Deepwater Ports

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 148, 149, and 150

[USCG 1998-3884]

1625-AA20 (Formerly RIN 2115-AF63)

Deepwater Ports

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

This final rule supersedes the temporary interim rule that was published on January 6, 2004. The temporary interim rule revised 1975 regulations that implemented the Deepwater Port Act of 1974. It updated and streamlined those regulations in accordance with the 1996 Deepwater Port Modernization Act, and extended them to include the natural gas deepwater ports authorized by Congress in the Maritime Transportation Security Act of 2002. This final rule revises and finalizes the regulations issued in the temporary interim rule.

DATES:

This rule is effective September 29, 2006.

ADDRESSES:

Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-1998-3884 and are available for inspection or copying at the Docket Management Facility, U.S. Department of Transportation, room PL-401, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at

http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call Kevin Tone, Deepwater Port Standards Division (G-PSO-5), U.S. Coast Guard, telephone 202-372-1441. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-493-0402.

SUPPLEMENTARY INFORMATION:

Table of Contents

Abbreviations and Acronyms

Regulatory History

Background and Purpose

Discussion of Comments and Changes

Regulatory Evaluation

Small Entities

Collection of Information

Federalism

Unfunded Mandates Reform Act

Taking of Private Property

Civil Justice Reform

Protection of Children

Indian Tribal Governments

Energy Effects

Technical Standards

Environment

List of Subjects

Abbreviations and Acronyms

ALJ  Law Judge

ATBA Area to be Avoided

COTP Captain of the Port

CTS Cargo Transfer System

CE Certifying Entity

DPA Deepwater Port Act

DPMA Deepwater Port Modernization Act

EPIRB Emergency Position Indicating Radio Beacon

EPA Environmental Protection Agency

GGDWP Gulf Gateway Deepwater Port

IMO International Maritime Organization

LNG Liquefied Natural Gas

LNGRV Liquefied Natural Gas Regasification Vessel

LOOP Louisiana Offshore Oil Port

MARAD Maritime Administration

MTSA Maritime Transportation Security Act

MSDS Material Safety Data Sheet

MOA Memorandum of Agreement

MMS Minerals Management Service

NEPA National Environmental Policy Act

NOAA National Oceanic and Atmospheric Administration

NPDES National Pollutant Discharge Elimination System

NGTS Natural Gas Transfer System

NVIC Navigation and Vessel Inspection Circular

NAA No Anchoring Area

NAD 83 North American Datum of 1983

OCMI Officer in Charge of Marine Inspection

OTS Oil Transfer System

OCS Outer Continental Shelf

PIC Person in Charge (of Transfer)

PFD  Personal Flotation Device

ROD Record of Decision

SEMP Safety and Environmental Management Program

SART Search and Rescue Transponder

SPM Single Point Mooring

STL Submerged Turret Loading (Buoy)

TIR Temporary Interim Rule

Regulatory History

This rulemaking began with publication of an advance notice of proposed rulemaking (ANPRM, 62 FR 45774, Aug. 29, 1997). The ANPRM was followed by a notice of proposed rulemaking (NPRM, 67 FR 37920, May 30, 2002). Both the ANPRM and NPRM confined their discussions to regulations for deepwater oil ports. In 2002, Congress authorized the issuance of a temporary interim rule (TIR) without prior public notice and comment, in order to extend deepwater port regulations to natural gas facilities. Our TIR (69 FR 724, Jan. 6, 2004) expires October 1, 2006, or upon replacement by a final rule, whichever comes first. We provided a 90-day public comment period following issuance of the TIR. Eight comments were received. No public meeting was requested and none was held. Two corrections were published to the TIR; the first on January 27, 2004 (69 FR 3836) and the second on August 30, 2004 (69 FR 52830).

Background and Purpose

Under existing statutes and interdepartmental agreements, the Coast Guard maintains regulations for the licensing, construction, and operation of deepwater ports. As defined in the Deepwater Port Act of 1974 (DPA), a deepwater port is a fixed or floating manmade structure other than a vessel, or a group of structures, located beyond State seaward boundaries and used or intended for use as a port or terminal for the transportation, storage, and further handling of oil or natural gas for transportation to any State. The Maritime Administration (MARAD) is responsible for issuing, revoking, and reinstating deepwater port licenses, but much of the processing required for each license application is conducted by the Coast Guard, with the cooperation of MARAD and several other Federal agencies.

The Coast Guard issued its first deepwater port regulations in 1975. Under the 1974 Deepwater Ports Act (DPA) scheme, deepwater ports could handle oil, but not natural gas. Only one deepwater oil port was built in the next three decades. To encourage greater use of deepwater ports, Congress passed a Deepwater Port Modernization Act (DPMA) in 1996. The DPMA sought to ensure fair treatment for deepwater ports by eliminating unnecessary regulation and promoting innovation, flexibility, and efficiency. We began this rulemaking in 1997 in order to implement the DPMA. We issued an NPRM in 2002. Among other proposals, the NPRM incorporated references to a 1999 NPRM for a related rulemaking (USCG-1998-3868, RIN 1625-AA18, formerly RIN 2115-AA18), dealing with Outer Continental Shelf (OCS) facilities.

Several months after we issued our NPRM, the Maritime Transportation Security Act (MTSA) of 2002 amended the DPA. After that, deepwater ports were authorized to transport natural gas as well as oil. The MTSA mandated the rapid promulgation of implementing regulations. Accordingly, we issued a temporary interim rule (TIR) in January 2004. The TIR updated the 1975 regulations in light of the 1999 OCS and 2002 deepwater port NPRMs, and public comments received on both those proposals, and also adapted the 1975 regulations to accommodate both natural gas and oil deepwater ports. To facilitate development of natural gas

facilities, which employ a variety of designs, the TIR eliminated references to many specific industry standards in favor of imposing performance-based requirements. In issuing the TIR, we opened a new round of public comment.

On May 16, 2005, the Coast Guard issued Navigation and Vessel Inspection Circular No. 03-05 (NVIC 03-05; see notice of availability, 70 FR 33351, June 8, 2005). NVIC 03-05 provides nonbinding guidance to deepwater port license applicants and operators, to the Coast Guard, and to “certifying entities” that perform certification work on behalf of the Coast Guard. This guidance relates to the design, plan review, fabrication, installation, maintenance, and oversight of deepwater ports. NVIC 03-05 can be found in docket USCG-1998-3884 (see

ADDRESSES

).

