# Deepwater Ports > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A03-32204 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** January 6, 2004 - **Citation:** 69 FR 724 ## Text 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— 148.1 148.1 148.1 148.2 148.2 149.105, 150.103 148.3 148.3 148.5 148.5 148.3, 150.204, 150.303, 150.403 148.100 148.100 148.101 148.105 148.105 148.109 148.107 148.107 148.109(z) 148.108 148.108 148.109(z)(5) 148.110 148.110 148.105 148.115 148.115 148.103, 148.107(a), (b) 148.125 148.125 148.107(c) through (e) 148.200 148.200 148.201 148.205 148.205 148.205 148.207 148.207 148.207 148.209 148.209 148.211 148.211 148.211 148.213 148.213 148.213 148.215 148.215 148.215 148.216 148.217 148.217 148.217 148.221 148.221 148.219 148.222 148.222(a) and (b) 148.231 148.227 148.227 148.235 148.228 148.228 148.251 148.230 148.230 148.253, .283 148.232 148.232 148.203(b), .287, .291 148.234 148.234 148.255 148.236 148.236 148.257 148.238 148.238 148.261 148.240 148.240 148.263 148.242 148.242 148.265 148.244 148.244 148.267 148.246 148.246 148.273(a) and (c) 148.248 148.248 148.273(b) 148.250 148.250 148.275 148.252 148.252 148.281 148.254 148.254 148.285 148.256 148.256 148.276 148.276 148.321(b) 148.277 148.277 148.321(a) 148.279 148.279 148.323 148.281 148.281 148.325 148.283 148.283 148.327 148.300 148.300 148.400 148.305 148.305 148.403 148.307 148.307 148.407(a) 148.310 148.310 148.405 148.315 148.315 148.320 148.320 148.400 148.400 148.501 148.405 148.405 148.503 148.410 148.410 148.505 148.415 148.415 148.507 148.420 148.420 148.509 148.500 148.500 148.601 148.505 148.505 148.603 148.510 148.510 148.605 148.515 148.515 148.607 148.600 148.610 148.605 148.605 148.703 148.700, .702, .705, .707, .708, .709, .710, .715, .720, .722, .725, .730, .735, .737 148 Appendix A 148 Appendix A 149.1 149.1 149.101 149.5 149.5 149.10 149.10 149.100 149.100 149.301 149.103 149.103 149.319 149.105 149.105 149.303 149.110 149.110 149.305 149.115 149.115 149.307 149.120 149.120 149.309 149.125 149.125 149.311 149.130 149.130 149.313 149.135 149.135 149.315 149.140 149.140 149.317 149.145 149.145 149.403 149.150 149.150 149.321 149.300 149.300 149.301 through 149.339 149.305 [which references Sub N** NPRM sections 143.810 through 143.885, and 143.910 through 143.925] 149.340 149.310 149.402 149.400 149.400 149.401 149.405 149.402 143.1010 [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 149.500 149.500 149.701 149.505 149.505 149.705 149.510 149.510 149.707 149.520 149.520 149.535 149.535 149.797 149.540 149.540 149.751 149.550 149.550 149.753 149.560 149.560 149.771 and 149.772 149.565 149.565 149.773 149.570 149.570 149.791 149.575 149.575 149.793 149.580 149.580 149.795 149.585 149.585 149.799 149.600 149.600 149.201 149.610 149.610 150.117 149.615 149.615 149.203 (a) and (b) 149.620 149.620 149.203 (c) and (d) 149.625 149.625 149.205 149.630 149.630 149.640 149.640 149.206 149.641 143.1115 [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] 149.650 149.650 149.209 and 150.121 149.655 149.655 149.213 149.660 149.660 149.411 149.665 149.665 149.541 149.670 149.670 149.543 149.675 149.675 149.545 149.680 149.680 149.217 and 150.527 149.685 149.685 149.690 149.690 149.421, .