Deepwater Ports

Federal RegisterJan 6, 2004

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 148, 149, and 150

[USCG-1998-3884]

RIN 1625-AA20 (formerly RIN 2115-AF63)

Deepwater Ports

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary interim rule with request for comments.

SUMMARY:

This temporary interim rule revises regulations adopted in 1975 to implement the Deepwater Port Act of 1974. It updates and streamlines those regulations in accordance with the 1996 Deepwater Port Modernization Act. It also extends the deepwater port regulations to the natural gas deepwater ports authorized by Congress in the Maritime Transportation Security Act of 2002. This temporary interim rule will be followed by a final rule as soon as practicable.

DATES:

This temporary interim rule is effective from January 6, 2004, until October 1, 2006. Comments and related material must reach the Docket Management Facility on or before July 5, 2004. Comments sent to the Office of Management and Budget (OMB) on collection of information must reach OMB on or before July 5, 2004.

ADDRESSES:

You may submit comments identified by Coast Guard docket number USCG-1998-3884 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:

(1) Web site:

http://dms.dot.gov.

(2) Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001.

(3) Fax: 202-493-2251.

(4) Delivery: Room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

(5) Federal rulemaking portal:

http://www.regulations.gov.

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:

If you have questions on this rule, call Lieutenant Commander Kevin Tone, Vessel and Facility Operating Standards Division (G-MSO-2), Coast Guard, telephone 202-267-0226. If you have questions on viewing or submitting material to the docket, call Andrea M. Jenkins, Program Manager, Docket Operations, Department of Transportation, telephone 202-366-0271.

SUPPLEMENTARY INFORMATION:

Effective Dates

This temporary interim rule takes effect January 6, 2004. The Coast Guard finds that postponing the effective date of this temporary interim rule is unnecessary, because the immediate impact of changes that otherwise would take effect 30 days after publication are administrative in nature and have been the subject of permissible consultation with affected parties. The Coast Guard further finds that postponing the effective date of this temporary interim rule is contrary to the public interest in the prompt processing of deepwater port licensing applications. Therefore, the Coast Guard finds that good cause exists under 5 U.S.C. 553(d)(3) for this temporary interim rule to take effect upon publication. The effective period of this temporary interim rule ends October 1, 2006. The Maritime Transportation Security Act of 2002 (MTSA), Public Law 107-295, Title I, 106 (e)(2), provides in part: “The Secretary may issue an interim final rule as a temporary regulation implementing this section * * * as soon as practicable after the date of enactment of this section, without regard to the provisions of chapter 5 of title 5, United States Code [the Administrative Procedure Act or APA].” Although MTSA itself sets no time limit on the temporary regulation, we think a self-imposed termination date of October 1, 2006, is in keeping with the spirit of the act.

Public Participation and Request for Comments

This temporary interim rule has been issued without public notice and comment on certain provisions (see the preceding discussion of “Effective Dates”). The provisions being added without previous public notice and comment concern natural gas deepwater ports. Public notice for other aspects of this rulemaking was provided in the notice of proposed rulemaking (NPRM) issued May 30, 2002 (67 FR 37920), and the public was given several months to comment on that NPRM.

Section 106(e)(3) of MTSA requires publication of a final rule as soon as practicable. The final rule is not exempt from the notice and comment provisions of the APA. We intend to issue a final rule after providing opportunity for public comment on this temporary interim rule, and we may revise the final rule in light of those comments. We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to

http://dms.dot.gov

and will include any personal information you have provided. We have an agreement with the Department of Transportation (DOT) to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below.

Submitting comments:

If you submit a comment, please include your name and address, identify the docket number for this rulemaking (USCG-1998-3884), indicate the specific section of this document to which each comment applies, and give the reason for each comment. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under

ADDRESSES

; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8

1/2

by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this temporary interim rule in view of them.

Viewing comments and documents:

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to

http://dms.dot.gov

at any time and conduct a simple search using the docket number. You may also visit the Docket Management Facility in room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Privacy Act:

Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,

etc.

). You may review the Department of Transportation's Privacy Act Statement in the

Federal Register

published on April 11, 2000 (65 FR 19477), or you may visit

http://dms.dot.gov.

Public Meeting

We do not now plan to hold a public meeting. If you wish, you may submit a request for a public meeting to the Docket Management Facility at the address under

ADDRESSES.

Explain why you think a meeting would be useful. If we determine that a meeting would aid this rulemaking, we will hold one at a time and place announced by a later notice in the

Federal Register

Regulatory History

On May 30, 2002, we published in the

Federal Register

(67 FR 37920) a notice of proposed rulemaking entitled “Deepwater Ports,” and announced a public comment period ending July 29, 2002. Subsequently, we published a

Federal Register

notice (67 FR 53764, August 19, 2002) extending the public comment period to September 18, 2002. The comments we received are discussed in “Discussion of Comments and Changes,” below. No public hearing was held in connection with the NPRM.

Related Rulemaking

The rule proposed in the May 30, 2002, NPRM contained numerous references to Coast Guard rules proposed in an earlier NPRM (64 FR 68416, December 7, 1999) titled “Outer Continental Shelf Activities.” The Outer Continental Shelf (OCS) Activities rulemaking (USCG-1998-3868; RIN 1625-AA18, formerly RIN 2115-AF39) has not been completed. Therefore, instead of retaining the 2002 NPRM's references to the 1999 NPRM's proposed OCS provisions, we revised the Deepwater Ports rules so that they now contain detailed provisions that are based on the 1999 OCS NPRM's provisions. In many cases, we have modified those provisions so that they are substantively different from what we proposed in 1999. We consider the Deepwater Ports temporary interim rule to represent a logical outgrowth of the 2002 Deepwater Ports NPRM and the 1999 OCS Activities NPRM, modified to reflect MTSA's addition of natural gas deepwater ports as well as the public comments we received on both NPRMs. These detailed provisions primarily appear in those portions of the temporary interim rule concerning lifesaving and firefighting requirements, maintenance procedures, and workplace safety and health requirements.

One commenter on the 2002 NPRM said we should not couple Deepwater Ports rulemaking to the OCS Activities rulemaking without a further opportunity for public comment and that in the meantime we should rely on existing OCS regulations, while another commenter said that aligning the two rulemakings was appropriate. As explained in “Public Participation and Request for Comments” and in the preceding paragraph, there will be further opportunity for public comment before a final rule is issued, and we have modified OCS Activities provisions, for use in this temporary interim rule, in light of public comments that we have previously received on both the Deepwater Ports and OCS Activities rulemakings.

Background and Purpose

A detailed discussion of this rulemaking's background and objectives can be found in the 2002 NPRM. In summary, our goal has been to modernize existing deepwater port regulations in light of experience, and in compliance with the Deepwater Port Modernization Act (DPMA; Public Law 104-324, title V, sec. 501-508, October 19, 1996), which amended the Deepwater Port Act of 1974 (DWPA; 33 U.S.C. 1501-1524). DPMA expressed a general interest in ensuring fair treatment for deepwater ports relative to other modes for importing or transporting oil; in eliminating unnecessary regulation and promoting innovation, flexibility, and efficiency; and in encouraging the construction of additional deepwater ports.

On November 25, 2002, the Maritime Transportation Security Act (MTSA) of 2002 was signed into law. MTSA amended DWPA, which as enacted in 1974 applied only to deepwater ports for oil, to cover natural gas facilities as well. It also called for the development of implementing regulations “as soon as practicable,” and authorized publication of a temporary interim rule without regard to the usual public notice and comment provisions of the Administrative Procedure Act.

The proposed rule published in the 2002 NPRM has now been revised to reflect MTSA's amendment of DWPA to include natural gas facilities, and to reflect public comments that we received in response to the NPRM. We also changed many provisions taken from the 1999 OCS Activities NPRM (

see

“Related Rulemaking,” above). We have tried to align the rules for natural gas deepwater ports with existing rules for facilities transferring (liquefied) natural gas (33 CFR part 127).

After MTSA's enactment, the Coast Guard and the Maritime Administration (MARAD) received two applications for the licensing of natural gas deepwater ports. As we announced in the

Federal Register

, those applications (Port Pelican LLC Deepwater Port, 67 FR 79234, Dec. 27, 2002; El Paso Energy Bridge Gulf of Mexico, LLC Deepwater Port, 68 FR 3299, January 23, 2003) thus far have been processed using the existing provisions of 33 CFR part 148 that govern the license application process. With publication of this temporary interim rule, we now will complete the processing of these two applications under the revised provisions of part 148.

Applicable Standards

In the Deepwater Port Act's first three decades, only one deepwater port was constructed. By contrast, in the first three months following MTSA's amendment of DWPA, the Coast Guard became aware of about half a dozen potential applicants, and two applications for natural gas facilities were received within weeks of MTSA's enactment. In order to fulfill MTSA's mandate to issue implementing regulations as soon as practicable, we have sought to provide the public with a comprehensive regulatory scheme at this time, even though that scheme will certainly require fine-tuning as both government and industry acquire more experience in addressing the issues posed by the growing interest in deepwater ports.

One area in which we intend to refine these rules is in identifying the industry standards or similar commonly accepted authorities that we think provide deepwater port operators with adequate guidance for the safe design, construction, and operation of their facilities. Our 2002 NPRM listed several such authorities and invited the public to suggest others. Two commenters on that NPRM favored incorporation of industry standards wherever possible. Similarly, rules that were proposed in the 1999 OCS Activities NPRM—to which the 2002 NPRM referred and on which much of this new temporary interim rule's provisions are based—liberally incorporated industry standards or other authorities.

The incorporation by reference of such industry standards is attractive to industry and to regulators alike. However, it is not yet clear whether standards mentioned in the earlier NPRMs are the best guides for a deepwater port industry that soon could be dominated by natural gas facilities, some of them unmanned.

Accordingly, in this temporary interim rule we have removed references to industry standards in our regulatory text, and instead, we have written into the regulations performance levels that we believe deepwater ports must meet. Applicants and operators will need to demonstrate the ability to maintain these prescribed levels. We are

not ready to identify industry standards in the regulations that will have the force of law for both regulators and the regulated public.

The Deepwater Port Modernization Act of 1996 was intended to encourage flexibility and innovation and to avoid writing regulations that fit the existing model for deepwater ports represented by the Louisiana Offshore Oil Port (LOOP). DPMA supports detailing port-specific requirements in the license or, as much as possible, in the port's operations manual.

With rapid advances in technology, such as those now seen in the offshore energy and transportation industry, new regulations may lag and existing ones may not fully apply to proposed innovations. The current situation is similar to one that existed 15 years ago when tension leg platforms were introduced to access oil and gas on the U.S. Outer Continental Shelf at previously unattainable water depths. At that time industry submitted a design basis plan that the Coast Guard reviewed and approved as the standards to be used for a particular project. Now, applicants for deepwater port licenses have identified proposed standards or a design basis plan within their applications. The Coast Guard is identifying appropriate standards as part of the application reviews and for inclusion in the final rule for deepwater ports. In doing so, we will combine, to the extent practicable, existing standards and regulations that have proven successful for vessels, offshore structures, and onshore liquified natural gas (LNG) import terminals.

In addition, several classification societies are developing guides for offshore LNG terminals. We will work with them and other Federal agencies having experience in various aspects of oil and LNG terminals to determine the adequacy of these guides and other relevant standards and regulations, such as NFPA 59A and 49 CFR part 193.

We invite your comments about standards that may be of value to the Coast Guard and industry, and we may revise our final rule to incorporate some of these standards by reference.

Also, in the event that we adopt an interpretive policy under which specific industry standards are identified as beneficial in complying with requirements of the temporary interim rule, we will publish a notice in the

Federal Register

to call your attention to that policy. Standards identified in that manner will not have the force of law, but they should provide worthwhile guidance.

Old-to-New Reference Tables

This rulemaking amends 33 CFR parts 148, 149, and 150, which were first issued in 1975. In revising those parts, we have found it necessary to relocate some provisions and to eliminate others as obsolete. In addition, this temporary interim rule draws upon proposed regulatory text that first appeared in the 2002 Deepwater Ports NPRM and in the 1999 OCS Activities NPRM (

see

“Related Rulemaking,” above), and relocates or eliminates much of that material as well. Therefore, we have inserted the following tables to help you locate related old and new provisions.

There are three tables:

Table 1 is arranged by “new” temporary interim rule section, and lists the “old” sources from which the new provision is drawn, whether that old parallel provision exists in the CFR rules that were in force until publication of the temporary interim rule, or was proposed in either the 2002 Deepwater Ports NPRM or the 1999 OCS Activities NPRM. If a new provision is listed without an old parallel, it has been added in this temporary interim rule for the first time, for a reason explained in “Discussion of Comments and Changes,” below.

Table 2 is arranged by existing CFR section. These are “old” Coast Guard rules in force until the publication of this temporary interim rule, with their “new” parallel provisions in the temporary interim rule (as well as a middle column showing where the CFR section was paralleled in either the 2002 Deepwater Ports NPRM or the 1999 OCS Activities NPRM). If an old provision is listed without a new parallel, it was eliminated from this temporary interim rule for a reason explained in “Discussion of Comments and Changes,” below.

Table 3 is arranged by NPRM section. These are “old” sections that were proposed either in the 2002 Deepwater Ports NPRM or as an amendment to 33 CFR part 142 or part 143 in the 1999 OCS Activities NPRM, with their “new” parallel provisions in the temporary interim rule. If an old provision is listed without a new parallel, it was eliminated from this temporary interim rule for a reason explained in “Discussion of Comments and Changes,” below.