Under the 2004 regulations, the Coast Guard has processed roughly a dozen applications for liquefied natural gas (LNG) deepwater ports, an impressive increase in interest compared to the three oil deepwater port applications processed, and two licensed, in the previous 30 years. Three applicants have been issued licenses by MARAD, and one LNG deepwater port is now operational. Each application involves several volumes of data and requires Federal agency processing, including the holding of public hearings and the preparation of an environmental impact statement. Under the strict timeline mandated by the DPA, all of that processing must be completed in about 11 months. Following the issuance of a license, additional Federal agency review is needed to make sure that the facility is developed, operated, and eventually decommissioned in accordance with its license and with applicable law, and that any necessary modifications receive proper approval. As a result, the Coast Guard and its Federal agency partners have acquired extensive practical experience with the workability of the 2004 regulations. Many of the changes in this final rule reflect that practical experience.

This final rule takes effect on publication, which is less than the thirty days ordinarily required by the Administrative Procedure Act. It has not been possible to complete the final rule earlier. Since the temporary interim rule expires on October 1, 2006, adhering to the thirty day rule would cause a temporary lapse in a regulatory scheme that will remain substantially unchanged since the temporary interim rule was adopted. This would jeopardize the Coast Guard's ability to process deepwater port license applications, which would be contrary to the public interest expressed through the DPA, DPMA, and MTSA. Therefore, the Coast Guard finds it impracticable, unnecessary, and contrary to the public interest to delay the effective date of this final rule, and finds good cause under the Administrative Procedure Act for the final rule to take effect upon publication.

Discussion of Comments and Changes

In the following pages, we discuss the public comments received on our 2004 TIR as well as other significant changes we are making to the regulatory text in this final rule. 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 comprise the deepwater port regulations.

Some of the changes are made to align the requirements for plan submissions and specifications in 33 CFR part 149 with NVIC 03-05, to ensure consistency in the plan approval process.

Some changes are made in response to comments from the Minerals Management Service (MMS), which is not a public commenter but one of the Coast Guard's Federal agency partners in processing deepwater port applications. Because MMS comments appear in the public docket, we include them in this discussion as appropriate. Generally we have not explicitly incorporated MMS requirements, or those of any other Federal agency, in the final rule because we lack the authority to speak for them. However, we wish to emphasize that deepwater ports must comply with all applicable statutes and regulations, regardless of the agency responsible for their enforcement.

We thank all our commenters for their interest in this rulemaking.

Two commenters made recommendations on vessel routing measures in and around the Mississippi River, and on watchstanding conditions. While the suggestions may have merit, we did not incorporate them as they are outside the scope of this rulemaking.

§ 148.3:

One commenter asked us to describe the duties and responsibilities of every Federal agency involved with deepwater ports. We have retained the very general overview that this section provides, and added a link to the interagency memorandum that outlines the roles and responsibilities of agencies cooperating with MARAD and the Coast Guard.

§ 148.5: “Adjacent coastal State”:

We aligned this definition with the statutory definition from 33 U.S.C. 1502.

§ 148.5: “Affiliate”:

One commenter requested that we remove “indirect” affiliates from the definition, on the grounds that it results in the inclusion of every affiliate regardless of the statutory 3% threshold. We are retaining the reference to “direct or indirect” ownership interests because it is similar to language that has appeared in our regulations since 1975, and mirrors the language of 33 U.S.C. 1504, which incorporates “any ownership interest in the applicant of greater than 3 per centum” into 33 U.S.C. 1502's statutory definition of an “affiliate.”

§ 148.5: “Applicant”:

One commenter requested clarification of the word “person” in this definition. The word is defined later in this section and means an individual, a public or private corporation, a partnership or other association, or a government entity.

§ 148.5: “Approved”:

One commenter requested that we add “or the Administrator of MARAD” to our definition. Our regulations refer to MARAD when it is necessary to do so. In this case, we refer only to Coast Guard approvals.

§ 148.5: “Area to be avoided” or “ ATBA”:

At a commenter's suggestion, we are revising this definition to provide more information.

§ 148.5: “Certifying entity” or “CE”:

We have added this definition due to substantive changes elsewhere in the deepwater port regulations.

§ 148.5: “Deepwater port”:

We have declined one commenter's request to exclude structures or operations that, under certain circumstances, are also regulated by another Federal agency, because our definition closely follows statutory language in 33 U.S.C. 1502.

§ 148.5: “Marine site”:

We are revising this definition by deleting “ships’ routes and anchorages,” in order to avoid an undue burden to OCS lease holders and non-deepwater port marine traffic.

§ 148.5: “Maritime Administration” or “MARAD”:

We have revised this definition to refer specifically to the associate administrator currently responsible for deepwater port matters.

§ 148.5: “Metering platform”:

At a commenter's suggestion, we revised this definition to clarify that these platforms measure, but do not necessarily control, the rate of transfer.

§ 148.5: “Natural gas liquids”:

We are adding this definition in response to one commenter's suggestion.

§ 148.5: “Person in Charge (PIC)”:

Due to common usage, we added a definition for a person in charge (of transfer), abbreviated as PIC, to distinguish it from other persons in charge (for example, of vessel operations, of maintenance, etc.), that are not abbreviated by PIC.

§ 148.5:

“

Routing systems”:

At a commenter's suggestion, we are revising

this definition to provide more information and to align terminology with international standards.

§ 148.5:

“

Safety zone”:

At a commenter's suggestion, we are revising this definition to provide more information.

§ 148.5:

“

Survival craft”:

We have revised this definition to align it with § 149.303.

§ 148.8:

We added this section to describe how a certifying entity is designated and used to perform functions for which the Coast Guard is responsible.

Part 148, subpart B (§§ 148.100-148.125):

One commenter asked us to cross-reference another agency's requirements in this subpart. An amendment is not needed, because the other agency will consider its own requirements in evaluating an application, and any necessary conditions can be included in the license itself.

§ 148.105(a):

At a commenter's suggestion, we have revised paragraph (a)(5) to clarify the materiality standard. We also revised (a)(6) for clarity.