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] 149.700 149.695 149.539 150.1 150.1 150.101 150.5 150.5 150.10 (a)-(d) 150.10 (a)-(b) 150.105 (a)-(b) 150.10 (e) 150.10 (c) 150.109 150.15 150.15 150.105 150.20 150.20 150.106 150.25 150.25 150.107 (a)-(c) 150.30 150.30 150.107 (a)-(c) 150.35 150.35 150.107 (d) 150.40 150.40 150.113 150.45 150.45 150.115 150.50 150.50 150.129 150.100 150.100 150.105 New [see Note 1] 150.110 New 150.200 150.205 150.205 150.210 150.203 150.210 150.215 150.217 150.225 150.250 150.300 150.300 150.301 150.305 150.305 150.310 150.310 150.307 150.320 150.320 150.309 (a) and (b) 150.325 150.325 150.333 150.330 150.330 150.335 150.340 150.340 150.337 150.345 150.345 150.315 150.350 150.350 150.338 150.355 150.355 150.317, 150.339 150.380 150.380 150.345 150.385 150.385 150.400 150.400 150.400 150.405 150.405 150.405 150.420 150.420 150.411 150.425 150.425 150.413 150.430 150.435 150.417 150.435 150.440 150.423 150.440 150.445 150.425 150.445 150.447 150.421 150.500 150.500 150.500 150.501 150.505 150.503 150.502 143.615 [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] 150.509 150.510 150.510 143.710 [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 150.600 150.600 150.509 150.601 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] 150.700 150.700 150.601 150.705 150.705 150.603 150.710 150.710 150.605 150.715 150.715 150.607 150.720 150.720 150.611 150.800 150.800 150.701 150.805 150.805 150.703 150.810 150.810 150.705 150.815 150.815 150.711 150.820 150.820 150.711 150.825 150.825 150.830 150.830 150.835 150.835 150.713 150.840 150.840 150.751 150.845 150.845 150.753 150.850 150.850 150.759 150.900 150.900 150 Appendix A 150.905 150.905 150 Appendix A 150.910 150.910 150 Appendix A 150.915 150.915 150 Appendix A 150.920 150.920 147.30 150.925 150.925 147.35 150.930 150.930 147.105 *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— 148.1 148.1 148.1 148.3 148.5 148.5 148.101 148.100 148.100 148.103 148.115 148.115 148.105 148.110 148.110 148.107(a) and (b) 148.115 148.115 148.107(c), (d), and (e) 148.125 148.125 148.109 148.105 148.105 148.109(z) 148.107 148.107 148.109(z) 148.108 148.108 148.111 148.201 148.200 148.200 148.203(b) 148.232 148.232 148.205 148.205 148.205 148.207 148.207 148.207 148.211 148.209 148.209 148.213 148.211 148.211 148.215 148.213 148.213 148.216 148.215 148.215 148.217 148.217 148.217 148.219 148.221 148.221 148.231 148.222(a) and (b) 148.222(a) and (b) 148.233 148.222(c) 148.222(c) 148.235 148.227 148.227 148.251 148.228 148.228 148.253 148.230 148.230 148.255 148.234 148.234 148.257 148.236 148.236 148.259 148.232(a) 148.232(a) 148.261 148.238 148.238 148.263 148.240 148.240 148.265 148.242 148.242 148.267 148.244 148.244 148.269 148.232(a) 148.232(a) 148.271 148.232(a) 148.232(a) 148.273(a) and (c) 148.246 148.246 148.273(b) 148.248 148.248 148.275 148.250 148.250 148.277 148.232(a) 148.232(a) 148.279 148.232(a) 148.232(a) 148.281 148.252 148.252 148.283 148.230 148.230 148.285 148.254 148.254 148.287 148.232 148.232 148.289 148.232, .242 148.232, .242 148.291 148.232(a) 148.232 148.321(a) 148.277 148.277 148.321(b) 148.276 148.276 148.323 148.279 148.279 148.325 148.281 148.281 148.327 148.283 148.283 148.400 148.300 148.300 148.403 148.305 148.305, 148.307 148.405 148.310 148.310 148.407 148.277, .307 148.277, .307 148.501 148.400 148.400 148.503 148.405 148.405 148.505 148.410 148.410 148.507 148.415 148.415 148.509 148.420 148.420 148.601 148.500 148.500 148.603 148.505 148.505 148.605 148.510 148.510 148.607 148.515 148.515 148.701 148.600 148.600 148.703 148.605 