Table 1.—Temporary Interim Rule (TIR) Sections to NPRM and CFR Sections

If you are looking at the TIR cite—

It is derived from the NPRM* at proposed—

That was derived from 33 CFR—

148.1

148.2

149.105, 150.103

148.3

148.5

148.3, 150.204, 150.303, 150.403

148.100

148.101

148.105

148.109

148.107

148.109(z)

148.108

148.109(z)(5)

148.110

148.105

148.115

148.103, 148.107(a), (b)

148.125

148.107(c) through (e)

148.200

148.201

148.205

148.207

148.209

148.211

148.213

148.215

148.216

148.217

148.221

148.219

148.222

148.222(a) and (b)

148.231

148.227

148.235

148.228

148.251

148.230

148.253, .283

148.232

148.203(b), .287, .291

148.234

148.255

148.236

148.257

148.238

148.261

148.240

148.263

148.242

148.265

148.244

148.267

148.246

148.273(a) and (c)

148.248

148.273(b)

148.250

148.275

148.252

148.281

148.254

148.285

148.256

148.276

148.321(b)

148.277

148.321(a)

148.279

148.323

148.281

148.325

148.283

148.327

148.300

148.400

148.305

148.403

148.307

148.407(a)

148.310

148.405

148.315

148.320

148.400

148.501

148.405

148.503

148.410

148.505

148.415

148.507

148.420

148.509

148.500

148.601

148.505

148.603

148.510

148.605

148.515

148.607

148.600

148.610

148.605

148.703

148.700, .702, .705, .707, .708, .709, .710, .715, .720, .722, .725, .730, .735, .737

148 Appendix A

149.1

149.101

149.5

149.10

149.100

149.301

149.103

149.319

149.105

149.303

149.110

149.305

149.115

149.307

149.120

149.309

149.125

149.311

149.130

149.313

149.135

149.315

149.140

149.317

149.145

149.403

149.150

149.321

149.300

149.301 through 149.339

149.305 [which references Sub N** NPRM sections 143.810 through 143.885, and 143.910 through 143.925]

149.340

149.310

149.402

149.400

149.401

149.405

149.402

143.1010 [Sub N]

149.403, .404

149.430/143.1015 [Sub N]

149.402

149.405

143.1020 [Sub N]

149.406

143.1025 [Sub N]

149.407

143.1026 [Sub N]

149.408

143.1028 [Sub N]

149.409

143.1029 [Sub N]

149.410

143.1030 [Sub N]

149.411

143.1035 [Sub N]

149.412

143.1040 [Sub N]

149.413

143.1045 [Sub N]

149.414

143.1050 [Sub N]

149.415

149.410/143.1055 [Sub N]

149.451

149.416

149.415

149.453

149.417

149.420

149.457

149.418

149.425(a)

149.467

149.419

New

149.420

143.1060 [Sub N]

149.421

143.1061 [Sub N]

149.422

143.1062 [Sub N]

149.423

143.1135 [Sub N]

149.424

New

149.500

149.701

149.505

149.705

149.510

149.707

149.520

149.535

149.797

149.540

149.751

149.550

149.753

149.560

149.771 and 149.772

149.565

149.773

149.570

149.791

149.575

149.793

149.580

149.795

149.585

149.799

149.600

149.201

149.610

150.117

149.615

149.203 (a) and (b)

149.620

149.203 (c) and (d)

149.625

149.205

149.630

149.640

149.206

149.641

143.1115 [Sub N]

149.642

143.1115 [Sub N]

149.643

143.1115 [Sub N]

149.644

143.1115 [Sub N]

149.645

143.1120 [Sub N]

149.646

143.1120 [Sub N]

149.647

143.1120 [Sub N]

149.650

149.209 and 150.121

149.655

149.213

149.660

149.411

149.665

149.541

149.670

149.543

149.675

149.545

149.680

149.217 and 150.527

149.685

149.690

149.421, .423, .431, .433 and .441

149.691

143.1220 [Sub N]

149.692

143.1221 [Sub N]

149.693

143.1222 [Sub N]

149.694

143.1230 [Sub N]

149.695

143.1231 [Sub N]

149.696

143.1232 [Sub N]

149.697

143.1235 [Sub N]

149.700

149.695

149.539

150.1

150.101

150.5

150.10 (a)-(d)

150.10 (a)-(b)

150.105 (a)-(b)

150.10 (e)

150.10 (c)

150.109

150.15

150.105

150.20

150.106

150.25

150.107 (a)-(c)

150.30

150.107 (a)-(c)

150.35

150.107 (d)

150.40

150.113

150.45

150.115

150.50

150.129

150.100

150.105

New

[see Note 1]

150.110

New

150.200

150.205

150.210

150.203

150.210

150.215

150.217

150.225

150.250

150.300

150.301

150.305

150.310

150.307

150.320

150.309 (a) and (b)

150.325

150.333

150.330

150.335

150.340

150.337

150.345

150.315

150.350

150.338

150.355

150.317, 150.339

150.380

150.345

150.385

150.400

150.405

150.420

150.411

150.425

150.413

150.430

150.435

150.417

150.435

150.440

150.423

150.440

150.445

150.425

150.445

150.447

150.421

150.500

150.501

150.505

150.503

150.502

143.615 [Sub N]

150.503

143.620 [Sub N]

150.504

143.625 [Sub N]

150.505

143.630 [Sub N]

150.506

143.635 [Sub N]

150.507

143.640 [Sub N]

150.508

143.645 [Sub N]

150.509

150.510

143.710 [Sub N]

150.511

143.715 [Sub N]

150.512

143.720 [Sub N]

150.513

143.725 [Sub N]

150.514

143.730 [Sub N]

150.515

143.735 [Sub N]

150.516

143.740 [Sub N]

150.517

143.745 [Sub N]

150.518

143.765 [Sub N]

150.519

143.760 [Sub N]

150.520

143.750 [Sub N]

150.521

143.755 [Sub N]

150.530

150.515

150.504

150.531

150.520

150.505

150.532

150.525

150.507

150.540

150.530

150.515

150.550

150.535

150.517

150.555

New

150.600

150.509

150.601

New

150.602

142.20 [Sub N]

150.603

142.25 [Sub N]

150.604

142.30 [Sub N]

150.605

142.35 [Sub N]

150.606

142.40 [Sub N]

150.607

New

150.608

142.110 [Sub N]

150.609

142.115 [Sub N]

150.610

142.120 [Sub N]

150.611

142.125 [Sub N]

150.612

142.130 [Sub N]

150.613

142.235 [Sub N]

150.614

142.140 [Sub N]

150.615

142.215 [Sub N]

150.616

142.220 [Sub N]

150.617

142.225 [Sub N]

150.618

142.150-.152/142.180-.183 [Sub N]

150.619

142.155 [Sub N]

150.620

142.245 [Sub N]

150.621

142.260 [Sub N]

150.622

142.285 [Sub N]

150.623

Part 142 subpart D [Sub N]

150.624

142.185 [Sub N]

150.625

142.410 [Sub N]

150.626

142.415 [Sub N]

150.627

142.420 [Sub N]

150.628

142.425 [Sub N]

150.700

150.601

150.705

150.603

150.710

150.605

150.715

150.607

150.720

150.611

150.800

150.701

150.805

150.703

150.810

150.705

150.815

150.711

150.820

150.711

150.825

150.830

150.835

150.713

150.840

150.751

150.845

150.753

150.850

150.759

150.900

150 Appendix A

150.905

150 Appendix A

150.910

150 Appendix A

150.915

150 Appendix A

150.920

147.30

150.925

147.35

150.930

147.105

*Unless noted otherwise, “NPRM”, notice of proposed rulemaking, refers to the NPRM on Deepwater Ports (USCG-1998-3884).

** “[Sub N]” means the section listed was published in the NPRM on OCS Activities (USCG-1998-3868).

Note 1:

The advent of this section was discussed on page 37927 (in the preamble only) of the NPRM on Deepwater Ports (USCG-1998-3884).

Table 2.—Prior CFR Sections to NPRM and TIR Sections

If the regulation is in 33 CFR—

It was found in the NPRM* at proposed—

And it is now in the TIR at—

148.1

148.3

148.5

148.101

148.100

148.103

148.115

148.105

148.110

148.107(a) and (b)

148.115

148.107(c), (d), and (e)

148.125

148.109

148.105

148.109(z)

148.107

148.109(z)

148.108

148.111

148.201

148.200

148.203(b)

148.232

148.205

148.207

148.211

148.209

148.213

148.211

148.215

148.213

148.216

148.215

148.217

148.219

148.221

148.231

148.222(a) and (b)

148.233

148.222(c)

148.235

148.227

148.251

148.228

148.253

148.230

148.255

148.234

148.257

148.236

148.259

148.232(a)

148.261

148.238

148.263

148.240

148.265

148.242

148.267

148.244

148.269

148.232(a)

148.271

148.232(a)

148.273(a) and (c)

148.246

148.273(b)

148.248

148.275

148.250

148.277

148.232(a)

148.279

148.232(a)

148.281

148.252

148.283

148.230

148.285

148.254

148.287

148.232

148.289

148.232, .242

148.291

148.232(a)

148.232

148.321(a)

148.277

148.321(b)

148.276

148.323

148.279

148.325

148.281

148.327

148.283

148.400

148.300

148.403

148.305

148.305, 148.307

148.405

148.310

148.407

148.277, .307

148.501

148.400

148.503

148.405

148.505

148.410

148.507

148.415

148.509

148.420

148.601

148.500

148.603

148.505

148.605

148.510

148.607

148.515

148.701

148.600

148.703

148.605

148 Appendix A

148.700, .702, .705, .707, .708, .709, .710, .715, .720, .722, .725, .730, .735, .737

148 Annex A

148.730, .735, .737

149.101

149.1

149.105

148.2

149.5

149.201

149.600

149.203(a) through (c)

149.615

149.203(d)

149.620

149.205

149.625

149.206

149.640

149.209

149.650

149.211

149.213

149.655

149.215

149.217

149.680

149.301

149.100

149.303

149.105

149.305

149.110

149.307

149.115

149.309

149.120

149.311

149.125

149.313

149.130

149.315

149.135

149.317

149.140

149.319

149.103

149.321

149.150

149.401

150.15

149.402

149.310 and 149.430

150.501

149.403

149.145

149.411

149.660

149.421

149.690

149.423

149.690

149.431

149.690

149.433

149.690

149.441

149.690

149.451

149.410

149.415

149.453

149.415(a) through (c)

149.416

149.455

149.415(d)

149.416(d)

149.457

149.420(a) through (c)

149.417

149.459

149.420(d)

149.417(a)

149.461

149.420(e)

149.417(c)

149.463

149.420(f)

149.465

149.420(g)

149.417(e)

149.467

149.425(a)

150.532

149.469

149.425(b)

149.471

149.425(c)

149 473

149.425(d)

149.477

149.425(e)

149.479

149.481

149.405

149.401

149.483

149.405

149.401

149.491

149.405

149.501

149.405

149.503

149.405

149.505

149.405

149.507

149.405

149.511

149.405

149.401

149.513

149.405

149.421

149.515

149.405

149.412

149.517

149.405

149.411

149.521 through 149.537

149.305

149.301 through .333

149.539

149.695

149.700

149.541

149.665

149.543

149.670

149.545

149.675

149.701

149.500

149.703

149.521

149.535

149.705

149.505

149.520

149.707

149.510

149.721

150.715

149.723

149.527

149.724

149.520

149.725

149.727

149.525

149.520

149.729

149.751

149.540

149.753

149.550

149.755(a) and (b)

149.531(a) and (b)

149.755(c)

149.555(a) and (b)

149.757(a)

149.531(c)

149.757(b)

149.545(a)(3)

149.757(c)

149.555(c)

149.550

149.759

149.533

149.771

149.773

149.560

149.775

149.565

149.791

149.570

149.793

149.575

149.795

149.580

149.797

149.535

149.799

149.585

150.101

150.1

150.103

148.2

150.105

150.10

150.106

150.20

150.107(a)-(c)

150.25

150.107(d)

150.35

150.109

150.10

150.10(e)

150.113

150.40

150.115

150.45

150.117

150.119

150.110

150.121

150.123

150.125

150.127

150.15

150.129

150.50

150.201

150.200

150.203

150.210

150.205

150.204

148.5

150.205

150.220

150.207

150.225

150.209

150.230

150.211

150.235

150.213

150.240

150.215

150.245

150.217

150.215

150.210

150.301

150.300

150.303

148.5

150.305

150.15

150.307

150.310

150.309 (a) and (b)

150.320

150.309 (c)

150.365

150.320

150.311

150.15

150.313

150.340

150.315

150.345

150.317

150.355

150.333

150.325

150.335

150.330

150.337

150.340

150.338

150.350

150.339

150.355

150.341

150.370

150.342

150.375

150.345

150.380

150.400

150.403

148.5

150.405

150.407

150.409

150.411

150.420

150.413

150.425

150.415

150.430

150.417

150.435

150.430

150.419

150.421

150.447

150.445

150.423

150.440

150.435

150.425

150.445

150.440

150.500

150.503

150.505

150.501

150.504

150.515

150.530

150.505

150.520

150.531

150.507

150.525

150.532

150.509

150.600

150.540

150.511

150.600

150.550

150.513

150.515

150.530

150.540

150.516

150.600

150.517

150.535

150.550

150.519

150.521

150.523

150.525

150.600

150.527

149.680

150.601

150.700

150.603

150.705

150.605

150.710

150.607

150.715

150.611

150.720

150.701

150.800

150.703

150.805

150.705

150.810

150.707

150.711

150.815, .820

150.713

150.835

150.751

150.840

150.753

150.845

150.755

150.757

150.759

150.850

150 Appendix A

150.900 through 150.915

150.900 through .930

150 Annex A

150.935

150.905

*Unless noted otherwise, “NPRM”, notice of proposed rulemaking, refers to USCG-1998-3884.

Table 3.—NPRM Sections to TIR Sections

The regulation in the NPRM* at section—

Is now in the TIR at section—

148.1

148.2

148.3

148.5

148.10

148.100

148.105

148.107

148.108

148.110

148.115

148.125

148.200

148.203

148.205

148.207

148.209

148.211

148.213

148.215

148.217

148.221

148.222

148.227

148.228

148.230

148.232

148.234

148.236

148.238

148.240

148.242

148.244

148.246

148.248

148.250

148.252

148.254

148.256

148.276

148.277

148.279

148.281

148.283

148.300

148.305

148.307

148.310

148.315

148.320

148.400

148.405

148.410

148.415

148.420

148.500

148.505

148.510

148.515

148.600

148.605

148.610

148 Appendix A

148.700, .702, .705, .707, .708, .709, .710, .715, .720, .722, .725, .730, .735, .737

148 Annex A

148.730, .735, .737

149.1

149.5

149.10

149.100

149.105

149.110

149.115

149.120

149.125

149.130

149.135

149.140

149.145

149.150

149.300

149.305

149.301 through 149.339

149.310

149.400

149.405

149.401

149.410

149.415

149.416

149.420

149.417

149.425

149.418

150.430

149.500

150.500

149.505

149.510

149.520

149.521

149.523

149.525

149.527

149.530

149.531

149.533

149.535

149.540

149.545

149.550

149.555

149.560

149.565

149.570

149.575

149.580

149.535

149.585

149.600

149.610

149.615

149.620

149.625

149.630

149.640

149.650

149.655

149.660

149.665

149.670

149.675

149.680

149.685

149.690

149.695

149.700

150.1

150.5

150.10

150.15

150.20

150.25

150.30

150.35

150.40

150.45

150.50

150.100

150.200

150.205

150.200

150.210

150.205

150.215

150.210

150.220

150.225

150.230

150.235

150.240

150.245

150.250

150.300

150.310

150.320

150.325

150.330

150.340

150.345

150.350

150.355

150.365

150.320

150.370

150.375

150.380

150.400

150.405

150.420

150.425

150.430

150.435

150.430

150.440

150.435

150.445

150.440

150.447

150.445

150.500

150.505

150.501

150.510

150.509

150.515

150.530

150.520

150.531

150.525

150.532

150.530

150.540

150.535

150.550

150.600

150.601

150.700

150.705

150.710

150.715

150.720

150.800

150.805

150.810

150.815

150.820

150.825

150.830

150.835

150.840

150.845

150.850

150.900

150.905

150.910

150.915

150.920

150.925

150.930

150.935

*Unless noted otherwise, “NPRM”, notice of proposed rulemaking, refers to USCG-1998-3884.