§ 148.105(d):

We revised this section for clarity. No substantive change is intended.

§ 148.105(f):

One commenter asked us to require applicants to state if the proposed deepwater port would have open or closed access. We have revised the section accordingly.

§ 148.105(g)(1):

One commenter asked us to clarify that this provision applies only to those affiliates that have a direct ownership interest of greater than 3 percent or that have a direct contractual relationship with the deepwater port. We have amended the section accordingly.

§ 148.105(g)(2)(iii):

One commenter requested that we add conditions or requirements for removing pipelines at decommissioning. We have revised the section to indicate that MARAD sets these conditions or requirements in the deepwater port license, and that only preliminary estimates need be included in the application.

§ 148.105(g)(5):

One commenter recommended that applicants be required to report throughput of natural gas liquids as well as of oil and gas. We have added this requirement.

§ 148.105(k):

At the suggestion of one commenter, we have revised this paragraph to require maps and diagrams to be certified by a professional surveyor.

§ 148.105(t), (v), and (w) (formerly (s), (u), and (v), respectively):

One commenter pointed out that, as worded, these paragraphs may not provide adequate technical detail to guide applicants who must meet MMS requirements. For reasons already noted, we are retaining the current language, but emphasize that all applicants must meet any applicable statutory or regulatory requirements regardless of which agency enforces them.

§ 148.105(m) and (n):

One commenter expressed concern that the 2-year limit for the use of existing data is unreasonable because older data has already been provided for some sites subject to leases granted by the MMS, and because nowhere else in the DPA is a 2-year limit requirement specified. We think raising the 2-year limit to 5 years reasonably addresses the commenter's concerns while ensuring that applications do not rely on obsolete data.

§ 148.105(m)(1)(i):

We substituted “i.e.” with “for example”, for clarity.

§ 148.105(m)(1)(ii):

One commenter recommended that we require applicants to specify distances from the deepwater port to OCS structures, and specify provisions for addressing casualties and emergency situations. Information regarding distances is required in the application, and the provisions for responses to emergencies are more appropriately addressed in the operations manual.

§ 148.105(p):

We redesignated the existing paragraph as paragraph (p)(2), with minor revisions, and added new paragraph (p)(1), relating to information about the nationality of natural gas vessels servicing deepwater ports, to conform to section 304 of the 2006 Coast Guard authorization act.

§ 148.105(r):

One commenter recommended that we add the word “dedicated” to fixed offshore components, to distinguish them from shared components. An example of this is a converted OCS platform with continuing OCS operations, co-located with a deepwater port. We have revised this section accordingly.

§ 148.105(s):

We added this new paragraph at a commenter's suggestion, to deal with refurbished OCS facilities and co-located fixed offshore components.

§ 148.105(t) (formerly (s)):

We added (t)(7), concerning information on a pipeline that will connect to the port, at the suggestion of one commenter. This commenter also asked us to add requirements for information on metering and sampling equipment, but that information is too detailed for the application phase and is more appropriately addressed after a license is issued.

§ 148.105(y):

In reviewing past hazard analyses, we added this new paragraph to require an independent risk assessment. The risk assessment evaluates the probability and consequences of various potential accidental and intentional cargo release incidents. The site-specific requirements of the risk assessment will be dependent on many factors, including the proximity of the port to the general public, its potential for impact on the public, waterway traffic density, environmental conditions, and the current availability of LNG release data and modeling methods. To date, there has been no large-scale testing of LNG releases over water to validate the existing models. Therefore, all assessments and models should be appropriately conservative in their assumptions and conclusions.

§ 148.105(z) (formerly (x)):

The MMS asked us to require more detailed technical information on environmental impacts and commingling issues. For the reasons already noted, we are retaining the current language, but emphasize that all applicants must meet any applicable statutory or regulatory requirements regardless of which agency enforces them.

§ 148.105(dd) (formerly (bb)):

One commenter recommended that we require applicants to list all MMS permits and reviews. This section already requires the applicant to list all Federal permits and authorizations not otherwise specified in part 148.

§ 148.108:

We revised this section for clarity, and in paragraph (c), at a commenter's suggestion, we lengthened what was formerly a 30-day time frame for requesting additional information. One commenter asked whether paragraph (d)(1) is limited to information that the Coast Guard needs. It is not. It is broad enough to cover any information that another agency involved in processing the application might need to fulfill that agency's obligations. For example, if a MMS-regulated facility could be affected by either the reuse of existing components or co-location with a deepwater port, the MMS could advise the Coast Guard and the applicant what data is required and whether the applicant must submit a revised Development Production Plan, or a Development Operations Coordinating Document, for a facility in the Gulf of Mexico.

§ 148.110:

We made minor revisions for clarity.

§ 148.115(c):

At the suggestion of one commenter, we revised this paragraph to make it clear that additional copies of the application may be requested in order to satisfy the requirements of other agencies involved in processing the application.

§ 148.125:

We made minor revisions for clarity, and revised paragraph (c) to emphasize that, while payment of additional costs is due when those costs are assessed, payment must be made before a deepwater port begins operation.

§ 148.209:

We made minor revisions for clarity. One commenter asked for a more comprehensive list of agencies involved in processing applications. This will vary depending on the location and specifics proposed for each port, but we have replaced a partial list of Federal agencies with a cross reference to our Interagency Memorandum of Understanding (MOU) for Processing Deepwater Port Applications.

§ 148.211(b):

One commenter said that applicants should have to submit fully revised applications if changes become too voluminous. We agree, and added this paragraph accordingly.

§ 148.217(c):

We revised this paragraph to clarify MARAD's role.

§ 148.221:

We revised this section for clarity.

§§ 148.222, 148.227:

We revised these sections to make it clear that they apply not only to the public hearing required by 33 U.S.C. 1504(g), but to any other public hearing or meeting that other applicable Federal statutes (for example, the National Environmental Policy Act) or regulations may require. Insofar as possible, we intend to employ similar procedures for hearings or meetings that applicable State or tribal law might require.

§ 148.276:

At the suggestion of one commenter, we have revised this section to clarify that the statutory timeline governs MARAD's issuance of a record of decision, but not the actual issuance of a license.

§ 148.283:

One commenter asked if this section addresses natural gas as well as oil deepwater ports. This section addresses any deepwater port.