148.605 148 Appendix A 148 Appendix A 148.700, .702, .705, .707, .708, .709, .710, .715, .720, .722, .725, .730, .735, .737 148 Annex A 148 Annex A 148.730, .735, .737 149.101 149.1 149.1 149.105 148.2 149.5 149.201 149.600 149.600 149.203(a) through (c) 149.615 149.615 149.203(d) 149.620 149.620 149.205 149.625 149.625 149.206 149.640 149.640 149.209 149.650 149.650 149.211 149.213 149.655 149.655 149.215 149.217 149.680 149.680 149.301 149.100 149.100 149.303 149.105 149.105 149.305 149.110 149.110 149.307 149.115 149.115 149.309 149.120 149.120 149.311 149.125 149.125 149.313 149.130 149.130 149.315 149.135 149.135 149.317 149.140 149.140 149.319 149.103 149.103 149.321 149.150 149.150 149.401 150.15 150.15 149.402 149.310 and 149.430 150.501 149.403 149.145 149.145 149.411 149.660 149.660 149.421 149.690 149.690 149.423 149.690 149.690 149.431 149.690 149.690 149.433 149.690 149.690 149.441 149.690 149.690 149.451 149.410 149.415 149.453 149.415(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 .333 149.539 149.695 149.700 149.541 149.665 149.665 149.543 149.670 149.670 149.545 149.675 149.675 149.701 149.500 149.500 149.703 149.521 149.535 149.705 149.505 149.520 149.707 149.510 149.510 149.721 150.715 150.715 149.723 149.527 149.724 149.520 149.520 149.725 149.727 149.525 149.520 149.729 149.751 149.540 149.540 149.753 149.550 149.550 149.755(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) 149.550 149.759 149.533 149.771 149.773 149.560 149.560 149.775 149.565 149.565 149.791 149.570 149.570 149.793 149.575 149.575 149.795 149.580 149.580 149.797 149.535 149.535 149.799 149.585 149.585 150.101 150.1 150.1 150.103 148.2 148.2 150.105 150.10 150.10 150.106 150.20 150.20 150.107(a)-(c) 150.25 150.25 150.107(d) 150.35 150.35 150.109 150.10 150.10(e) 150.113 150.40 150.40 150.115 150.45 150.45 150.117 150.119 150.110 150.121 150.123 150.125 150.127 150.15 150.15 150.129 150.50 150.50 150.201 150.200 150.203 150.210 150.205 150.204 148.5 148.5 150.205 150.220 150.207 150.225 150.209 150.230 150.211 150.235 150.213 150.240 150.215 150.245 150.217 150.215 150.210 150.301 150.300 150.300 150.303 148.5 148.5 150.305 150.15 150.15 150.307 150.310 150.310 150.309 (a) and (b) 150.320 150.320 150.309 (c) 150.365 150.320 150.311 150.15 150.313 150.340 150.315 150.345 150.345 150.317 150.355 150.355 150.333 150.325 150.325 150.335 150.330 150.330 150.337 150.340 150.340 150.338 150.350 150.350 150.339 150.355 150.355 150.341 150.370 150.342 150.375 150.345 150.380 150.380 150.400 150.400 150.400 150.403 148.5 148.5 150.405 150.405 150.405 150.407 150.409 150.411 150.420 150.420 150.413 150.425 150.425 150.415 150.430 150.417 150.435 150.430 150.419 150.421 150.447 150.445 150.423 150.440 150.435 150.425 150.445 150.440 150.500 150.500 150.500 150.503 150.505 150.501 150.504 150.515 150.530 150.505 150.520 150.531 150.507 150.525 150.532 150.509 150.600 150.540 150.511 150.600 150.550 150.513 150.515 150.530 150.540 150.516 150.600 150.517 150.535 150.550 150.519 150.521 150.523 150.525 150.600 150.600 150.527 149.680 149.680 150.601 150.700 150.700 150.603 150.705 150.705 150.605 150.710 150.710 150.607 150.715 150.715 150.611 150.720 150.720 150.701 150.800 150.800 150.703 150.805 150.805 150.705 150.810 150.810 150.707 150.711 150.815, .820 150.815, .820 150.713 150.835 150.835 150.751 150.840 150.840 150.753 150.845 150.845 150.755 150.757 150.759 150.850 150.850 150 