Discussion of Comments and Changes

In the following pages we discuss public comments received on our 2002 NPRM as well as other significant changes made to the regulatory text since that NPRM was published. This discussion begins with a review of general comments and then moves sequentially through the three parts of Title 33, Code of Federal Regulations (parts 148, 149, and 150) that are amended by this rulemaking. The section designations match those that you will see in the regulatory text that follows this preamble. In many cases, those designations have changed since the 2002 NPRM. In addition, the temporary interim rule incorporates provisions that appeared in the 1999 OCS Activities NPRM (

see

“Related Rulemaking,” above) and that were proposed as amendments to parts 142 and 143 of title 33. Finally, you may wish to compare the text of parts 148, 149, or 150 that were effective prior to this temporary interim rule. To move between “old” provisions and their “new” parallels, or vice versa, use the three tables appearing under “Old-to-New Reference Tables,” above.

Many sections of the temporary interim rule have been changed for one or more of the following reasons:

• The change is not substantive—in this category we include changes made merely to reflect the Coast Guard's transfer to the new Department of Homeland Security, conversion of English or metric measurements and elimination of imprecise equivalents for those measurements, and changes that provide updated information without imposing any new legal requirement;

• We amended the section to accommodate the legislative addition of natural gas deepwater ports; or

• We added the section in order to describe in detail requirements in the NPRM that were only incorporated by reference to the OCS Activities NPRM.

In these cases, we do not specifically discuss the section below, unless there is some additional reason for doing so.

One noticeable but nonsubstantive change from the 2002 NPRM is the temporary interim rule's omission of Appendix A to part 148. In the 2002 NPRM, Appendix A contained updated environmental review criteria for deepwater ports. These provisions are regulatory in nature and we consider it more appropriate to designate them as such. Updated environmental review criteria, therefore, now appear as subpart G in part 148 (§ 148.700

et seq.

We received comments from 9 commenters during the public comment period. A 10th commenter submitted comments largely concerned with natural gas issues, but not until several months after the close of the comment period. The 10th commenter's comments have been docketed (USCG-1998-3884-19), but they have not been considered in the drafting of this temporary interim rule.

General comments:

Two commenters asked us to complete this rulemaking as quickly as possible. One commenter asked if we would “grandfather” this temporary interim rule so that existing deepwater ports would have time to comply with its requirements. Because we consider the sole existing deepwater port to be in compliance with this temporary interim rule, there is no need for grandfathering.

Specific comments:

The following comments related to specific portions of the regulatory text.

§ 148.5. One commenter asked us to define “hydrographic survey” and to distinguish “engineering hydrographic survey” from “reconnaissance hydrographic survey.” We have added or clarified these definitions. This commenter also asked us to reinstate the definition of “marine site,” which we have done because it addresses information independent of, but complementary to, the definition of a deepwater port. A second commenter asked us to add a definition of “oil residue.” In light of our removal of § 149.150, this request is no longer relevant.

Two commenters on the 1999 OCS Activities NPRM offered their views on the definition of “confined space” that now appears in this section. One commenter suggested that we reword the definition to make clear that a space “not designed for continuous occupancy” means a space “not designed for continuous routine occupancy.” The commenter said that “continuous” implies that occupancy must be uninterrupted, while “continuous routine” suggests that occupancy can be interrupted. The commenter said that, therefore, spaces like closets or storerooms, which are routinely but not uninterruptedly occupied, could be treated as “confined spaces.” We believe “continuous occupancy” better expresses our intent and have not modified this definition. The second commenter offered a different definition of “confined space” based on the industry standard ANSI Z117.1-1995(1). Aside from recommending this industry standard as guidance for confined space entry requirements, this commenter did not explain why the ANSI definition is superior to the one we proposed. As we explain in “Applicable Standards,” above, we are not ready at this time to adopt industry standards. We see no reason at this time to change our definition of “confined space.”

We also made the following changes: We redefined “citizen of the United States” and “person” to more closely match definitions used in DWPA; we added definitions of “area to be avoided,” “no anchoring area,” “operator,” and “routing measures”; and we deleted “PAD District” because the Department of Energy no longer requires deepwater port operators to furnish information associated with that term.

Finally, we added a definition of “Maritime Administration (or MARAD)” because our rule frequently refers to that agency. We considered using the term “licensing authority” instead, to avoid confusion between the Secretary of Transportation and the Maritime Administration (MARAD). DWPA vests deepwater port licensing authority in the Secretary. MARAD currently exercises that authority under a delegation from the Secretary. While it might be technically more correct to use a neutral term like “licensing authority,” we have chosen to retain references to MARAD since they more directly describe the current procedure and can be easily changed should the Secretary ever change this delegation.

§ 148.10. We deleted this section (concerning incorporation of industry standards) that appeared in the NPRM. See the discussion under “Applicable Standards” above.

§ 148.105. Several commenters asked that we allow preliminary submission of an outline or concept of operations in lieu of a detailed draft operations manual. We have amended this section to allow submission of an operations manual outline. A detailed operations manual will still need Coast Guard approval before a deepwater port begins operations.

§ 148.105(a)(5). One commenter recommended that we narrow the information required by this paragraph so that outstanding litigation need be disclosed only if it is directly related to bankruptcy proceedings or violation of Federal or State laws. We agree and

have amended the paragraph accordingly.

§ 148.105 (b). One commenter said we should require information about affiliates and engineering firms only if they are involved in the design or construction of the port. We agree and have revised this paragraph accordingly.

§ 148.105(d). We have revised this paragraph extensively in order to clarify what is required to show United States citizenship under DWPA, and to reflect the popularity of new forms of business organization such as the limited liability company.

§ 148.105(g)(1). One commenter suggested a 3 percent threshold for affiliates. To reduce the regulatory burden on applicants, we revised this paragraph so that applicants need list only partners who have a substantial ownership interest, and affiliates who are contractually interested in the deepwater port. We added alternative compliance provisions relating to affiliate financial information.

§ 148.105(g)(2). One commenter said the application's overall site plan should address the decommissioning and removal of the facility. We think each applicant will have some plan for decommissioning and removal, in order to meet this paragraph's requirement for a detailed cost estimate for removal, and that this is sufficient for licensing purposes. An operator's final plan for decommissioning and removal would have to comply with legal requirements in effect at that time.

§ 148.105(g)(4). Three commenters recommended deleting the requirement that an applicant demonstrate the financial viability of its projects by submitting throughput and financial projections, arguing that the value of these projections would be outweighed by the competitive disadvantage at which an applicant could be put by publishing these projections. We have retained the requirement because this is essential information that is necessary and appropriate within the meaning of 33 U.S.C. 1504.

§ 148.105(g)(5). One commenter recommended eliminating the requirement for estimates of future refinery capacity, runs to the stills, and refinery product demand. We agree that much of the required data is no longer needed, because competition concerns envisioned when DWPA was originally enacted never materialized. We have revised this paragraph accordingly. Another commenter said certain requirements for data on onshore components were more financial than technical in nature and should either be eliminated or combined with other requirements for financial data. We have retained the requirements but transferred them to this paragraph.

§ 148.105(h). One commenter asked us to align the information requirements for facility contractors with those for design firms. We agree that our need for information about contractors and designers is similar, so we have amended this paragraph accordingly. This commenter also said we should defer the required submission of a final contract, perhaps until after a license is issued. While some contracts may not be final when the application is submitted, generally licenses should be issued only after all information is provided. In extenuating circumstances, MARAD may grant a conditional license. Finally, this commenter asked us to restrict the “other studies” required by (h)(2)(ii) to “construction-related” studies, and we have revised that paragraph accordingly.

§ 148.105(i). One commenter asked us to align this paragraph, regarding compliance with the Federal Water Pollution Control Act, with 148.105(z), concerning the processing of an application for which complete National Pollution Discharge Elimination System information is unavailable. We have revised this paragraph accordingly.

§ 148.105(i)(2). One commenter said the applicant should include all requests for required certifications with its application, to further the DWPA goal of a coordinated Federal mechanism for all certifications. We have amended this paragraph to clarify that the applicant must include a copy of its request for certification, in cases where actual certification has not yet been granted. Where the appropriate coordinating agency does not issue an actual certificate, it will conduct a formal review and recommend action to the Coast Guard and MARAD. Applicants may wish to work directly with coordinating agencies in conjunction with the Coast Guard and MARAD.

§ 148.105(m). One commenter requested more guidance as to the scope and purpose of a “reconnaissance hydrographic survey,” and another commenter asked us to limit the reconnaissance survey to basic information. We have revised this paragraph accordingly.

§ 148.105(n). One commenter suggested that collection of soil samples be restricted to areas seaward of the high water mark. We have declined to insert that restriction, because the National Environmental Policy Act requires the deepwater port environmental assessment to consider the onshore implications of actions “connected” to construction or operation of the port itself. Two commenters asked us to allow the use of existing environmental studies in areas where the data sources are credible, reliable, and meet Coast Guard and Environmental Protection Agency (EPA) requirements for site-specific environmental analysis. We have amended this paragraph accordingly. We also define when existing surveys need to be supplemented by new data collection.

§ 148.105(o). One commenter said applicants should submit archeological data with their applications. We agree and added this paragraph accordingly. Applicants may wish to coordinate their work in this area with the EPA and the Minerals Management Service (MMS).

§ 148.105(r). One commenter said that site-specific, detailed information should not be required with the application, but only prior to deepwater port start-up. We have revised this paragraph to allow applicants to address the details of compliance in the operations manual. We permit minor modifications or deviation from the original design after submission of the application, but we will not permit revisions that potentially affect the project's environmental analysis or the status of the application.

§ 148.105(s). We revised this paragraph to delete the requirement to provide design and evaluation studies. We had previously deleted a similar requirement for floating components.

§ 148.105(t). One commenter said that the required data for onshore components could put applicants at a competitive disadvantage by requiring them to disclose their plans for securing transportation and storage. Another commenter said our requirements for throughput information were onerous and overbroad and arose from historical competition concerns that did not materialize. We have revised this paragraph, eliminating many requirements that appeared in the NPRM. These revisions should meet both commenters' objections.

§ 148.105(u). One commenter said we should eliminate the support vessel requirements of (u)(3) and (u)(4) because these requirements are already addressed in the operations manual. This is essential information and therefore we continue to require it to be addressed, briefly, in the application.

§ 148.105(w). One commenter said that the draft operations manual should be submitted at least one year prior to port start-up, but should not be required with the application because meaningful information is available only later. We believe a draft manual that demonstrates the applicant's ability

to operate its proposed port safely and effectively is an indispensable element of the application process and can be supplemented as information changes. We think this paragraph, as revised, furnishes adequate guidance so that preparation of the draft manual will be a meaningful exercise for the applicant. Another commenter said an applicant should be allowed to show sufficient competence and experience to manage a deepwater port by demonstrating knowledge of MMS regulations for OCS structures. We agree and have amended this paragraph accordingly.

§ 148.105(x). One commenter said that the environmental review criteria should consider air quality and incorporate relevant environmental statutes from adjacent coastal States. We think this paragraph and subpart G adequately reflect the applicant's need to describe how it will comply with all applicable environmental laws, including those related to air quality. The same commenter recommended a 10,000-year return period for evaluating the imposition of environmental loads, and requiring periodic reviews of assumptions used in the applicant's analysis. We think a 100-year return period conforms to international standards, and that 33 CFR part 148, subpart G provides the applicant with proper guidance for conducting its analysis. Two other commenters said we should allow the use of existing environmental studies in areas where the data sources are credible, reliable, and meet Coast Guard and Environmental Protection Agency (EPA) requirements for site-specific environmental analysis. We amended this paragraph accordingly. We define when existing surveys need to be supplemented by new data collection.

§ 148.107. Three commenters asked us to eliminate duplicative or obsolete antitrust-oriented language related to document filing, which we have done.

§ 148.108. One commenter asked us to consider costs and timing before complying with another agency's request for additional information. We have amended this section accordingly.

§ 148.110. One commenter said an applicant should be allowed to request advance environmental scoping meetings with relevant agencies. We have reworded this section to emphasize that anyone can consult with the Coast Guard about the requirements of this subchapter, including its environmental requirements; MARAD may also be available for such consultation. This commenter also recommended letting applicants coordinate the preparation and review of applications through memoranda of understanding with relevant agencies or similar mechanisms. In this section, we encourage applicants to confer with the Coast Guard and MARAD. We do not think a more formal mechanism is needed.

§ 148.115. We have reduced, from 15 to 6, the initial required number of printed copies of the application. Applications now must be sent in electronic format as well. This eases the paperwork burden on applicants, and recognizes the modern availability of electronic media. Additional print copies must still be supplied upon the request of a relevant agency. Our current best guess is that as many as 30 print copies may be requested, but the regulation contains no upper limit on this figure.

§ 148.125. Two commenters objected to the increased application fee and asked for controls on the amount of additional costs that can be assessed. We explained the rationale for raising the fee in the 2002 NPRM. We have amended this section to provide that applicants will receive periodic information about the costs of processing their applications.

§ 148.207. One commenter said we should make the publicly available documents for any deepwater port application available to the public through the Department of Transportation's Docket Management Facility. That is our current practice, which we expect to continue, either through the Docket Management Facility or some similar service. Should such a service become unavailable, the Coast Guard would still maintain its official docket and make it available for public inspection in accordance with this section.

§ 148.209. We added language specifying the key Federal and State agencies that receive copies of the application.

§ 148.211. We revised this section in conformance with changes we made to 148.115 (initial filings).

§ 148.215. We added language requiring the applicant to estimate the economic impact on a connected port that may be planning to deepen its draft channels.