Part 148, subpart D, §§ 148.300-148.320:

One commenter recommended amending these sections that relate to licenses, and to permit levying additional license fees based on license conditions, amendments, transfers, and reinstatements. This is unnecessary because additional fees for such costs can be levied under section 148.125.

§ 148.305:

At the suggestion of one commenter, we amended this section to clarify that the license conditions set by MARAD reflect the recommendations or requirements of all Federal agencies involved in processing an application.

§ 148.310:

One commenter recommended terminating a license if port construction does not begin within 5 years, or if port operations are suspended for more than 2 years, arguing that this would prevent an ineffective licensee from indefinitely barring other activities in the vicinity. We have revised the section to make it clear that MARAD has the authority to set conditions of termination in the license.

§ 148.315:

One commenter recommended imposing an inflation-adjustable fixed fee for amending, transferring or reinstating a license. Regulatory action is not needed because MARAD can address fees in setting license conditions.

§ 148.325:

In response to a commenter's suggestion, we are adding this section concerning the decommissioning of a deepwater port. The same commenter also recommended adding a requirement for applicants to demonstrate the financial capacity to restore a deepwater port site after decommissioning. Regulatory action for the second request is not necessary because applicants are already required to estimate decommissioning costs under section 148.105(g)(2)(iii), and MARAD can address the applicant's financial capability to decommission the port as a condition of the license.

§ 148.400:

One commenter recommended that we require the applicant to conduct a thorough OCS operations impact analysis, and include information on consultation with other Federal agencies. Regulatory action is not needed because the first concern is already addressed as part of any environmental assessment, while the second can be provided to applicants through interagency coordination.

§ 148.405(c)(3):

At the suggestion of one commenter, we are requiring the applicant to specify the depth limit for sediment testing, in order to prevent incidents associated with potential shallow geological hazards.

§ 148.505:

At MARAD's request we revised this section to require exemption applications to be sent to MARAD as well as the Coast Guard.

§ 148.605:

One commenter noted the temporary interim rule's deletion of a specific reference to the lower liability cap approved in 1995 for the Louisiana Offshore Oil Port (LOOP; see 60 FR 39849, Aug. 4, 1995), and sought verification that this deletion was not intended to alter LOOP's liability cap. That is correct. The 1995 liability cap for LOOP remains in place. We have merely determined that specific caps for individual ports need not be included in the Code of Federal Regulations in order for them to be valid.

§ 148.700:

One commenter implied that this section should provide more detail about an applicant's interaction with specific agencies. Regulatory action is not needed because this section provides only general information. Specific detail is communicated to each applicant in the normal course of the application process. See, for example, § 148.110, which provides for any person's right to confer with the Coast Guard about application requirements, and § 148.108, which provides for requesting the collection of additional information from an applicant.

§ 148.707:

One commenter suggested making this section more explicit about the actual criteria the Coast Guard applies in its environmental analyses, and about the broad scope that an environmental analysis may cover. Regulatory action is not needed because this section provides only general information. Specific detail is communicated to each applicant and to the public in the course of an environmental analysis that meets all applicable statutory and regulatory requirements.

§ 148.710(a)(2):

We clarified that the marine environment is the focus of this provision.

§ 148.710(b):

We revised this paragraph in response to a commenter who pointed out that 33 U.S.C. 1504(i)(3) does not apply to natural gas deepwater ports.

§ 148.710(c):

We are adding this paragraph in order to qualify the reference to “a single, detailed environmental impact statement or environmental assessment” in paragraph (b). Applicable regulations at 40 CFR 1502.9 permit the filing of supplemental environmental analyses in appropriate circumstances.

§ 148.715:

At a commenter's suggestion, we revised this section by replacing “prevent or minimize” with language based on the discussion of mitigation in 40 CFR 1508.20.

§§ 148.720, 148.725:

One commenter asked us to provide more information about other agencies' siting, design, construction, or operational criteria. Regulatory action is not needed because this section provides general information about Coast Guard implementation of applicable statutes. We partner with other agencies in processing each application, and they provide input based on the criteria under which they operate.

§ 148.730(a):

One commenter said it was not clear that this paragraph applies to State agencies only in designated adjacent States. It does, and we have revised the paragraph accordingly.

§ 148.737:

We made minor revisions at the suggestion of one commenter, and

emphasized that the list is informational and not all-inclusive. Also, we deleted paragraph designations and former paragraph (b), which is redundant of § 148.710.

Part 149 (§§ 149.1-149.700):

One commenter suggested an overall methodology for deepwater port design. Regulatory action is not needed because the current provisions of part 149 provide suitable flexibility and regulatory oversight.

§ 149.15:

One commenter asked us to provide more detail with respect to alterations and modifications that could require another agency's approval. Regulatory action is not needed because license conditions and interagency agreements can provide adequately for the circumstances outlined by the commenter.

§ 149.110:

One commenter asked us to specify emergency shut down and redundant protection measures under certain conditions. These measures can be addressed as part of the detailed, post-licensing design and engineering review and, once approved, described in the operations manual.

§ 149.305:

We amended this section to better align it with § 149.304(a)(2), in response to one commenter who noted a possible conflict.

§ 149.403:

We amended this section for clarification.

§ 149.415:

We amended this section to clarify that the fire main systems must be constructed in accordance with 33 CFR 127.067 or comply with a national consensus standard.

§§ 149.416, 149.417 and 149.418:

We removed these sections because they are redundant; the material discussed is adequately addressed in § 149.419. §§ 149.419, 149.420, 149.421, 149.422, 149.423 and 149.424 have been sequentially renumbered to align with the revised text.

§ 149.416 (formerly § 149.419):

One commenter suggested that this section's requirement for compliance with 33 CFR 127.609 is incompatible with 33 CFR 149.418(a) and 46 CFR 108.425. Regulatory action is not needed because there is no conflict. 33 CFR 149.418(a) has been removed, and the industry standard referenced by the commenter applies to hoses for water systems, not dry chemical hoses.

§ 149.420 (formerly § 149.423):

We added text to better define material construction of escape routes to provide adequate protection in the event of a fire.

§ 149.615:

We updated this section to indicate that if the licensee uses a Coast Guard accepted Certifying Entity (CE), that the CE as well as the Coast Guard must be provided with all plans.