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— 148.1 148.1 148.2 148.2 148.3 148.3 148.5 148.5 148.10 148.100 148.100 148.105 148.105 148.107 148.107 148.108 148.108 148.110 148.110 148.115 148.115 148.125 148.125 148.200 148.200 148.203 148.205 148.205 148.207 148.207 148.209 148.209 148.211 148.211 148.213 148.213 148.215 148.215 148.217 148.217 148.221 148.221 148.222 148.222 148.227 148.227 148.228 148.228 148.230 148.230 148.232 148.232 148.234 148.234 148.236 148.236 148.238 148.238 148.240 148.240 148.242 148.242 148.244 148.244 148.246 148.246 148.248 148.248 148.250 148.250 148.252 148.252 148.254 148.254 148.256 148.256 148.276 148.276 148.277 148.277 148.279 148.279 148.281 148.281 148.283 148.283 148.300 148.300 148.305 148.305 148.307 148.307 148.310 148.310 148.315 148.315 148.320 148.320 148.400 148.400 148.405 148.405 148.410 148.410 148.415 148.415 148.420 148.420 148.500 148.500 148.505 148.505 148.510 148.510 148.515 148.515 148.600 148.600 148.605 148.605 148.610 148 Appendix A 148.700, .702, .705, .707, .708, .709, .710, .715, .720, .722, .725, .730, .735, .737 148 Annex A 148.730, .735, .737 149.1 149.1 149.5 149.5 149.10 149.10 149.100 149.100 149.105 149.105 149.110 149.110 149.115 149.115 149.120 149.120 149.125 149.125 149.130 149.130 149.135 149.135 149.140 149.140 149.145 149.145 149.150 149.150 149.300 149.300 149.305 149.301 through 149.339 149.310 149.400 149.400 149.405 149.401 149.410 149.415 149.415 149.416 149.420 149.417 149.425 149.418 150.430 149.500 150.500 149.505 149.505 149.510 149.510 149.520 149.520 149.521 149.523 149.525 149.527 149.530 149.531 149.533 149.535 149.535 149.540 149.540 149.545 149.550 149.550 149.555 149.560 149.560 149.565 149.565 149.570 149.570 149.575 149.575 149.580 149.580 149.535 149.535 149.585 149.585 149.600 149.600 149.610 149.610 149.615 149.615 149.620 149.620 149.625 149.625 149.630 149.630 149.640 149.640 149.650 149.650 149.655 149.655 149.660 149.660 149.665 149.665 149.670 149.670 149.675 149.675 149.680 149.680 149.685 149.685 149.690 149.690 149.695 149.700 150.1 150.1 150.5 150.5 150.10 150.10 150.15 150.15 150.20 150.20 150.25 150.25 150.30 150.30 150.35 150.35 150.40 150.40 150.45 150.45 150.50 150.50 150.100 150.100 150.200 150.205 150.200 150.210 150.205 150.215 150.210 150.220 150.225 150.230 150.235 150.240 150.245 150.250 150.250 150.300 150.300 150.310 150.310 150.320 150.320 150.325 150.325 150.330 150.330 150.340 150.340 150.345 150.345 150.350 150.350 150.355 150.355 150.365 150.320 150.370 150.375 150.380 150.380 150.400 150.400 150.405 150.405 150.420 150.420 150.425 150.425 150.430 150.435 150.430 150.440 150.435 150.445 150.440 150.447 150.445 150.500 150.500 150.505 150.501 150.510 150.509 150.515 150.530 150.520 150.531 150.525 150.532 150.530 150.540 150.535 150.550 150.600 150.601 150.700 150.700 150.705 150.705 150.710 150.710 150.715 150.715 150.720 150.720 150.800 150.800 150.805 150.805 150.810 150.810 150.815 150.815 150.820 150.820 150.825 150.825 150.830 150.830 150.835 150.835 150.840 150.840 150.845 150.845 150.850 150.850 150.900 150.900 150.905 150.905 150.910 150.910 150.915 150.915 150.920 150.920 150.925 150.925 150.930 150.930 150.935 *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. ). 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. § 149.402. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A03-32204. Public record. Not legal advice.