§§ 148.276 and 148.277. One commenter recommended referencing DWPA's timeline for processing license applications, in order to emphasize the need for prompt action. We have amended these sections accordingly.

§ 148.279. We revised this section to eliminate possible confusion with the statutory requirements for issuing a deepwater port license, which are found in 33 U.S.C. 1503.

§ 148.305. One commenter said that we should allow the COTP to interpret and approve adjustments to operations manuals. We have revised this section, which is informational in nature, to refer readers to DWPA, which governs licensing. The actual license is issued by MARAD, whose rules and procedures can be consulted for further information.

§ 148.307. We deleted a reference to the Administrator of MARAD because the Coast Guard cannot make a rule for that agency. This does not imply a change in MARAD's policy of consulting with applicants.

§ 148.415. One commenter expressed support for our decision to delete the preliminary report requirement from this section.

§ 148.610. A section with this designation appeared in the 2002 NPRM. It specified the limit of liability for the one existing deepwater port, the Louisiana Offshore Oil Platform (LOOP). One commenter asked us to explain how LOOP's financial liability cap was determined and how the liability cap for future oil deepwater ports will be determined. Determination of LOOP's cap is discussed in the

Federal Register

at 60 FR 39849 (August 4, 1995). The Secretary's authority under 33 U.S.C. 2704(d)(2) to modify the statutory $350 million limit of liability for deepwater ports has been delegated to the Coast Guard. We have deleted this section from the temporary interim rule because it has no general applicability and was included only for informational purposes.

Subpart G (§ 148.700

et seq.

). As explained earlier, this subpart contains material that formerly appeared as Appendix A to part 148. We believe the regulatory nature of much of this material is clarified by placing it in the textual body of part 148.

§ 148.702. One commenter asked for clarification of the criteria used in a Phase I determination under Appendix A. In this revised subpart, we no longer use the Phase I and Phase II terminology of former Appendix A.

§ 148.707. One commenter asked us to require tankers to use low-sulfur fuel, and also said we should take regional air quality into account. We think this section, which is informational in nature, correctly expresses the environmental criteria contained in DWPA and allows for a balanced assessment of a proposed port's environmental impact.

§ 148.720. One commenter recommended that construction be allowed even in areas with high pollutant or hazardous material levels, if the applicant shows some good cause

and demonstrates its ability to minimize adverse environmental impacts. This would not provide adequate protection against risks to the local ecosystem, so we continue to require applicants to identify viable alternative locations for proposed ports.

§ 148.730. One commenter said former Appendix A was overbroad in how it discouraged conflict with existing or planned land use, and said we should limit our scope to conflicts that adversely affect the environment. As revised, this section contains no absolutes, but evaluates proposals on how well they accord with existing or planned land use.

§ 149.1. One commenter said this part should require each deepwater port to be equipped with an Automatic Identification System (AIS). The commenter provided no rationale. At this time we see no need to mandate the use of AIS for deepwater ports.

§ 149.10. We revised this section to refer applicants to the Coast Guard Website for approved equipment and to refer to the Marine Safety Center's approval of engineering equipment.

§ 149.15. We added this section to inform applicants and licensees of their responsibilities when considering changes to a port.

§ 149.103. One commenter recommended removing requirements for discharge containment and removal equipment, since these are addressed in facility response plans. We agree and have amended this section accordingly.

§ 149.125. We expanded this section to account for natural gas facilities and provide further guidance.

§ 149.130. We added paragraph (c) to account for the possibility of an unmanned port.

§ 149.140. We added paragraph (b) to account for the possibility of an unmanned port.

§ 149.150. Two commenters addressed this section concerning receipt of vessel oil residues. One commenter recommended deleting the section or conforming it to former 33 CFR 149.321. The second commenter said a port should be capable of receiving oil residues from all vessels servicing it and that no waivers should be granted. We have removed this section because it is unnecessary in light of the promulgation of 33 CFR part 158 (Reception Facilities for Oil, Noxious Liquid Substances, and Garbage) in 1987. Waivers and alternatives are allowed under part 158;

see

33 CFR 158.150.

Subpart C (§ 149.300

et seq.

). As noted earlier, we revised this subpart by setting out in detail provisions, originally developed for the 1999 OCS Activities NPRM, that were only cross-referenced in the 2002 Deepwater Ports NPRM.

§ 149.304. In the 2002 Deepwater Ports NPRM we authorized the use of lifefloats as survival craft for deepwater ports. After further review, we have removed reference to lifefloats from this temporary interim rule because we find them unsuitable in terms of seaworthiness and personnel protection from the elements to operate in an exposed offshore environment.

§ 149.310. One commenter on the 1999 OCS Activities NPRM said the forerunner to this section improperly regulated workers rather than operators. Our revision of this section to make it less prescriptive eliminated the objectionable language.

§ 149.313. We modified this section as it appeared in the 1999 OCS Activities NPRM, to clarify that survival craft must be adequate to accommodate all persons authorized to berth on the facility, and to require craft to be located near the berthing area.

§ 149.314. One commenter said rescue boats should not need to meet SOLAS standards. We do not agree. Rescue boats need Coast Guard approval under approval series 160.156, and such boats meet SOLAS requirements. Deepwater ports (oil or natural gas) are located in exposed offshore locations where open and/or non-motorized boats approved under approval series 160.056 are not suitable, under 46 CFR 160.056.

§ 149.330. One commenter on the 1999 OCS Activities NPRM said that the forerunner to this section required “consequential” revision of another section, and said that the forerunner language improperly regulated workers rather than operators. We have revised this section to clarify that it is the operator who is regulated. Other revisions intended to make the temporary interim rule less prescriptive have eliminated the need for the requested consequential action. Another commenter on the 1999 NPRM said that in some circumstances deck suits provide better protection than work vests. The revised section allows the use of deck suits.

Subpart D (§ 149.400

et seq.

§ 149.402. One commenter said Coast Guard approval for optional firefighting and lifesaving equipment is unnecessary if the equipment complies with industry standards. As explained previously, we are not ready to incorporate industry standards in this temporary interim rule. It is long-standing Coast Guard practice to inspect critical equipment designed to provide personnel safety, whether that equipment is optional or required. In an emergency, optional equipment may be used, in which case it must perform to the same standards as required equipment. We also restructured the section for better clarity.

§ 149.411. Two commenters on the 1999 OCS Activities NPRM referred to the forerunner of this section. One made no specific comment and the other said there is no need for firemen outfits since we do not require personnel to stay and fight fires. While there are some situations in which it will be inadvisable to stay and fight a fire, there will be other times when firefighting makes sense, and in those cases firefighters should be properly outfitted. We have revised the section, however, by eliminating details in favor of a cross reference to 46 CFR 108.497.

§ 149.412. One commenter on the 1999 OCS Activities NPRM referred to the forerunner of this section, and said that requiring fire axes makes sense only if we require personnel to stay and fight fires, which we do not. While there are some situations in which it will be inadvisable to stay and fight a fire, there will be other times when firefighting makes sense, and in those cases firefighters should be properly equipped.

§ 149.413. Two commenters on the 1999 OCS Activities NPRM referred to the forerunner of this section. One said we should not require systems to be approved, because the Coast Guard has no system approval process. This is not correct. Fire extinguishing equipment is approved by the Coast Guard under its “approval series” process,

e.g.

approval series 162.036 for fixed carbon dioxide fire extinguishing systems and approval series 162.162 for engineered inert gas fire extinguishing systems. This commenter also said that fixed systems to cover smaller galley ranges would be overkill and that we should set a minimum size in paragraph (b). We think ranges of any size pose a hazard that should be addressed by a fixed system and therefore we are retaining this requirement. The second commenter implied that we should include references to fire protection requirements for crude oil and flammable liquids with low flash points. We believe the section as revised provides adequate guidance, but applicants can consult with the Coast Guard if they need additional information about protection against specific hazards.

§ 149.415. We revised this section in keeping with our overall approach in this temporary interim rule, aligning manned deepwater port fire main system requirements with the 46 CFR part 108 requirements for such systems on mobile offshore drilling units.

§ 149.418. We revised this section in keeping with our overall approach in this temporary interim rule, removing several prescriptive elements contained in the 1999 OCS Activities NPRM.

§ 149.419. One commenter on the 1999 OCS Activities NPRM asked us to allow chemical firefighting systems in addition to water-based systems. We agree that chemical firefighting systems are important and have added this section, which mandates dry chemical systems.

§§ 149.420, 149.422. One commenter on the 1999 OCS Activities NPRM's forerunners to these sections asked us to grandfather their provisions. We do not address that request in this rulemaking because the only existing deepwater port is already considered to be in compliance with the temporary interim rule, and therefore grandfathering is not a relevant concern for deepwater ports.

Subpart E (§ 149.500

et seq.

). One commenter noted that the Aids to Navigation (ATON) provisions contained in the 2002 NPRM may be unsuitable for future deepwater ports whose structures and platforms are not all located above the surface. We agree and have revised this subpart accordingly.

§§ 149.520 through 149.565. We have revised these sections, simplifying them wherever possible by referencing 33 CFR part 67 (Aids to Navigation on Artificial Islands and Fixed Structures) which we believe provides adequate guidance.

§ 149.535. Although other sections in this subpart have been eliminated or revised (

see

the general comment for Subpart E, above), we have retained this section's requirements for a rotating beacon to distinguish the deepwater port from other offshore facilities.

§ 149.540. One commenter recommended waiving ATON requirements for a simplified port structure consisting of submerged components. We have amended this section accordingly. We also added paragraph (c) and made other changes pertaining to submerged turret loading (STL) deepwater ports, which were not contemplated when we issued the 2002 NPRM.

§ 149.550. To aid in streamlining these rules, we revised this section to require compliance with the “Navigation Rules” that specifically address these lights.

§ 149.570. We revised this section to include requirements for identifying single point moorings and submerged turret loading buoys, which are potential features of future deepwater ports.

§ 149.580. Because future deepwater ports may not have pumping structures, we reworded this section so that the radar beacon is placed on the port's highest fixed structure.

§ 149.585. One commenter recommended requiring the sounding of a fog signal only when the visibility is considerably less than the present 5 nautical miles. This requirement, for a Class “A” structure such as a deepwater port, is set by 33 CFR 67.20-10(b); hence the comment is outside the scope of this rulemaking. We substituted “sound” signal for “fog” signal in this section to be consistent with international terminology.

§§ 149.615 and 149.620. One commenter suggested that initial design phase construction drawings and specifications be sent to the Marine Safety Center (MSC) rather than to the Commandant (G-M). For administrative reasons, these drawings and specifications should come to the Commandant (G-M). Upon receipt, a copy of the application and all attachments are sent to the Marine Safety Center. We have revised 149.620 to state that the Commandant (G-M) may engage or work cooperatively with MSC in evaluating technical matters.

§ 149.620. One commenter recommended that an applicant-selected classification society review and approve engineering and technical specifications for a deepwater port concept. The Coast Guard would review firefighting and lifesaving plans. Various classification societies have recently published guidelines for offshore LNG terminals. The Coast Guard will review and may accept class society guidelines as a basis for a particular port's design, but until we have completed a review and analysis of these guidelines, we are not prepared to accept them for approval standards. Once the guidelines have been reviewed the role of classification societies in the review or approval of deepwater port plans will be determined.

§ 149.625. Five commenters asked us to modify this section as it appeared in the 2002 NPRM, to allow the use of a greater range of standards. In keeping with the overall approach we have taken in the temporary interim rule, paragraph (a) now defines the performance we expect and allows each applicant to determine how best to achieve that performance. We neither prescribe nor preclude the use of industry or other outside standards.

§ 149.630. We deleted this section as unnecessary. Its substance is incorporated in §§ 149.640 and 149.641.

§ 149.641. One commenter on the 1999 OCS Activities NPRM was confused by our use of the term “accommodation spaces” in a forerunner to this section. We think the distinction between accommodation modules and the spaces they contain is clear from the definitions included in § 149.5. The commenter said we should limit our requirements to the location of accommodation spaces and modules, avoiding requirements on design (such as providing protection from blast effects) that were detailed elsewhere in the 1999 NPRM. We have not carried over those detailed design requirements to this temporary interim rule, and think this section properly addresses design considerations for deepwater ports. The commenter said our reference to hazardous or toxic substances in the forerunner to (b)(2) was unduly vague. Hazardous or toxic substances are those that could harm the health of a person in an accommodation space or module. Specific substances vary depending on the nature of the facility. Ports can also comply with (b)(2) by satisfying the alternative provisions now provided in paragraph (c). The commenter suggested deleting a reference to “hydrogen sulfide” in the forerunner to (b)(2); we agree that this specific Minerals Management Service-derived requirement is only needed where gas is expected to be present, and made the deletion for this temporary interim rule.

§ 149.650. We have revised this section to address novel or innovative engineering design, one of DPMA's key objectives.

§ 149.660. We adjusted the length of the continuous period required in (a), from 8 hours to 18 hours. The longer period is consistent with the requirements for non-passenger vessels on international voyages that are defined in 46 CFR 112.05-5, which was first promulgated several years after the original deepwater port regulations were issued in 1975.

§§ 149.690 through 149.692. One commenter suggested decoupling the provisions for means of escape from the 1999 OCS Activities NPRM, and said we should retain the existing (“old”) part 149 requirements. We have carefully reviewed the 1999 NPRM, adopting and adapting its proposals to the Deepwater Ports context. We believe that this approach is superior to continued reliance on our 1975 regulations.

One commenter on the 1999 OCS Activities NPRM said we should revise

the forerunner to 149.691 (d) so that unmanned facilities can substitute one or more secondary means of escape for a primary means of escape. Section 149.692 (e)(2) of this temporary interim rule accomplishes what the commenter requested. We also clarify that the secondary means of escape must be located in work areas.

§ 149.693. One commenter on the 1999 OCS Activities NPRM objected to NPRM's requirement that each deepwater port have at least two personnel landings. We agree that the requirement should be modified, and have revised this section so that it generally follows current 33 CFR 143.105.

§ 149.694. One commenter on the 1999 OCS Activities NPRM asked us to consider adding “horizontal work surfaces” to the “decks” covered by a forerunner to this section. As part of our overall updating of this section, we included a reference to 33 CFR 143.110 which covers “floors” as well as decks. We think this addresses the commenter's concern.

§ 149.696. We revised this section as it appeared in the 1999 OCS Activities NPRM by substituting a reference to 46 CFR 108.235 for the NPRM's more detailed specifications; we believe the referenced statute provides adequate guidance and that this approach is in keeping with our overall goal of updating deepwater port regulations.