§ 149.620:

One commenter asked us to require applicants to submit drawings to other agencies in appropriate circumstances. Regulatory action is not needed because the Coast Guard already makes drawings available to other agencies, when appropriate. A second commenter suggested that we should review and permit classification society guidelines. A similar suggestion was made with respect to § 149.625, and we believe the action we took in that section addresses the concern raised with respect to § 149.620.

§ 149.625:

One commenter said this section should require deepwater port structures to conform to MMS regulations for OCS platforms. An amendment is not needed because the current regulations appropriately provide for design innovation while retaining the need for compliance with all applicable law. In response to another commenter's observation, we redesignated paragraph (b) to paragraph (c) and added a new paragraph (b) to indicate that the licensee must submit to Commandant (G-P) a design basis for approval of the proposed standards that will be used in the fabrication and construction of all systems and components. This process is covered in greater detail in NVIC 03-05.

§ 149.641(b):

We revised this section for clarification.

§ 149.650:

In response to a commenter's suggestion, we revised this section to remove the reference to the American Bureau of Shipping. The substance of the section is not affected.

§ 149.660:

We revised this section for clarification.

§ 149.675:

At a commenter's request, we revised this section to apply only to deepwater ports whose design warrants the use of such a system. This revision takes into account the innovative design of some deepwater ports, for which public address systems are unnecessary.

§ 149.691:

At a commenter's suggestion, we revised this section to clarify that ports must either comply with 46 CFR 108.151, or follow an equivalent national consensus standard.

§ 149.697(c):

One commenter asked if the decibel level determination referenced in this paragraph can be made instantaneously. It cannot. We revised the paragraph to make it clear that the determination must be made using the method described in paragraph (b).

§ 150.10:

One commenter said that the port operations manual should include sections that deal with emergencies on ports that are co-located with MMS-regulated facilities. Necessary contingency measures will be addressed in the operations manual, but need not be detailed in regulatory text.

§ 150.15(l):

One commenter recommended that we add requirements for normal pressure settings during transfer, as well as all relief valve settings and sensors. An amendment is not necessary because these specifics would be better addressed in the operations manual.

§ 150.15(n):

We revised this paragraph by adding facility support services, and by clarifying that the listed equipment is only illustrative. The operations manual must include any key equipment that will need regular service or maintenance.

§ 150.15(o):

We added this requirement for a waste management plan in response to a commenter's request.

§ 150.15(q)(formerly (p)):

We added a requirement for procedures to notify nearby OCS facilities, at a commenter's suggestion.

§ 150.15(u):

At a commenter's request, we added this requirement for emergency evacuation procedures comparable to 33 CFR 146.140(d).

§ 150.15(x)(formerly (v)):

We revised this paragraph concerning security plans, for clarity.

§ 150.15(y):

At a commenter's suggestion, we added language concerning special operations plans for contingency response in the event of an incident that might affect nearby OCS facilities. However, we emphasize that, like many lists in this subchapter, the list of special operations in this paragraph is merely illustrative. Depending on a proposed port's specific circumstances, other special operations plans could be required by this paragraph.

§ 150.15(aa)(formerly (y)):

We revised this paragraph for clarity, and added a risk management plan option. Also, we responded to a commenter's statement that “periodic re-examination” should take place every five years in environmentally sensitive areas. National Oceanic and Atmospheric Administration (NOAA) Fisheries has previously applied the five-year standard in approving a deepwater port license application, and we are including it in this paragraph for all deepwater ports.

§ 150.20:

We revised this section for clarity, and to address a commenter's request that additional copies be provided to other agencies as needed.

§ 150.50:

One commenter asked us to require applicants to provide an oil spill response plan to the MMS in appropriate circumstances. Such plans must be included in the operations manual pursuant to § 150.15(y)(6) and

will be distributed to other agencies pursuant to § 150.20.

§ 150.100:

We revised the last sentence of this section for clarity. One commenter said that this section should describe another agency's authority to inspect a deepwater port under certain circumstances. An amendment is not needed because each operations manual must account for the circumstances under which specific agencies can inspect the deepwater port.

Part 150.105:

We revised this part for clarification to indicate that, prior to implementing a self-inspection plan for a deepwater port, the operator must obtain Coast Guard acceptance to ensure quality assurance of the process.

Part 150, subpart D (§§ 150.300-150.385):

One commenter asked us to provide more detail about safety zones, anchorage areas, and areas to be avoided. An amendment is not needed, because these sections merely require compliance with zones and areas that are established and described pursuant to other laws and regulations.

§ 150.380:

We revised the table to further clarify vessel and OCS (OCS) facility operating conditions and restrictions, and to remove a reference to an obsolete section.

§ 150.435:

One commenter asked us to add that under certain circumstances, deepwater port operations can be halted in order to ensure safety. An amendment is not needed because those circumstances would be evaluated as part of the deepwater port's risk assessment, and spelled out in its operations manual.

§ 150.440(d):

An applicant inquired if the implementation of a suspension would be delayed while under appeal. It would not be, and we revised this paragraph to make that clear.

§ 150.445:

We revised this section to clarify that a suspension order is in effect while an operator is preparing and submitting a petition to have the suspension lifted. The withdrawal of a suspension will not take effect until the District Commander has rendered a final decision.

§ 150.505(b):

At the suggestion of one commenter, we revised this paragraph to eliminate a reference to an inspection certification, which is not required, and replace it with a reference to the self-inspection required by § 150.105. This commenter also suggested that the boat-release gear be examined every 30 months, but we think it is appropriate to retain the more flexible current regulatory language, which provides for inspections in accordance with manufacturer's recommendations.

§ 150.611:

We corrected the reference to OSHA head-protection regulations.

§ 150.613(b):

We removed an obsolete alternative deadline for completing the initial noise survey.

§ 150.625(c):

We added the proviso that a material safety data sheet (MSDS) may be used for training personnel in the use of hazardous materials provided the employee acknowledges and demonstrates appropriate safety measures.

§ 150.812:

We added this section at one commenter's suggestion that we provide more information on how the Coast Guard will follow up on a casualty report.

§ 150.815:

One commenter pointed out that, in appropriate circumstances, casualty reports must also be submitted to other agencies. We revised this section accordingly. We also added a clarification that the testing required under paragraph (b) will be conducted in accordance with 33 CFR part 140.

