake Michigan.
    We expect the costs of this rule to small entities to be minimal 
for river barge owners who choose to take part in the Great Lakes load 
line regime. We estimate that 35 river barges use the Great Lakes load 
line regime annually at a cost of about $140 per barge.\3\ Furthermore, 
this rule conditionally exempts qualified barges operating on the 
Milwaukee route from the previously proposed limited service domestic 
voyage load line assignment. The estimated hour burden of preparing the 
submittal to the Coast Guard for exempting barges on the Milwaukee 
route from load line assignment is minimal for river barge owners who 
choose to take part in this regime. Small entities will likely choose 
to obtain limited domestic service load line assignments or conditional 
load line exemptions while operating on Lake Michigan only if they 
expect to gain an economic benefit by using the less costly form of 
water transportation as opposed to land transportation. Therefore, the 
Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will 
not have a significant economic impact on a substantial number of small 
entities.
---------------------------------------------------------------------------

    \3\ The figure $140 is rounded from $143 = $5,000/35 barges.
---------------------------------------------------------------------------

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking. The Coast Guard 
will not retaliate against small entities that question or complain 
about this rule or any policy or action of the Coast Guard.
    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).

D. Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). We received no 
additional information to alter the existing collection of information.

E. 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. It is well settled that States may 
not regulate in categories reserved for regulation by the Coast Guard. 
It is also well settled, now, that all of the categories covered in 46 
U.S.C. 3306, 3703, 7101, and 8101 (design, construction, alteration, 
repair, maintenance, operation, equipping, personnel qualification, and 
manning of vessels), as well as the reporting of casualties and any 
other category in which Congress intended the Coast Guard to be the 
sole source of a vessel's obligations, are within the field foreclosed 
from regulation by the States. (See the decision of the Supreme Court 
in the consolidated cases of United States v. Locke and Intertanko v. 
Locke, 529 U.S. 89, 120 S.Ct. 1135 (March 6, 2000).)
    This rulemaking concerns load line assignments for vessels under 
U.S. jurisdiction. This is a category in which Congress intended the 
Coast Guard to be the sole source of a vessel's obligations. Because 
the States may not regulate within this category, preemption under 
Executive Order 13132 is not an issue.

F. 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 (adjusted for 
inflation) or more in any one year. Though this rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

G. Taking of Private Property

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

[[Page 70601]]

H. 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.

I. 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 does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

J. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does 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.

K. 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.

L. Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

M. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
that this action is one of a category of actions that do not 
individually or cumulatively have a significant effect on the human 
environment. This rule is categorically excluded under section 2.B.2, 
figure 2-1, paragraph (34)(d) of the Instruction and under section 6(a) 
of the ``Appendix to National Environmental Policy Act: Coast Guard 
Procedures for Categorical Exclusions, Notice of Final Agency Policy'' 
(67 FR 48244, July 23, 2002). Exclusion under paragraph (34)(d) applies 
because this rule pertains to regulations concerning inspection of 
vessels (i.e., load line requirements). Exclusion under 6(a) of the 
Federal Register Notice applies because this rule pertains to 
regulations concerning vessel operation safety standards. An 
environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated under 
ADDRESSES.

List of Subjects in 46 CFR Part 45

    Great Lakes, Reporting and recordkeeping requirements, Vessels.


0
For the reasons discussed in the preamble, the Coast Guard amends 46 
CFR part 45 as follows:

PART 45--GREAT LAKES LOAD LINES

0
1. The authority citation for part 45 continues to read as follows:

    Authority:  46 U.S.C. 5104, 5108; Department of Homeland 
Security Delegation No. 0170.1.


0
2. Amend Sec.  45.171 to revise Table 45.171 in paragraph (c) and add 
new paragraph (d) to read as follows:


Sec.  45.171  Purpose.

* * * * *
    (c) * * *
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[[Page 70602]]

[GRAPHIC] [TIFF OMITTED] TR18NO10.000


[[Page 70603]]


[GRAPHIC] [TIFF OMITTED] TR18NO10.001

BILLING CODE 9110-04-C
    (d) The provisions in this subpart pertain only to load line 
regulations. Nothing here waives or exempts participating barges from 
other requirements for vessels operating on Lake Michigan, such as 
Certificate of Documentation requirements per 46 CFR part 67.