§ 149.697. Five commenters addressed the forerunners to this section that appeared in the 1999 OCS Activities NPRM. Two made comments directed to the specific wording of those forerunners, which they believed affected substance; our general approach to industry standards, explained above, addresses one of these comments, and minor rewordings make the other comments irrelevant to this temporary interim rule. One commenter said the section should not apply to offshore supply vessels; OSVs are not covered by this temporary interim rule so we are not addressing that comment at this time. One commenter favored an 87 decibel threshold in order to screen out noises of little concern, and favored deleting the time weighted average. This commenter also said that a new survey should be triggered by the placement of equipment near, as well as in, an affected space. Triggering events for new surveys were detailed in the 1999 NPRM, but our performance-based temporary interim rule reserves this issue for treatment in each port's operations manual (

see

§ 150.15(o)). Although the 1999 NPRM used an 87 decibel figure, we have lowered this to 85 decibels, for consistency with 46 CFR 58.01-50 and IMO Resolution A.468(XII). We also are retaining the time weighted average because that methodology is consistent with those authorities. The fifth commenter said we should require noise surveys only in marginal areas where it is not clear whether noise could be a problem, and favored simplifying signage requirements for high-noise areas. We have revised the requirements that appeared in the 1999 OCS so that the operator can specify the survey methodology it chooses. We believe the wording presently required for signage meets the commenter's desire for simplicity.

§ 150.10. One commenter asked us to protect certain critical information in the operations manual from disclosure under the Freedom of Information Act. Although the draft manual submitted with an application is placed in the public docket, where it is subject to the procedural protections afforded by part 148, subpart C, the detailed operations manual required before a port begins operations is reviewed exclusively within the Coast Guard and is not made public. Another commenter said the local COTP should approve the operations manual before it is reviewed by the Commandant (G-M). We believe consistency requires review to take place at the Commandant (G-M) level, but this section indicates that the Commandant (G-M) may consult with the local Officer in Charge, Marine Inspections (OCMI). One commenter asked whether we would allow a grace period for the operator of the one existing deepwater port to prepare an operations manual that conforms to this temporary interim rule. We consider the existing deepwater port to be in compliance with this rule, so that subsequent changes to that port's operations manual will be governed by paragraph (c) of this section.

§ 150.15. Several commenters recommended that we amend these rules to be less prescriptive and more performance-based, in the spirit of the Deepwater Port Modernization Act of 1996. They specifically requested that the NPRM's detailed requirements for personnel qualifications, port communications, vessel operations, cargo transfer operations, emergency procedures,

etc.,

be eliminated in favor of a general requirement that these topics be addressed by the applicant in the port operations manual required by this section. Now that deepwater ports may include natural gas facilities, we anticipate much greater variety in their operating requirements, and we think it is appropriate to give operators flexibility in planning for how they will address those requirements. Accordingly we have eliminated numerous specific provisions that appeared throughout part 150 in the NPRM. Now, the operations manual will be the vehicle for describing how a port will meet the standards set for each topic. In order to accommodate this change in approach, we have regrouped and expanded the language of this section; see for instance paragraphs (j), (k), (l), (o), (p), (q), (s), (t), (u), (v), (x), and (y).

§ 150.15(c). One commenter said we should clarify engineering and construction specifications that must be met prior to licensing, and indicate that certain specifications can be provided as post-licensing conditions. We believe the revised language of this section furnishes adequate guidance as to what needs to be in the operations manual. We added the second and third sentences because schematics are critical to our understanding of engineering and construction information.

§ 150.15(d). One commenter said we should require a deepwater port to maintain radio communications with helicopters transiting the safety zone. We agree that each port should describe its procedures for maintaining communication with nearby aircraft and have revised this paragraph accordingly.

§ 150.15(h). One commenter recommended that vessel squat be factored when determining certain net under-keel clearances (UKC). Although vessel squat is not explicitly mentioned in this paragraph, and it's likely to have negligible impact, we expect it to be included in figuring net UKC and to be shown in supporting documentation.

§ 150.15(i). One commenter said that, in addition to the tanker navigation procedures discussed in this paragraph, we should require a port to “vet” calling tankers for compliance with safety and environmental standards. We think this is a common practice in the energy industry, but decline to specify a vetting requirement here. Tank ships are already subject to U.S. and international regulations. A separate requirement for deepwater port vessels would be redundant of those regulations and also of part 150's provisions for ensuring personnel safety, professional proficiency, and environmental integrity.

§ 150.15(i)(7). Two commenters said the operations manual should define the deepwater port's weather limits. One said the manual needs to address the conditions for precautionary evacuation. We believe this paragraph meets these concerns.

§ 150.15(j). Three commenters supported moving various details of personnel titles and job descriptions to the operations manual. We believe this paragraph meets these concerns.

§ 150.15(l). One commenter recommended that a Person in Charge (PIC) be required for cargo transfer operations, to align with the Oil and Hazardous Materials in Bulk and OCS regulations. The operations manual now must discuss site-specific qualifications for a PIC.

§ 150.15(o). Four commenters addressed forerunners of this paragraph that appeared in the 1999 OCS Activities NPRM. One of these said the 1999 provisions impermissibly regulated workers rather than operators, and all four requested greater flexibility in our requirements for replacing worn personnel transfer nets. Because we have rewritten this section to provide deepwater port operators with flexibility in crafting their occupational health and safety training procedures, the specific language these commenters objected to does not appear in the temporary interim rule. One commenter asked us to use the term “personnel transfer devices” instead of “personnel transfer nets.” No reason was advanced in favor of the suggestion, though we note that another commenter on the 1999 NPRM remarked (also without explanation, and without referring to specific provisions of the 1999 NPRM) that the use of swing ropes as a means of transfer between vessels and platforms on the outer continental shelf deserves more standardization and study. Due to the unspecific nature of these comments and because at this time we think “nets” is sufficiently clear, we are retaining that terminology in the temporary interim rule.

§ 150.15(u). One commenter suggested that we require the operations manual to outline training requirements for emergency equipment operators. We have amended this paragraph accordingly.

§ 150.15(v). One commenter supported inclusion in the operations manual of a deepwater port security plan, developed in collaboration with the Coast Guard. This paragraph furnishes guidance for preparing a deepwater port security plan, and we encourage collaboration in its development.

§ 150.15(y). One commenter asked us not to require duplicative environmental monitoring in areas where monitoring already takes place in connection with other offshore activities. The operations manual can identify this sort of situation and prescribe only those monitoring measures that exceed those in use by other offshore facilities. Two commenters expressed concern over the “open-ended” nature of our requirements for environmental monitoring. We think the ongoing environmental monitoring outlined in paragraph (y) is important, but by allowing operators to set details of that monitoring in their operations manuals, we provide flexibility to address the concerns of these commenters.

§ 150.20. We added the first sentence to eliminate possible confusion between the requirements for draft and final operations manuals.

§§ 150.25 through 150.45. We revised these sections because the OCMI, not the COTP, is the proper Coast Guard official for amendments to the operations manual.

§ 150.30. Two commenters supported this section's approach in letting the COTP (now OCMI;

see

comment for §§ 150.25 through 150.45) approve amendments to the operations manual.

§ 150.50. We revised this section to address the addition of natural gas facilities. A natural gas deepwater port that also stores oil in quantity must develop an oil response plan as well as a natural gas facility emergency plan.

§ 150.100. One commenter said we should announce Coast Guard site inspections in advance and coordinate them with submission of the port's annual self-inspection report. As a regulatory agency, the Coast Guard reserves the right to conduct random, unannounced inspections to ensure facility compliance. However, this section does not require inspections. We have clarified this section to make clear that the OCMI may coordinate inspections with a port's annual self-inspection.

§ 150.105. One commenter pointed out the NPRM's inadvertent omission of paragraph (b)'s requirement for an annual self-inspection report, and another commenter asked us to clarify how to report equipment failures. We have corrected the omission, and will develop a new form, CG-5432A, that can be used for reporting self-inspections.

§ 150.110. At a commenter's suggestion, we added this section to reinstate requirements that appear in the 1975 regulations at 33 CFR 150.119 and 150.121. We wish to clarify that applicants can use a classification society other than the American Bureau of Shipping, and that we allow interim certification of innovative single-point moorings.

Subpart C (§ 150.200

et seq.

). We streamlined this subpart by removing many detailed requirements that no longer reflect the variety of deepwater ports that may be anticipated. We expect port-specific details to be included in a port's operations manual. One commenter said this subpart should allow an applicant to work with the COTP in developing personnel requirements for the operations manual. Although we do not require such consultation, it is certainly appropriate and possible for an applicant to consult the COTP during this development.

Subpart D (§ 150.300

et seq.

). We have complied with several requests to deal with matters such as radar surveillance, communications between port and vessels, and safety zone navigation restrictions in the operations manual rather than in regulations, because, in general, we think this is port-specific information best handled in the operations manual. However, we retain certain vessel navigation requirements in 33 CFR part 150, subpart D, because they pertain to all deepwater ports.

§ 150.305. We added this section because natural gas deepwater ports can be unmanned.

§§ 150.310, 150.320. We revised these sections to reflect the possibility of an unmanned natural gas deepwater port and to broaden their scope to include areas to be avoided in addition to safety zones, which are limited by international law to 500 meters.

§ 150.325. We revised this section to reflect changes in the advance notice of arrival reporting requirements found in 33 CFR part 160 and to include areas to be avoided in addition to safety zones, which are limited by international law to 500 meters.

§§ 150.330 through 150.350, 150.380. We revised these sections to include areas to be avoided in addition to safety zones, which are limited by international law to 500 meters.

§§ 150.365 through 150.375. We eliminated these three sections that appeared in the 2002 NPRM. Personnel titles and responsibilities now will be addressed by each operator in its operations manual.

§ 150.385. We revised this section because personnel titles and responsibilities now will be addressed by each operator in its operations manual.

§ 150.405. We reworded this section to reflect the addition of natural gas deepwater ports, and substituted the reference to 33 CFR 149.650 in paragraph (b) for references to industry standards.

§ 150.420. We revised this section in light of the addition of natural gas deepwater ports by referencing 33 CFR 127.405, and to reflect the treatment of

maintenance and repair provisions in each port's operations manual.

§ 150.425. Three commenters recommended transferring oil transfer procedures in this section to the operations manual. This is appropriate because these procedures are highly port-specific, and we have amended the section accordingly.

§§ 150.430, 150.435. One commenter said that the 2002 NPRM's 150.430, concerning connections to vessels, was too prescriptive. We deleted those provisions from this temporary interim rule. The current versions of 150.430 and 150.435 were revised in light of the addition of natural gas deepwater ports and the increased role of the operations manual in defining personnel titles and responsibilities.

§ 150.445. One commenter recommended deleting this section's requirement for displacing oil with water under certain conditions. We think it is important to retain the requirement, but a port may seek a waiver from the OCMI.

§ 150.500. We reworded this section to indicate that Subpart F's focus is on specific operational subsets rather than on operations generally.

§ 150.502. One commenter on the 2002 NPRM asked us to clarify whether repairs can be made without prior Coast Guard approval. Paragraph (f), which is based on the 1999 OCS Activities NPRM, explains that emergency repairs can be made without advance notification but that other repairs affecting the performance of lifesaving equipment must be preceded by notification. One commenter on the 1999 OCS Activities NPRM said that the forerunner to paragraph (e) should clarify that the operational lifeboats or rafts must be adequate to accommodate all persons on the deepwater port. We have retained the 1999 wording because we think it is sufficiently clear and that any revision risks greater confusion.

§ 150.503. Two commenters addressed the forerunner of this section that appeared in the 1999 OCS Activities NPRM. The first recommended a 4-year limit for survival craft falls under paragraph (c) instead of 5 years as provided for by the NPRM. This is consistent with Coast Guard rules for MODUs in 46 CFR 109.301 (j)(2), with IMO MODU Code 10.18.4, and with the requirements in SOLAS 74/83, chapter III, regulation 20.4.2, and we have revised the paragraph accordingly. The second commenter said we should lengthen inspection and replacement intervals because falls usually are located well above the wave zone. We think the 1999 NPRM intervals, as revised in (c), are required for safety and reflect the constant exposure of this equipment to the elements regardless of height above the wave zone.

§ 150.505. One commenter on the 1999 OCS Activities NPRM said that service intervals should be not less than every 5 years. This section allows a port either to follow manufacturer recommendations for intervals, or to set its own intervals in its planned maintenance program. We expect ports to set appropriate intervals, with manufacturer recommendations in mind. Ports may, but need not, agree with the commenter's suggested interval.

§ 150.514. One commenter on the 1999 OCS Activities NPRM's forerunner to this section said it needed to clarify that batteries should be replaced if their marked expiration date has passed. We have revised this section to make that point clearer.

§ 150.515. One commenter on the 1999 OCS Activities NPRM, apparently in reference to the forerunner of this section, suggested that monthly testing is excessive. We will not address the substance of this comment at this time, because neither the 1999 NPRM nor the temporary interim rule explicitly calls for monthly testing.

§ 150.517. Two commenters addressed the forerunner of this section that appeared in the 1999 OCS Activities NPRM. The first said that the “person familiar” should be the manufacturer's representative. The second said we should omit the requirement for the test supervisor's attestation. Manufacturer's representatives can be qualified to supervise tests, but we see no need to limit the pool of test supervisors to those persons. However, we retain the attestation requirement because it helps ensure that tests are supervised by persons with a proper degree of familiarity.

§ 150.518. One commenter on the 1999 OCS Activities NPRM advocated removing the requirement that a work vest, if no longer serviceable, be destroyed in the presence of a Coast Guard inspector. We have revised this section accordingly. We also reworded paragraph (a) to clarify that inspection by the owner or operator is mandatory.

§ 150.519. One commenter on the 1999 OCS Activities NPRM said weekly testing under paragraph (a) is excessive and that monthly tests would suffice. We have retained the weekly requirement because it is similar to the requirements for MODUs and cargo vessels in 46 CFR 109.211 (a)(1) and 46 CFR 97.15-30 (a). Conditions on deepwater ports are not sufficiently different to justify lesser frequency.

§ 150.520. One commenter on the 1999 OCS Activities NPRM said we should omit the requirement for testing fire extinguishers because the discharge needed for testing would destroy the device's usefulness pending recharging. We agree this is not the intended result, and have revised this section. It now cross references 46 CFR 31.10-18, which provides test methodologies adapted to the nature of different devices.

§ 150.555. One commenter said our rule should specify equipment standards for cranes. This new section ties the operation, maintenance, and testing of cranes to 46 CFR part 109.