§ 150.820:

We added paragraph (d) in response to a commenter's suggestion.

§ 150.905:

At a commenter's suggestion, we revised this section to provide more information.

§ 150.910:

We revised this section for clarity and to indicate that mandatory prohibitions apply only in safety zones, not in areas to be avoided (ATBAs), which are recommendatory. One commenter noted that this section does not describe the circumstances under which existing legal agreements might call for installations, structures, or activities in the vicinity of the deepwater port, other than those directly associated with the deepwater port. An amendment is not needed because these circumstances would be evaluated as part of the deepwater port's risk assessment, and mitigating measures would be spelled out in the port's operations manual.

§ 150.915:

We revised this informational section for clarity, and in response to a commenter's suggestions. The commenter asked us not to establish a safety zone without prior public notice and comment. We decline to make such a commitment because, under certain circumstances, the public health or safety needs may require emergency regulatory action. However, we deem it appropriate to elaborate here on the process for establishing safety zones, no anchoring areas (NAAs) and (ATBAs). The Coast Guard works with the Departments of Commerce, Defense, the Interior, and State to make sure their interests are taken into account in the creation of these zones. Further, before the U.S. Government proposes a NAA or ATBA to the International Maritime Organization (IMO) for approval, the Shipping Coordinating Committee of the Department of State is used to develop the U.S. Government position on the nature and scope of such measures. Because the Shipping Coordinating Committee is a Federal Advisory Committee Act (FACA) committee, its meetings are open to the public; a notice is put in the

Federal Register,

so all interested members of the public, all stakeholders, including environmental organizations, and any existing or prospective OCS leaseholders in the area have notice and an opportunity to present their views.

§ 150.940:

We added this section in 2005, in response to a comment on the TIR, and will update it as new deepwater ports become operational. General definitions for various vessel routing measures have been added in § 148.5. More specific provisions will be included in each deepwater port's license and operations manual.

Regulatory Evaluation

This final 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. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary.

The Coast Guard received no comments on the regulatory evaluation, which included the impact on small entities and the collection of information statement, and was published in the interim rule.

In this final rule, the Coast Guard is permanently adopting, with revisions, the regulations contained in the temporary interim rule we published at the beginning of 2004. The temporary interim rule updated the original 1975 regulations that applied only to deepwater ports that handle petroleum. It modernized and streamlined the regulations in accordance with the Deepwater Port Modernization Act of 1996, and also extended those regulations to apply to deepwater ports that handle natural gas, in accordance with the Maritime Transportation Security Act of 2002. The temporary interim rule expires on October 1, 2006, and must be replaced by a final rule on or before that date in order to continue the regulatory program introduced in 2004. The final rule also incorporates lessons learned from processing several deepwater port applications, and addresses public comments received in response to the temporary interim rule.

For the final rule, we updated the regulatory evaluation to include

information on the additional deepwater port that has begun to operate.

We expect the costs of this final rule to have a nominal effect on the owners and operators of deepwater ports. Currently, there are two licensed and operating deepwater ports, the Louisiana Offshore Oil Port (LOOP) and the Excelerate Energy's Gulf Gateway deepwater port that receives LNG. LOOP represents industry standards for manned deepwater ports. Gulf Gateway is a small, unmanned submerged turret loading (STL) buoy that is in full compliance with this final rule.

In a report to the Secretary of Energy, the National Petroleum Council estimated that fewer than ten new LNG import terminals (onshore and deepwater) will be licensed and operating in 2025. We expect that the new deepwater ports will follow existing industry standards and, therefore, will incur, at most, the same costs as the existing compliant deepwater ports. We assume that no manned deepwater ports will be larger or more extensive than LOOP. We assume that unmanned deepwater ports will be roughly similar to Gulf Gateway. We also assume that the design and construction of new deepwater ports (manned or unmanned) will follow the industry standards.

The final rule is consistent with the industry's request to have its regulations aligned with the current industry standards and future OCS regulations. The benefits are the result of updating and removing unnecessary and obsolete regulations. The final rule incorporates current industry practices. As such, the industry will benefit, as this certainty eliminates the risk that industry will be liable for unexpected investments made necessary to comply with federal regulations. To the extent that revised regulations facilitate the development of new deepwater ports, the final rule also benefits the nation's overall economy, by making development of an adequate energy infrastructure more likely.

We do not expect that new collection of information burdens will be placed on the affected entities, because the industry is already compliant with safety, environmental, and training report activities. The reporting requirements established by current industry practice will aid its ability to enforce regulations, thereby promoting safety and security of life and property. Furthermore, by recording training, personnel and safety information, deepwater ports will increase their own safety and security level by improving accident readiness, noise level awareness, lifesaving equipment preparation and situational awareness.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this final 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 government jurisdictions with populations of less than 50,000.

There are two entities that operate an existing deepwater port. LOOP is owned by a consortium of three multinational energy corporations and, therefore, LOOP does not qualify as a small entity. Gulf Gateway is wholly owned by Excelerate Energy, a private company. Excelerate Energy also does not qualify as a small entity. Given that investment in deepwater ports requires several hundred million dollars, we do not expect any licensee or operator of future deepwater ports to qualify as a small entity. No not-for-profit organizations are expected to be involved with deepwater ports. Finally, deepwater ports are by definition beyond the range of small government jurisdictions.

Therefore the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities.

Collection of Information

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

Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them.

We have analyzed this rule under that Order and have determined that it does not have implications for federalism. 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 final rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

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

Civil Justice Reform

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

Indian Tribal Governments

This final 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 final 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.

Technical Standards

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule requires compliance with numerous technical standards that have been set in regulations adopted by the Coast Guard and other Federal agencies. In all cases, those regulations either (1) specify the use of a voluntary consensus standard; (2) specify performance levels that may be met through the use of a voluntary consensus standard; (3) permit the use of equivalents, which may be derived from voluntary consensus standards; or (4) are subject to the exemption or adjustment provisions of Part 148, Subpart F, “Exemption from or Adjustments to Requirements in this Subchapter.”