0
3. Amend Sec.  45.173 to revise paragraphs (c) and (d) and add new 
paragraph (e) to read as follows:

[[Page 70604]]

Sec.  45.173  Eligible barges.

* * * * *
    (c) Barges with a length-to-depth ratio less than 22;
    (d) Barges on the Milwaukee route must not be more than 10 years 
old; and
    (e) All weathertight and watertight closures (dogs, gaskets, 
covers, etc.) must be in proper working condition.

0
4. Revise Sec.  45.175 to read as follows:


Sec.  45.175  Applicable routes.

    This subpart applies to the following routes, including 
intermediate ports, on Lake Michigan, between Calumet Harbor, IL, and--
    (a) Milwaukee, WI (the ``Milwaukee route'');
    (b) Burns Harbor, IN (the ``Burns Harbor route'');
    (c) St. Joseph, MI (the ``St. Joseph route''); and
    (d) Muskegon, MI (the ``Muskegon route'').

0
5. Amend Sec.  45.181 to revise paragraphs (a) and (b)(1) to read as 
follows:


Sec.  45.181  Load line exemption requirements for the Burns Harbor and 
Milwaukee routes.

* * * * *
    (a) Registration. Before the barge's first voyage onto Lake 
Michigan, the owner or operator must register the barge in writing with 
the Commanding Officer, Marine Safety Unit Chicago, 555A Plainfield 
Road, Willowbrook, IL, 60527. The registration may be faxed to MSU 
Chicago in advance at (630) 986-2120, with the original following by 
mail. The registration may be in any form, but must be signed by the 
owner or operator. No load line exemption certificate will be returned. 
However, the registration will be kept on file.
    (b) * * *
    (1) Barge name and official documentation number;
* * * * *


Sec.  45.183  [Amended]

0
6. Amend Sec.  45.183 to read as follows:
0
a. In paragraph (a)(2), remove the word ``five'' and add, in its place, 
the numeral ``5''; and
0
b. In paragraph (b)(2)(vi), remove the words ``and be fully'' and add, 
in their place, the words ``and fully''.

0
7. Amend Sec.  45.185 to revise paragraphs (b) and (c) to read as 
follows:


Sec.  45.185  Tow limitations.

* * * * *
    (b) No more than a total of three barges per tow may operate on the 
Milwaukee, St. Joseph, and Muskegon routes. A mixed tow of load-lined 
and exempted barges is still limited to three barges on those routes.
    (c) Tows must not be more than 5 nautical miles from shore.

0
8. Revise Sec.  45.187 to read as follows:


Sec.  45.187  Weather limitations.

    (a) Tows may not operate under Small Craft Advisory (SCA) 
conditions or worse, as issued by the National Weather Service in Lake 
Michigan Nearshore Marine Forecasts.
    (b) Tows may not operate when adverse ice conditions may imperil 
the tow or impede its access to shelter.
    (c) If SCA conditions are forecasted to develop at any time during 
the voyage, the tow must not leave harbor or, if already underway, must 
proceed to the nearest appropriate harbor of safe refuge.

0
9. Amend Sec.  45.191 to revise paragraphs (a) and (b)(5) to read as 
follows:


Sec.  45.191  Pre-departure requirements.

* * * * *
    (a) Weather forecast. Determine the Lake Michigan Nearshore Marine 
Forecast along the planned route, and confirm that adverse weather 
conditions (Small Craft Advisory or worse, or ice conditions) are not 
forecasted to develop.
    (b) * * *
    (5) All hatch and manhole dogs are in working condition, and all 
covers are closed and secured watertight;
* * * * *


Sec.  45.193  [Amended]

0
10. In Sec.  45.193(a), add the text ``(HP)'' after the word 
``horsepower''.


Sec.  45.197  [Amended]

0
11. In Sec.  45.197, in the introductory text, remove the word 
``aboard'' and add, in its place, the words ``on board''.

    Dated: November 12, 2010.
J.G. Lantz,
Director of Commercial Regulations and Standards.
[FR Doc. 2010-28993 Filed 11-17-10; 8:45 am]
BILLING CODE 9110-04-P


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