§ 150.601. One commenter on the 1999 OCS Activities NPRM suggested we use “hazardous conditions” in place of “hazards,” because an operator can control conditions without necessarily eliminating hazards. Although the NPRM defined “hazards” so that only “hazardous conditions” were meant, in the interest of clarity we have revised this section to use the commenter's desired language. Another commenter on the 1999 NPRM said that the forerunner to this section improperly placed an employment-related duty on a “holder of a lease or permit” rather than on the employer. In the context of deepwater ports, we believe the port operator is the proper person to regulate and have worded this section accordingly.

§ 150.602. Two commenters on the 2002 NPRM supported our proposal for allowing voluntary safety and environmental management programs (SEMP) as an alternative to certain regulations on workplace safety and health, and a third commenter said we should make SEMP mandatory. We continue to see SEMP as a voluntary alternative and have added the second paragraph accordingly. One commenter on the 1999 OCS Activities NPRM reiterated its comment to the forerunner of 150.601, concerning employment-related duties, and we have revised this section as we revised 150.601.

§ 150.603. Five commenters addressed the forerunner to this section that appeared in the 1999 OCS Activities NPRM. One said it should not apply to offshore supply vessels (OSVs). OSVs are not covered by this temporary interim rule so we do not address that comment at this time. The four other commenters all said training requirements should be limited to basic safety training, and whatever is needed for the safety of others and performance of assigned duties, or else requested similar limiting language. In keeping

with this rulemaking's general approach, this section now requires training to be addressed in each port's operations manual.

§ 150.607. We reworded paragraph (b) to clarify that machinery and equipment must be either kept in proper working order or removed from the port.

§ 150.608. One commenter on the 1999 OCS Activities NPRM said that the forerunner to this section improperly placed an employment-related duty on a “holder of a lease or permit” rather than on the employer. In the context of deepwater ports, we believe the port operator is the proper person to regulate and have worded this section accordingly.

§ 150.609. Four commenters on the 1999 OCS Activities NPRM addressed the forerunner to this section. Three of these criticized the requirement that eye and face protectors carry informational markings, because markings eventually wear out. The temporary interim rule aligns our requirements with those of the Occupational Safety and Health Administration (OSHA) which are widely used in industry; we consider them sufficient for the deepwater port context. One commenter said the forerunner version regulated workers rather than operators. We have reworded this section to clarify that it is the operator that is being regulated. One commenter suggested reference to latest available standards; instead, we now require compliance with 29 CFR 1910.133, which should furnish the commenter with ample current guidance.

§ 150.610. One commenter on the 1999 OCS Activities NPRM asked that we delete the requirement that emergency equipment be positioned near the drill floor and in mudrooms. The revised language of this section continues to require positioning “where there is a reasonable probability that eye injury may occur” but, due to the expected variation in deepwater port design, our rule neither prescribes nor precludes which areas will meet that standard.

§ 150.611. One commenter on the 1999 OCS Activities NPRM said the forerunner to this section regulated workers rather than operators. We have reworded the section to clarify that it is the operator that is being regulated. Another commenter on the 1999 NPRM recommended that we set a “reasonable probability” standard for applying this section. That standard is used in 150.610 and 150.612 and we have revised this section to use that standard as well.

§ 150.612. Four commenters addressed the forerunner of this section that appeared in the 1999 OCS Activities NPRM. One said it regulated the worker rather than the operator. To prevent confusion on that count we have reworded the section. Three commenters criticized the requirement that footwear carry informational markings, because markings eventually wear out. The temporary interim rule aligns our requirements with OSHA's, which are widely used in industry; we consider them sufficient for the deepwater port context. Two commenters asked for other substantive changes in the requirement that are no longer relevant in light of the new OSHA-referenced language.

§ 150.613. Four commenters addressed the forerunner of this section that appeared in the 1999 OCS Activities NPRM. One said it regulated the worker rather than the operator while another joined the first commenter in pointing out that workers cannot tell if they are in a qualifying area unless it is posted; we reworded the section to prevent confusion as to who is regulated. The second commenter also said a reference to 46 CFR is needed to prevent confusion or conflict with rules affecting machinery spaces on inspected vessels. We do not think confusion or conflict is likely and have not referenced 46 CFR in this section. A third commenter favored lowering the 87-decibel limit provided in the NPRM to 83 decibels, while a fourth suggested removing references in the forerunner section to time weighted averages and specific industry standards. Our adoption of an 85-decibel limit and retention of time weighted averages is explained in the discussion of 149.697 above. We have adopted the OSHA standard for this section because of its widespread use in industry.

§ 150.614. Four commenters addressed the forerunner of this section that appeared in the 1999 OCS Activities NPRM. One said it regulated the worker rather than the operator; we reworded the section to prevent confusion as to who is regulated. Three commenters said that the 1999 NPRM improperly required protection for persons who may be in a hazardous area without actually being exposed to risk. A fourth commenter also objected to the 1999 language and asked that this section address only hazards routinely protected against by industry. We agree with all four commenters that, for deepwater ports, this section should address only persons who are actually exposed to risk, and we have reworded the section accordingly. We did not adopt the fourth commenter's suggestion because the section is meant to reach risks beyond those that are routinely protected against by industry.

§ 150.615. Two commenters addressed the forerunner of this section that appeared in the 1999 OCS Activities NPRM. Both asked for clarifying language as to which lockout and tagging procedures must be observed; we agree that for deepwater ports conjunctive and not disjunctive language is appropriate and have made the necessary revision. One commenter said the 1999 NPRM regulated the worker rather than the operator; we reworded this section to prevent confusion as to who is regulated.

§ 150.616. One commenter said the forerunner of this section that appeared in the 1999 OCS Activities NPRM improperly regulated the worker rather than the operator; we reworded the section to prevent confusion as to who is regulated. Another commenter on the 1999 NPRM said we should merely supply a “general duty clause statement” and pointed out that the 1999 tagout provisions applied only to electrical equipment. We believe the performance based language of the temporary interim rule addresses this commenter's first comment, and we reworded §§ 150.616 and 150.617 to apply to electrical, hydraulic, mechanical, and pneumatic equipment.

§ 150.617. Three commenters addressed the forerunner of this section that appeared in the 1999 OCS Activities NPRM. One said that it improperly regulated workers rather than operators; we reworded the section to prevent confusion as to who is regulated. This commenter also suggested that we require tags to conform to a specific industry standard. As discussed earlier, we are not ready to specify industry standards in this temporary interim rule. The second commenter said that the person who places the tag and the person who authorizes it should be identical. While this is generally the case, for operational flexibility we retain language from the 1999 NPRM that allows a tag to be removed by the person who placed it, as well as by that person's supervisor or by a relief person. The third commenter said we should merely supply a “general duty clause statement” and pointed out that the 1999 tagout provisions applied only to electrical equipment. We believe the performance based language of the temporary interim rule addresses this commenter's first comment, and we reworded §§ 150.616 and 150.617 to apply to electrical, hydraulic, mechanical, and pneumatic equipment.

§ 150.618. Three commenters addressed the forerunners of this section

that appeared in the 1999 OCS Activities NPRM. One said that the 1999 language improperly regulated workers rather than operators; we reworded this section to prevent confusion as to who is regulated. This commenter also suggested that engineering controls be given precedence over other measures for keeping exposure within permissible limits. We decline to adopt that suggestion because this temporary interim rule gives the operator flexibility to determine how it will implement measures that this section requires. The other commenters said that the forerunner to paragraph (a) should be broadened to cite references, other than material safety data sheets, that define permissible exposure. Our revision of (a) provides a broader basis for determining permissible exposure.

§ 150.619. Six commenters addressed the forerunners of this section that appeared in the 1999 OCS Activities NPRM. Two commenters said they were inapplicable to offshore supply vessels (OSVs), and two commenters remarked on a possible conflict with other provisions affecting inspected vessels. This temporary interim rule does not pertain to OSVs or inspected vessels so we do not address these comments at this time. One commenter said the 1999 NPRM regulated the worker rather than the operator; we reworded this section to prevent confusion as to who is regulated. Two commenters said that the 1.8 meter limit provided by this section unjustifiably sets a more stringent standard than the present 10 foot limit in 33 CFR 142.42. We adopted the new limit for consistency with OSHA standards (

see

29 CFR 1926.501(b)(1)). One commenter objected that the 1999 language required the use of fall arrests even when there is no hazard of falling. The revised section clearly targets “risks of falling.” Three commenters suggested changes in the 1999 provisions regarding the reuse of personal fall arrest systems. We have revised this section to remove conditions required for reuse. The operations manual discussion of maintenance procedures will need to show how a system is maintained in good working condition once it has been used. One commenter found our use of the phrase “irregular surfaces” to be vague. Due to the variation we expect in the design of deepwater ports, we have not attempted a more precise definition, but the degree to which a surface's irregularity presents a risk can be estimated by comparing the likely impact of a fall onto such a surface with the likely impact of other falls mentioned in the section,

i.e.

, falls onto exposed moving components, electrically energized cables or connectors, or water. One commenter said the Coast Guard cannot effectively regulate fall protection using the methods described in the 1999 NPRM, and favored substituting a “general duty clause” requiring employers to develop fall protection programs in keeping with applicable industry standards and specific deepwater port needs. We have revised the 1999 NPRM's language so that the temporary interim rule is less prescriptive and gives operators more flexibility in determining how to protect personnel from falls. One commenter asked us to consider requiring protective measures to prevent slipping in any area that is frequently wet. As revised, the temporary interim rule requires operators to take measures to control the risk of falling, tripping, or slipping due to loose material or wet conditions, including spills.

§ 150.620. Two commenters addressed the forerunners of this section that appeared in the 1999 OCS Activities NPRM. One said that the 1999 language improperly regulated workers rather than operators; we reworded this section to prevent confusion as to who is regulated. The other said this section should exempt rotating drilling equipment because proper safety training is more effective than machine guards. For the deepwater port context, we believe the revised wording of this section gives operators sufficient flexibility in how they provide adequate protection.

§ 150.621. Four commenters addressed the forerunner of this section that appeared in the 1999 OCS Activities NPRM. Three commenters suggested referencing an industry standard; as explained earlier we are not ready to include industry standards in this temporary interim rule. Two commenters said the 1999 language required tagout of slings but did not detail instructions for tagout. As revised, this section now references 29 CFR 1910.184, which describes the information needed when tagging defective slings. Two commenters said that the size and grade information we called for in 1999 is irrelevant. We have revised this section accordingly. One commenter said our rule should merely provide a general duty statement, and that current industry standards allow slings to sustain some damage before they are replaced. This section as revised is general in its terms, and the regulation it references (29 CFR 1910.184) provides clear guidance as to the type of damage necessitating immediate removal of a sling from service.

§ 150.622. Two commenters addressed the forerunner of this section that appeared in the 1999 OCS Activities NPRM. Both commenters objected to referencing electrical tagout requirements in a way that implied broader applicability. For deepwater ports, we think our intention for warning signs is adequately met by referencing OSHA regulations at 29 CFR 1910.144 and 1910.145, and thus we have deleted the objectionable language. One commenter asked us to reference industry standards. As explained earlier, we are not ready to reference specific industry standards in this temporary interim rule. The second commenter asked us to grandfather existing signs. Because the only existing deepwater port is in compliance with this temporary interim rule, grandfathering is not pertinent in the deepwater port context.

§ 150.623. One commenter on the 2002 NPRM said that the incorporation by reference of 1999 OCS Activities NPRM provisions meant that operators had to insure the presence of intermediate level emergency medical technicians during confined space entry operations, and objected to that requirement. In keeping with our overall performance-based approach to this temporary interim rule, we now require that the operator address in its operations manual any personnel issues related to confined space entry operations.

Ten commenters addressed the forerunners of this section that appeared in the 1999 OCS Activities NPRM. Seven commenters said all or substantial portions of our confined space safety proposals were excessive or unnecessary and should be replaced with industry standards; one commenter said the 1999 proposals would significantly increase the regulatory burden on industry with no improvement in and possible degradation to safety performance. We disagree with these comments. As noted in the 1999 NPRM at 64 FR 68430, a National Offshore Safety Advisory Committee (NOSAC) working group recommended that OCS activities rules cover work in confined spaces, and be based on Occupational Safety and Health Administration (OSHA) rules in 29 CFR 1910.146, 29 CFR part 1915, and on 46 CFR subpart 91.50. We substantially consolidated and reworded the 1999 confined space provisions in the interest of providing deepwater port operators with increased flexibility. This eliminated the specific requirements that some of these commenters found objectionable. Nevertheless, we continue to follow the

NOSAC recommendation and require port operators to structure their confined space safety programs consistently with OSHA standards. One commenter said these provisions should be inapplicable to offshore supply vessels, while another said these provisions were inadequate to protect workers on OSVs. This temporary interim rule does not apply to OSVs so we do not address these comments at this time. Three commenters requested changes in specific requirements that have been eliminated from this temporary interim rule in keeping with our performance based approach for deepwater ports.

§ 150.624. Three commenters addressed the forerunner of this section that appeared in the 1999 OCS Activities NPRM. One said it was inapplicable to offshore supply vessels. This temporary interim rule does not apply to OSVs so we do not address that comment at this time. The second commenter asked us to clarify when protective measures must be taken so that training programs could be tailored accordingly, and the third commenter suggested we add more detailed guidelines and procedures. We have revised this section so that it references an OSHA rule, 29 CFR 1910.1030, which provides detailed guidance for making exposure determinations and for protective measures, and which should address these commenters' concerns.

§ 150.715(b). We amended this paragraph relative to single-point moorings, in order to avoid confusing the treatment appropriate for conventional (surface) single-point moorings with the treatment of submerged turret-loading system buoys.

§ 150.720. We reworded this section for clarity.

§ 150.805. We revised the point-of-contact from the Commandant (G-M) to the OCMI because any site inspection will take place at the local level.

§ 150.815. We revised the description of personal injuries that require filing a casualty report to better align the requirements for deepwater ports with those for reporting marine casualties on vessels under 46 CFR 4.05-1.

§ 150.820. We changed the time for filing a written report from 10 days to 5 days, better aligning this section with the requirements for vessel marine casualty reports in 46 CFR 4.05-10.

§ 150.845. We removed specific positions from this section because such port-specific information will now be specified in the operations manual.

Subpart J (§ 150.900

et seq.

). We broadened these sections to include no-anchoring areas and areas to be avoided, because international law limits safety zones to 500 meters. We anticipate that deepwater ports may want to establish larger zones in which traffic can be made safe, through advisory if not mandatory means.