Environment

We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(a), (c), and (i) of the Instruction, and under section 6(b) of the “Appendix to National Environmental Policy Act: Coast Guard Procedures for Categorical Exclusions, Notice of Final Agency Policy,” (67 FR 48244, July 23, 2002) from further environmental documentation. The environmental impact associated with requiring additional equipment, training, safety inspections and recordkeeping under this rule will have an insignificant impact on the environment and will benefit the environment by requiring safe operations of deepwater ports. The environmental impact of each deepwater port applicant is assessed under the licensing process. A “Categorical Exclusion Determination” is available in the docket where indicated under

ADDRESSES.

A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under

ADDRESSES.

List of Subjects

33 CFR Part 148

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

33 CFR Part 149

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

33 CFR Part 150

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

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

SUBCHAPTER NN—DEEPWATER PORTS

PART 148—DEEPWATER PORTS: GENERAL

Subpart A—General

Sec.

148.1

What is the purpose of this subchapter?

148.2

Who is responsible for implementing this subchapter?

148.3

What Federal agencies are responsible for implementing the Deepwater Port Act?

148.5

How are terms used in this subchapter defined?

148.8

How are certifying entities designated and used for purposes of this subchapter?

Subpart B—Application for a License

148.100

What is the purpose of this subpart?

148.105

What must I include in my application?

148.107

What additional information may be required?

148.108

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

148.110

How do I prepare my application?

148.115

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

148.125

What are the application fees?

Subpart C—Processing Applications

General

148.200

What is the purpose of this subpart?

148.205

How are documents related to the application maintained?

148.207

How and where may I view docketed documents?

148.209

How is the application processed?

148.211

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

148.213

How do I withdraw my application?

148.215

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

148.217

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

148.221

How do I claim, or object to a claim, that required information is privileged?

Public Hearings or Meetings

148.222

When must public hearings or meetings be held?

148.227

How is a public hearing or meeting reported?

Formal Hearings

148.228

What if a formal evidentiary hearing is necessary?

148.230

How is notice of a formal hearing given?

148.232

What are the rules for a formal hearing?

148.234

What are the limits of an Administrative Law Judge's jurisdiction?

148.236

What authority does an Administrative Law Judge have?

148.238

Who are the parties to a formal hearing?

148.240

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

148.242

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

148.244

Who must represent the parties at a formal hearing?

148.246

When is a document considered filed and where should I file it?

148.248

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

148.250

Who must be served before a document is filed?

148.252

What is the procedure for serving a subpoena?

148.254

How is a hearing transcript prepared?

148.256

What happens at the conclusion of a formal hearing?

Approval or Denial of the Application

148.276

When must the application be approved or denied?

148.277

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

148.279

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

148.281

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

148.283

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

Subpart D—Licenses

148.300

What does this subpart concern?

148.305

What is included in a deepwater port license?

148.307

Who may consult with the Commandant (G-P) and the Maritime

Administrator on developing the proposed conditions of a license?

148.310

How long does a license last?

148.315

How is a license amended, transferred, or reinstated?

148.320

How is a license enforced, suspended, or revoked?

148.325

How soon after port decommissioning must the licensee initiate removal?

Subpart E—Site Evaluation and Pre-Construction Testing

148.400

What does this subpart do?

148.405

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

148.410

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

148.415

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

148.420

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

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

148.500

What does this subpart do?

148.505

How do I apply for an exemption?

148.510

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

148.515

When is an exemption allowed?

148.600

What is the limit of financial liability?

148.605

How is the limit of liability determined?

Subpart G—Environmental Review Criteria for Deepwater Ports

148.700

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

148.702

How were the environmental review criteria developed?

148.705

What is determined by the environmental evaluation?

148.707

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

148.708

Must the applicant's proposal reflect potential regulations?

148.709

How are these criteria reviewed and revised?

148.710

What environmental conditions must be satisfied?

148.715

How is an environmental review conducted?

148.720

What are the siting criteria?

148.722

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

148.725

What are the design, construction and operational criteria?

148.730

What are the land use and coastal zone management criteria?

148.735

What are other critical criteria that must be evaluated?

148.737

What environmental statutes must an applicant follow?

Authority:

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

Subpart A—General

§ 148.1

What is the purpose of this subchapter?

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

§ 148.2

Who is responsible for implementing this subchapter?

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

§ 148.3

What Federal agencies are responsible for implementing the Deepwater Port Act?

(a) Under delegations from the Secretary of Homeland Security and the Secretary of Transportation, the Coast Guard and the Maritime Administration (MARAD) coordinate with each other in processing applications for the issuance, transfer, or amendment of a license for the construction and operation of a deepwater port.

(b) MARAD is responsible for issuing the Record of Decision to announce whether a license application is approved, approved with conditions, or denied, and for issuing, revoking, and reinstating deepwater port licenses. MARAD also has authority over the approval of fees charged by adjacent coastal States, and certain matters relating to international policy, civil actions, and suspension or termination of licenses.

(c) The Secretary of Transportation has delegated authority over pipeline matters to the Pipeline Hazardous Materials and Safety Administration.

(d) The Environmental Protection Agency (EPA), U.S. Army Corps of Engineers, Minerals Management Service (MMS) in the Department of Interior, and other Federal agencies are designated as cooperating agencies and support the Coast Guard and MARAD in the review and evaluation of deepwater port license applications. You can view the interagency memorandum of understanding (MOU) outlining the relative roles and responsibilities of these and other Federal agencies at:

http://www.uscg.mil/hq/G-P/mso/docs/dwp_white_house_task_force_energy_streamlining.pdf.

§ 148.5

How are terms used in this subchapter defined?

As used in this subchapter:

Act

means the Deepwater Port Act of 1974, 33 U.S.C. 1501 et seq., as amended.

Adjacent coastal State

means any coastal State which:

(1) Would be directly connected by pipeline to a deepwater port, as proposed in an application;

(2) Would be located within 15 miles of any such proposed deepwater port; or

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

Affiliate

means a person:

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

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

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

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

Applicant

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

Application

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

Approval series

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

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

Approved

means approved by the Commandant (G-P).

Area to be avoided

or

ATBA

means a routing measure comprising an area within defined limits in which either navigation is particularly hazardous or it is exceptionally important to avoid casualties and should be avoided by all ships or certain classes of vessels. An ATBA may be either recommended (“recommendatory”) or mandatory. An ATBA is recommendatory when ships are advised to navigate with caution in light of specially hazardous conditions. An ATBA is mandatory when navigation is prohibited or subject to a competent authority's conditions. ATBAs for deepwater ports are recommendatory.