Regulatory Evaluation

This temporary interim 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 temporary interim rule to be so minimal that a full Regulatory Evaluation is unnecessary.

The Coast Guard is revising the regulations governing deepwater ports. They were written at a time when no deepwater ports existed on which to base regulations. Furthermore, the 1975 regulations applied only to deepwater ports that handle oil. This temporary interim rule is necessary to update the regulations with current technology, industry standards, and to incorporate recent statutory changes adding natural gas to the Deepwater Port Act. It will also align deepwater port regulations with relevant safety regulations that have been proposed for other fixed offshore facilities regulated under 33 CFR Subchapter N.

We expect the costs of this temporary interim rule to have a nominal effect on the owners and operators of deepwater ports. Currently, there is only one licensed and operating deepwater port, the Louisiana Offshore Oil Port (LOOP). We consider LOOP to be in compliance with the provisions of this rule. LOOP represents industry standards for deepwater ports, aside from some operating and firefighting differences relevant to natural gas deepwater ports and small unmanned deepwater ports.

Based upon discussion with industry, we anticipate fewer than 10 deepwater ports will be licensed and operating within the next 10 years. We expect that these new entrants will follow existing industry standards and, therefore, will incur at most the same costs as the existing compliant deepwater port. We assume that no deepwater port will be larger or more extensive than LOOP, and therefore none will incur any additional costs. We also assume that the design and construction of new deepwater ports (manned or, to the extent applicable, unmanned) will follow the industry standard for manned deepwater ports.

The temporary interim rule is also consistent with the deepwater port industry's request to have its regulations aligned with the current industry standards and future OCS regulations. Hence, the benefits are the result of updating and removing any regulations that are obsolete or unnecessary.

We expect no new collection of information burden to be placed on the affected entities because industry is already compliant with safety and training reporting activities. The Coast Guard considers that the reporting requirements established by current industry practice will aid its ability to enforce regulations, thereby promoting the safety of life and property on deepwater ports. Furthermore, by recording training and safety inspection information, deepwater ports will increase their own safety level by improving accident readiness, noise level awareness, and lifesaving equipment preparation.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this temporary interim 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.

There is one entity composed of large multinational corporate owners that operates the existing deepwater port, LOOP. The North American Industry Classification System (NAICS) code for LOOP is 488320, Marine Cargo Handling. According to the Small Business Administration's definition, a company with this NAICS code and earning revenue less than $18.5 million per year is considered a small entity. LOOP does not qualify as a small entity because its gross revenue exceeds $18.5 million. We assume that new industry entrants will be comparable in size to LOOP with large corporate ownership and, thus, will not be small businesses.

Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this temporary interim rule will not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule will have a significant economic impact on it, please submit a comment to the Docket Management

Facility at the address under

ADDRESSES.

In your comment, explain why you think it qualifies and how and to what degree this rule would economically affect it.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this temporary interim rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Robert Spears, Project Development Division (G-MSR-2), telephone 202-267-1099, fax 202-267-4547.

Collection of Information

This temporary interim rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

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 temporary interim rule under that Order and have determined that it does not have implications for federalism. This rule applies to deepwater ports only in waters beyond the territorial limits of the United States (33 U.S.C. 1501(a)(1)). As regulation of these deepwater ports is beyond State seaward boundaries, this rule will not preempt State law.

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 temporary interim rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

Indian Tribal Governments

This temporary interim 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.

Energy Effects

We have analyzed this temporary interim 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.

Taking of Private Property

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

Civil Justice Reform

This temporary interim 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 temporary interim 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.

Environment

We have considered the environmental impact of this temporary interim rule and concluded that, under figure 2-1, paragraphs (34)(a), (c), (e), and (i), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. The environmental impact associated with requiring additional equipment, training, safety inspections and recordkeeping under this rule will have an insignificant impact on the environment and will benefit the environment by requiring safe operations of deepwater ports. The environmental impact of each deepwater port applicant is assessed under the licensing process. A “Categorical Exclusion Determination” is available in the docket where indicated under

ADDRESSES

List of Subjects

33 CFR Part 148

Administrative practice and procedure, Environmental protection, Harbors, Petroleum.

33 CFR Part 149

Fire prevention, Harbors, Marine safety, Navigation (water), Occupational safety and health, Oil pollution.

33 CFR Part 150

Harbors, Marine safety, Navigation (water), Occupational safety and health, Oil pollution, Reporting and recordkeeping requirements.

For the reasons discussed in the preamble, the Coast Guard revises 33 CFR chapter I, subchapter NN, as follows:

SUBCHAPTER NN—DEEPWATER PORTS

PART 148—DEEPWATER PORTS: GENERAL

Subpart A—General

Sec.

148.1

What is the purpose of this subchapter?

148.2

Who is responsible for carrying out this subchapter?

148.3

What Federal agencies are responsible for carrying out the Deepwater Port Act?

148.5

How are terms used in this subchapter defined?

Subpart B—Application for a License

148.100

What is the purpose of this subpart?

148.105

What must I include in my application?

148.107

What additional information may be required?

148.108

What if a Federal or State agency or other interested party requests additional information?

148.110

How do I prepare my application?

148.115

How many copies of the application must I send and where must I send them?

148.125

What are the application fees?

Subpart C—Processing Applications

General

148.200

What is the purpose of this subpart?

148.205

How are documents related to the application maintained?

148.207

How and where can I view docketed documents?

148.209

How is the application processed?

148.211

What must I do if I need to change my application?

148.213

How do I withdraw my application?

148.215

What if a port has plans for a deep draft channel and harbor?

148.217

How can a State be designated as an adjacent coastal State?

148.221

What must I do to make a claim or object to a claim?

Public Meetings

148.222

When must public meetings be held?

148.227

How is a public meeting reported?

Formal Hearings

148.228

What if a formal evidentiary hearing is necessary?

148.230

How is notice of a formal hearing given?

148.232

What are the rules for a formal hearing?

148.234

What are the limits of an administrative law judge's jurisdiction?

148.236

What authority does an administrative law judge have?

148.238

Who are the parties to a formal hearing?

148.240

How does a State or a person intervene in a formal hearing?

148.242

How does a person who is not a party to a formal hearing present evidence at the hearing?

148.244

Who must represent the parties at a formal hearing?

148.246

When is a document considered filed and where must it be filed?

148.248

What happens when a document does not contain all necessary information?

148.250

Who must be served before a document is filed?

148.252

What is the procedure for having a subpoena served?

148.254

How is a transcript of the hearing prepared?

148.256

What happens at the conclusion of a formal hearing?

Approval or Denial of the Application

148.276

When must the application be approved or denied?

148.277

How may Federal agencies and States participate in the application process?

148.279

What are the criteria for approval or denial of an application?

148.281

What happens when more than one application is submitted for an oil deepwater port for the same application area?

148.283

When is the application process stopped before the application is approved or denied?

Subpart D—Licenses

148.300

What does this subpart concern?

148.305

What is included in a deepwater port license?

148.307

Who may consult with the Commandant (G-M) on developing the conditions of a license?

148.310

How long does a license last?

148.315

How is a license amended, transferred, or reinstated?

148.320

How is a license enforced, suspended, or revoked?

Subpart E—Site Evaluation and Pre-Construction Testing

148.400

What does this subpart do?

148.405

What are the procedures for notifying the Commandant (G-M) of proposed site evaluation and pre-construction testing?

148.410

What are the conditions for conducting site evaluation and pre-construction testing?

148.415

When conducting site evaluation and pre-construction testing, what must be reported?

148.420

When may the Commandant (G-M) suspend or prohibit site evaluation or pre-construction testing?

Subpart F—Exemption From or Adjustments to Requirements in This Subchapter

148.500

What does this subpart do?

148.505

How do I apply for an exemption?

148.510

What happens when a petition for exemption involves the interests of an adjacent coastal State?

148.515

When is an exemption allowed?

148.600

What is the limit of financial liability?

148.605

How is the limit of liability determined?

Subpart G—Environmental Review Criteria for Deepwater Ports

148.700

How does the Deepwater Port Act interact with other Federal and State Laws?

148.702

How were the environmental review criteria developed?

148.705

What is determined by the environmental evaluation?

148.707

What type of criteria will be used in an environmental review and how will they be applied?

148.708

Must the applicant's proposal reflect potential regulations?

148.709

How are these criteria reviewed and revised?

148.710

What environmental conditions must be satisfied?

148.715

How is an environmental review conducted?

148.720

What are the siting criteria?

148.722

Should the construction plan incorporate best available technology and recommended industry practices?

148.725

What are the design, construction and operational criteria?

148.730

What are the land use and coastal zone management criteria?

148.735

What are other critical criteria that must be evaluated?

148.737

What environmental statutes must an applicant follow?

Authority:

33 U.S.C. 1504; Department of Homeland Security Delegation No. 0170.1 (75).

Subpart A—General

§ 148.1

What is the purpose of this subchapter?

This subchapter prescribes regulations for the licensing, construction, design, equipment, and operation of deepwater ports under the Deepwater Port Act of 1974, as amended (33 U.S.C. 1501-1524) (the Act).

§ 148.2

Who is responsible for carrying out this subchapter?

Unless otherwise specified, the owner of a deepwater port must ensure that the requirements of this subchapter are carried out at that port.

§ 148.3

What Federal agencies are responsible for carrying out the Deepwater Port Act?

Under delegations from the Secretary of Homeland Security and the Secretary of Transportation, the Coast Guard and the Maritime Administration (MARAD) coordinate with each other in processing applications for the issuance, transfer, or amendment of a license for the construction and operation of a deepwater port. MARAD is responsible for issuing, revoking, and reinstating deepwater port licenses. MARAD also has authority over the approval of fees charged by adjacent coastal States and certain matters relating to international policy, civil actions, and suspension or termination of licenses. The Secretary of Transportation has delegated authority over pipeline matters to the Research and Special Programs Administration (RSPA).

§ 148.5

How are terms used in this subchapter defined?

As used in this subchapter:

Act

means the Deepwater Port Act of 1974, as amended (33 U.S.C. 1501-1524).

Adjacent coastal State

means any “coastal State” that

(1) Would be directly connected by pipeline to a “deepwater port”;

(2) Would be located within 15 miles of a “deepwater port”; or

(3) Is designated as an “adjacent coastal State” by the Administrator of the Maritime Administration under 33 U.S.C. 1508(a)(2).

Administrator of the Maritime Administration

means the Associate Administrator, Port, Intermodal and Environmental Activities, Maritime Administration, or that individual's authorized representative, at 400 Seventh Street SW., Washington, DC 20590, telephone 202-366-4721.

Affiliate

means a “person”:

(1) That has an ownership interest, direct or indirect, of more than 3 percent in an “applicant”;

(2) That offers to finance, manage, construct, or operate the “applicant's” “deepwater port” to any significant degree;

(3) That owns or “controls” an “applicant” or an entity under paragraphs (1) or (2) of this definition; or

(4) That is owned or “controlled” by, or under common ownership with, an “applicant” or an entity under paragraphs (1), (2), or (3) of this definition.

Applicant

means a “person” that is the owner of a proposed deepwater port and that is applying for a license under this part for that port.

Application

means an application submitted under this part for a license to own, construct, and operate a deepwater port.

Approval series

means the first six digits of a number assigned by the Coast Guard to approved equipment. Where approval is based on a subpart of 46 CFR chapter I, subchapter Q, the approval series corresponds to the number of the subpart. A list of approved equipment, including all of the approval series, is available at

http://cgmix.uscg.mil/Equipment.

Approved

means approved by the “Commandant (G-M)”.

Area to be avoided

means a routing measure comprising an area within defined limits in which either navigation is particularly hazardous or it is exceptionally important to avoid casualties and which should be avoided by all ships or certain classes of ships. An area to be avoided may be either mandatory, where navigation is prohibited or subject to conditions imposed by competent authority, or recommendatory, in which ships should navigate with caution in light of the specially hazardous conditions presented. In either case, the nature of the area (whether mandatory or recommendatory) will be identified to mariners.

Barrel

means 42 U.S. gallons (159 liters) at atmospheric pressure and 60° Fahrenheit (15.56° Celsius).

Captain of the Port

COTP

means a Coast Guard officer who commands a Captain of the Port zone described in part 3 of this chapter and who is immediately responsible for enforcing port safety and security and marine environmental protection regulations within that area.

Certified Industrial Hygienist

means an industrial hygienist who is certified by the American Board of Industrial Hygiene.

Certified Marine Chemist

means a marine chemist who is certified by the National Fire Protection Association.

Citizen of the United States means:

(1) Any person who is a United States citizen by law, birth, or naturalization;

(2) Any state, any agency of a State or a group of States; or

(3) Any corporation, partnership, or other association:

(i) That is organized under the laws of any State;

(ii) Whose president, and chairman of the board of directors, and general partners or their equivalents, are persons described in paragraph (1) of this definition; and

(iii) That has no more of its directors who are not persons described in paragraph (1) of this definition than constitute a minority of the number required for a quorum to conduct the business of the board of directors.

Coastal environment

means the coastal waters (including the lands in and under those waters), internal waters, and the adjacent shorelines (including waters in and under those shorelines). The term includes, but is not limited to, transitional and intertidal areas, bays, lagoons, salt marshes, estuaries, and beaches; fish, wildlife, and other living resources of those waters and lands; and the recreational and scenic values of those lands, waters, and resources.

Coastal State

means a State of the United States in or bordering on the Atlantic, Pacific, or Arctic Oceans or the Gulf of Mexico.

Commandant (G-M)

means the Assistant Commandant for Marine Safety, Security and Environmental Protection, or that individual's authorized representative, at Commandant (G-M), U.S. Coast Guard, 2100 Second Street SW., Washington, DC 20593-0001.

Confined space

means a space that may contain a dangerous atmosphere, including a space that:

(1) Has poor natural ventilation, such as a space with limited openings (

e.g.

, cofferdam, double bottom tank); or

(2) Is not designed for continuous occupancy by personnel.

Construction

means the supervising, inspection, actual building and all other activities incidental to the building, repairing, or expanding of a “deepwater port” or any of its components. The term includes, but is not limited to, fabrication, laying of pipe, pile driving and bulk heading and alterations, modifications, or additions to the “deepwater port”.

Control

means the power, directly or indirectly, to determine the policy, business practices, or decision-making process of another “person”, whether by stock or other ownership interest, by representation on a board of directors or similar body, by contract or other agreement with stockholders or others, or by other means.

Crude oil

means a mixture of hydrocarbons that exist in the liquid phase in natural underground reservoirs and remains liquid at atmospheric pressure after passing through surface separating facilities and includes:

(1) Liquids technically defined as crude oil;

(2) Small amounts of hydrocarbons that exist in the gaseous phase in natural underground reservoirs but are liquid at atmospheric pressure after being recovered from oil well (casing head) gas in lease separators; and

(3) Small amounts of non-hydrocarbons produced with the oil.

Dangerous atmosphere

means an atmosphere that may expose personnel to the risk of death, incapacitation, injury, or acute illness or may impair ability to escape from the atmosphere unaided.

Deepwater port

means any fixed or floating manmade structures other than a vessel, or any group of structures, located beyond State seaward boundaries and that are used or intended for use as a port or terminal for the transportation, storage, or further handling of oil or natural gas for transportation to any State, except as otherwise provided in the Deepwater Port Act of 1974, as amended, and for other uses not inconsistent with the purposes of that Act, including transportation of oil or natural gas from the United States outer continental shelf. The term includes all components and equipment, including pipelines, pumping stations, service platforms, buoys, mooring lines, and similar facilities to the extent they are located seaward of the high water mark. In the case of natural gas, the term includes all components and equipment, including pipelines, pumping or compressor stations, service platforms, buoys, mooring lines, and similar facilities which are proposed and/or approved for construction and operation as part of the deepwater port, to the extent that they are located seaward of the high water mark and do not include interconnecting facilities. A deepwater port shall be considered a “new source” for purposes of the Clean Air Act, as amended (42 U.S.C. 7401

et seq.

), and the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251

et seq.

District Commander

means an officer who commands a Coast Guard District described in part 3 of this chapter or that individual's authorized representative.

Emergency medical technician (EMT)

means a person trained and certified to appraise and initiate the administration of emergency care for victims of trauma or acute illness before or during transportation of the victims to a health care facility via ambulance, aircraft or vessel.

Engineering hydrographic survey

means a detailed geological analysis of seabed soil samples performed to determine the physical composition (

e.g.

, mineral content, etc.) and structural integrity for the installation of offshore components and structures.

Governor

means the Governor of a “State” or the “person” designated by State law to exercise the powers granted to the Governor under the Act.

Gross under-keel clearance

means the distance between the keel of a tanker and the ocean bottom when the tanker is moored or anchored in calm water free of wind, current, or tide conditions that would cause the tanker to move.

Hose string

means the part of a “single point mooring oil or natural gas transfer connection” made out of flexible hose of the floating or float/sink type that connects the tanker's manifold to the “single point mooring”.

Hot work

means work that produces heat or fire, such as riveting, welding, burning, or other fire or spark producing operations.

Lease block

means an area established either by the Secretary of the Interior under section 5 of the Outer Continental Shelf Lands Act (43 U.S.C. 1334) or by a State under section 3 of the Submerged Lands Act (43 U.S.C. 1311).

License

means a license issued under this part to own, construct, and operate a deepwater port.

Licensee

means a citizen of the United States holding a valid license for the ownership, construction, and operation of a deepwater port that was issued, transferred, or renewed under this subchapter.

Marine environment

includes the “coastal environment,” waters of the contiguous zone, the exclusive economic zone, and the high seas; fish, wildlife, and other living resources of those waters; and the recreational and scenic values of those waters and resources.

Marine site

means the area in which the deepwater port is located, and includes the safety zone, attendant ships' routes, anchorages and all areas seaward of the high water mark in which associated components and equipment of the deepwater port are located.

Maritime Administration

(or

MARAD

) means the Administrator of the Maritime Administration or that person's designees.

Metering platform

means a manned or unmanned platform consisting of either a fixed or floating structure that serves as an interchange site for controlling the rate of transfer of natural gas from vessel to pipeline.

Natural gas

means either natural gas unmixed, or any mixture of natural or artificial gas, including compressed or liquefied natural gas.

Net under-keel clearance

means the distance between the keel of a tanker and the ocean bottom when the tanker is underway, anchored, or moored and subject to actual wind, waves, current, and tide motion.

No anchoring area

means a routing measure comprising an area within defined limits where anchoring is unsafe, unstable, or particularly hazardous or could result in unacceptable damage to the marine environment. Anchoring should be avoided by all ships or certain classes of ships in a no anchoring area.

Officer in Charge, Marine Inspection,

OCMI

means an individual who commands a Marine Inspection Zone described in part 3 of this chapter and who is immediately responsible for the performance of duties with respect to inspections, enforcement, and administration of regulations governing a deepwater port.

Offshore competent person

means an individual trained and designated by his or her employer in matters relating to confined-space pre-entry testing and certification at a deepwater port, prior to entry. An offshore competent person should demonstrate proficiency in the following criteria—

(1) Hazard description and recognition;

(2) Hazard evaluation and measurement;

(3) Hazard prevention;

(4) Control and elimination; and

(5) Practical application simulation.

Oil

means petroleum, crude oil, and any substance refined from petroleum or crude oil.

Operator

means the person who is licensed under 33 U.S.C. 1503 to own, construct, and operate a deepwater port, or that person's designee.

Person

means an individual, a public or private corporation, a partnership or other association, or a government entity.

Personnel

means individuals who are employed by licensees, operators, contractors, or subcontractors and who are on a deepwater port by reason of their employment.

Pipeline end manifold

means the pipeline end manifold at a “single point mooring.”

Platform

means a fixed structure that rests on or is embedded in the seabed and that has floors or decks where an activity or specific function may be carried out.

Pumping platform complex

means a “platform” or a series of interconnected “platforms”, exclusive of a deepwater port, consisting of one or more single point moorings (SPM) or submerged turret loading buoys (STL) that can pump oil or natural gas and that has one or more of the following features or capabilities:

(1) Can handle the mooring and loading of small “vessels”;

(2) Has berthing and messing facilities; and

(3) Has a landing area for helicopters.

Reconnaissance hydrographic survey

means a scientific study of fresh and salt-water bodies, currents and water content, cultural resources and seabed soils. A visual representation of the survey findings is normally depicted on a chart of the examined area.

Routing measures

means any system of one or more vessel routes or routing schemes aimed at reducing the risk of casualties. It includes traffic separation schemes, two-way routes, recommended tracks, areas to be avoided, inshore traffic zones, roundabouts, and deepwater routes.

Safety zone

means the safety zone established around a deepwater port under part 150, subpart J, of this chapter.

Single point mooring (SPM)

means an offshore berth that links an undersea pipeline to a tanker moored to the mooring and allows for the transfer of oil or natural gas between the tanker and the pipeline.

Single point mooring-oil transfer system (SPM-OTS) or single point mooring-natural gas transfer system (SPM-NGTS)

means the part of the oil or natural gas transfer system from the “pipeline end manifold” to the end of the “hose string” that connects to the tanker's manifold.

State

includes each of the States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and the territories and possessions of the United States.

Support vessel

means a vessel working for a licensee at a deepwater port or cleared by a licensee to service a tanker calling at a deepwater port, and includes a:

(1) Tug;

(2) Line-handling boat;

(3) Crew boat;

(4) Supply vessel;

(5) Bunkering vessel;

(6) Barge; or

(7) Other similar vessel.

Survival craft

means a craft capable of sustaining the lives of persons in distress after abandoning a deepwater port. The term includes lifeboats, life rafts, buoyant apparatus, and survival capsules. The term does not include rescue boats, unless the rescue boats are also “approved” as lifeboats.

Tanker

means a vessel that calls at a “deepwater port” to unload oil or natural gas.

Vessel

means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on or through the water.

Subpart B—Application for a License

§ 148.100

What is the purpose of this subpart?

This subpart describes how to apply for a license to own, construct, and operate a deepwater port.

§ 148.105

What must I include in my application?

Your application must include the information required by paragraphs (a) through (cc) of this section.

(a) For each applicant, affiliate, and consultant:

(1) The name, address, telephone number, citizenship, and principal business activity of the applicant and its affiliates;

(2) The name, address, and principal business activity of each subsidiary or division of the applicant or its affiliates that participated in the decision to apply for a license to build a deepwater port;

(3) A description of how each affiliate is associated with the applicant and of the ownership interest each affiliate has in the applicant;

(4) A list of corporate officers and directors of the applicant and each affiliate that participated in the decision to apply for a license to build a deepwater port;

(5) A statement on the applicant's and each affiliate's history for the last 5 years, including:

(i) Any bankruptcy filing, their dates, and statuses in the event the activity results in reorganization;

(ii) Any violations of State or Federal laws; and

(iii) Outstanding litigation that relates to, or could materially affect, information in the license application; and

(6) A declaration regarding lobbying activities on behalf of either the applicant or an affiliate under 31 U.S.C. 1352.

(b)

Experience in matters relating to deepwater ports.

(1) A description of the experience of the applicant, its affiliates, and its consultants in offshore operations, particularly operations involving the transfer and storage of liquid cargo and the loading and unloading of vessels.

(2) For each affiliate with which the applicant has made a significant contract for the construction of any part of the deepwater port, a description of that affiliate's experience in construction of marine terminal facilities, offshore structures, underwater pipelines, and seabed foundations and a description of other experiences that would bear on the affiliate's qualification to participate in the construction of a deepwater port.

(c)

The identity of each engineering firm, if known, that will design the deepwater port or a portion of the port.

The firm's:

(1) Name;

(2) Address;

(3) Citizenship;

(4) Telephone number; and

(5) Qualifications.

(d)

United States citizenship.

(1) As used in this paragraph (d) the terms “president,” “chairman,” “directors,” and “board of directors” (or “board”) refer to those officers and boards or their equivalents by whatever means they may be known. References to “charters,” “certificates,” or other documents refer to legally sufficient documents by those names or their equivalents.

(2) If the applicant is an individual citizen of the United States by law, birth, or naturalization, or a group of such individuals, submit an affidavit of U.S. citizenship from each individual.

(3) If the applicant is a State agency of a State, or a group of states, submit the law or laws authorizing the applicant to undertake the operations detailed in the application.

(4) If the applicant is a private corporation, submit its current charter or certificate of incorporation; its current by-laws; and affidavits of citizenship (U.S. or foreign) from its president, chairman of the board of directors and each director.

(5) If the applicant is a partnership or association not formed or owned solely by individual citizens of the United States, submit its certificate of formation; its partnership agreement or articles of association; its current by-laws; the minutes of its first board meeting; and affidavits of citizenship (U.S. or foreign) from the president and each director.

(e)

Address for service of documents.

The name and address of one individual who may be served with documents in case a formal hearing is held concerning the application, and the name and address of one individual who may receive other documents.

(f)

Location and use.

The proposed location and capacity of the deepwater port and a general description of the anticipated use of the port.

(g)

Financial information.

(1) For the applicant and each affiliate with an ownership interest in the applicant of greater than 3 percent, and affiliates which have a direct contractual relationship with the deepwater port:

(i) Annual financial statements, audited by an independent certified public accountant, for the previous 3 years, including, but not limited to, an income statement, balance sheet, and cash flow statement with footnote disclosures prepared according to U.S. Generally Accepted Accounting Principles; provided, however, that the Commandant (G-M), in coordination with MARAD, may waive this requirement upon finding that the affiliate does not in the normal course of business produce audited statements and is part of a larger corporate group whose audited statement provides sufficient information to support an adequate assessment of the affiliate's relationship with and impact on the applicant; and

(ii) Interim income statements and balance sheets for each quarter that ends at least 30 days before submission of the application, unless it is included in the most recent annual financial statement.

(2) An estimate of construction costs, including:

(i) A phase-by-phase breakdown of costs;

(ii) The estimated completion dates for each phase; and

(iii) A detailed estimate of the cost of removing all of the marine components of the deepwater port, other than pipelines that lie beneath the seabed, when operations at the port cease.

(3) Annualized projections or estimates of each of the following, along with the underlying assumptions, for the next 5 years and at reasonable intervals throughout the life of the deepwater port:

(i) Total oil or natural gas throughput and subtotals showing throughput owned by the applicant and its affiliates and throughput owned by others;

(ii) Projected financial statements, including a balance sheet and income statement; and

(iii) Annual operating expenses, showing separately any payment made to an affiliate for any management duties carried out in connection with the operation of the deepwater port.

(4) A copy of all proposals or agreements concerning the management and financing of the deepwater port, including agreements relating to throughputs, capital contributions, loans, guarantees, commitments, charters, and leases.

(5) The throughput reports for the calendar year preceding the date of the

application for the applicant and each of the applicant's affiliates engaged in producing, refining, or marketing oil or natural gas, along with a copy of each existing or proposed throughput agreement. Each throughput report must list the throughput of the following products:

(i) Crude oil. If crude oil is the only product the port is designed to transport, the throughput report may be limited to reporting crude oil;

(ii) Gasoline;

(iii) Jet aviation fuel;

(iv) Distillate fuel oils;

(v) Other refinery products; and

(vi) Natural gas.

(h)

Construction contracts and construction-related studies.

(1) A copy of each contract that the applicant made for the construction of any component of the deepwater port or for the operation of the port.

(2) A listing and abstract of:

(i) All completed or ongoing studies on deepwater ports conducted by or for the applicant; and

(ii) All other construction-related studies used by the applicant.

(3) The identity of each contractor, if known, that will construct or install the deepwater port or a portion of the port, including each firm's:

(i) Name;

(ii) Address;

(iii) Citizenship;

(iv) Telephone number; and

(v) Qualifications.

(i)

Compliance with Federal water pollution requirements.

(1) Evidence, to the extent available, that the requirements of section 401(a)(1) of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1341(a)(1), will be satisfied. If complete information is not available by the time MARAD must either approve or deny the application under 33 U.S.C. 1504(i)(1), the license for the deepwater port is conditioned upon the applicant demonstrating that the requirements of section 401(a)(1) of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1341(a)(1), will be satisfied.

(2) In those cases where certification under 33 U.S.C. 1341(a)(1) must be obtained from the Administrator of the Environmental Protection Agency, the request for certification, and pertinent information (

e.g.

, plume modeling) related to the certification.

(j)

Coastal zone management.

A request for each certification required by section 307 of the Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1456).

(k)

Identification of lease block.

(1) Identification of each lease block where any part of the proposed deepwater port or its approaches is located. This identification must be made on Official Outer Continental Shelf Leasing Maps or Protraction diagrams, where they are available. For each lease block, provide the following:

(i) A description of each pipeline, or other right-of-way crossing, in enough detail to allow plotting of the rights-of-way to the nearest one-tenth of a second in latitude and longitude; and

(ii) The identity of the lessee of each pipeline or other right-of-way.

(2) Detailed information concerning any interest that anyone, including the applicant, has in each block.

(3) Detailed information con

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