Barrel

means 42 U.S. gallons (approximately 159 liters) at atmospheric pressure and 60 °F (approximately 15.56 °C).

Captain of the Port

or

COTP

means a Coast Guard officer who commands a

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

Certified industrial hygienist

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

Certified marine chemist

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

Certifying entity

or

CE

means any individual or organization, other than the operator, permitted by the Commandant (G-PSO) to act on behalf of the Coast Guard pursuant to section 148.8 of this subpart. The activities may include reviewing plans and calculations for construction of deepwater ports, conducting inspections, witnessing tests, and certifying systems and/or components associated with deepwater ports as safe and suitable for their intended purpose.

Citizen of the United States means:

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

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

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

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

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

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

Coastal environment

means the coastal waters including the lands in and under those waters, internal waters, and the adjacent shorelines including waters in and under those shorelines. The term includes, but is not limited to:

(1) Transitional and intertidal areas, bays, lagoons, salt marshes, estuaries, and beaches;

(2) Fish, wildlife, and other living resources of those waters and lands; and

(3) The recreational and scenic values of those lands, waters, and resources.

Coastal State

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

Commandant (G-P)

means the Assistant Commandant for Prevention, or that individual's authorized representative, at Commandant (G-P), U.S. Coast Guard, 2100 Second Street, SW., Washington, DC 20593-0001.

Confined space

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

(1) Has poor natural ventilation, such as a space with limited openings, for example a cofferdam or double bottom tank; or

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

Construction

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

Control

means the direct or indirect power to determine the policy, business practices, or decisionmaking process of another person, whether by stock or other ownership interest, by representation on a board of directors or similar body, by contract or other agreement with stockholders or others, or otherwise.

Crude oil

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

(1) Liquids technically defined as crude oil;

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

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

Dangerous atmosphere

means an atmosphere that:

(1) May expose personnel to the risk of death, incapacitation, injury, or acute illness; or

(2) May impair ability to escape from the atmosphere unaided.

Deepwater port:

(1) Means any fixed or floating manmade structures other than a vessel, or any group of structures, located beyond State seaward boundaries that are used or are intended for use as a port or terminal for the transportation, storage, or further handling of oil or natural gas for transportation to any State, except as otherwise provided in the Deepwater Port Act of 1974, as amended, and for other uses not inconsistent with the purposes of the Deepwater Ports Act, including transportation of oil or natural gas from the United States' OCS;

(2) Includes all components and equipment, including pipelines, pumping stations, service platforms, buoys, mooring lines, and similar facilities, to the extent that they are located seaward of the high water mark;

(3) Includes, in the case of natural gas, all components and equipment, including pipelines, pumping or compressor stations, service platforms, buoys, mooring lines, and similar facilities which are proposed and/or approved for construction and operation as part of the deepwater port, to the extent that they are located seaward of the high water mark and do not include interconnecting facilities; and

(4) Shall be considered a “new source” for purposes of the Clean Air Act, 42 U.S.C. 7401

et seq.

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

et seq.,

as amended.

District commander

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

Emergency medical technician

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

Engineering hydrographic survey

means a detailed geological analysis of seabed soil samples performed to determine the physical composition, for example the mineral content, and structural integrity for the installation of offshore components and structures.

Governor

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

Gross under keel clearance

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

Hose string

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

Hot work

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

Lease block

means an area established either by the Secretary of the Interior under section 5 of the OCS Lands Act, 43 U.S.C. 1334, or by a State under section 3 of the Submerged Lands Act, 43 U.S.C. 1311.

License

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

Licensee

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

Marine environment

includes:

(1) The coastal environment, waters of the contiguous zone, the Exclusive Economic Zone, and the high seas;

(2) Fish, wildlife, and other living resources of those waters; and

(3) The recreational and scenic values of those waters and resources.

Marine site

means the area in which the deepwater port is located, including the safety zone and all areas seaward of the high water mark in which associated components and equipment of the deepwater port are located.

Maritime Administration

or

MARAD

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

Metering platform

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

Natural gas

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

Natural gas liquids

means liquid hydrocarbons associated with or extracted from natural gas, for example ethane, propane and butane extracted from natural gas.

Net under keel clearance

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

No anchoring area

or NAA means a routing measure comprising an area within defined limits where anchoring is hazardous or could result in unacceptable damage to the marine environment. Anchoring in a no anchoring area should be avoided by all vessels or certain classes of vessels, except in case of immediate danger to the vessel or the person on board.

Officer in Charge of Marine Inspection

or

OCMI

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

Offshore competent person

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

(1) Hazard description and recognition;

(2) Hazard evaluation and measurement;

(3) Hazard prevention;

(4) Control and elimination; and

(5) Practical application simulation.

Oil

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

Operator

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

Person

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

Person in Charge (PIC)

means an individual designated as a person in charge of transfer operations under § 154.710 for oil facilities or § 127.301 for liquefied natural gas (LNG) facilities. Within this subchapter, other references to person in charge, without the use of the acronym PIC, will mean a person in charge of an operation other than transfer operations.

Personnel

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

Pipeline end manifold

means the pipeline end manifold at a single point mooring.

Platform

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

Pumping platform complex

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

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

(2) Has berthing and messing facilities; and

(3) Has a landing area for helicopters.

Reconnaissance hydrographic survey

means a scientific study of fresh and saltwater bodies, currents and water content, cultural resources, seabed soils and subsea conditions, for example existing pipelines or subsea wells. A visual representation of the survey findings is normally depicted on a chart of the examined area.

Routing systems

means any system of one or more vessel routes or routing measures aimed at reducing the risk of casualties. It includes traffic separation schemes, two-way routes, recommended tracks, areas to be avoided, no anchoring areas, inshore traffic zones, roundabouts, precautionary areas and deepwater routes.

Safety zone

means a safety zone established around a deepwater port under part 150, subpart J, of this chapter. The safety zone may extend to a maximum distance of 500 meters (approximately 1,640 feet) around the facility, measured from each point on its outer edge or from its construction site, except as authorized by generally accepted international standards or as recommended by the International Maritime Organization. However, the zone may not interfere with the use of recognized sea lanes.

Single point mooring

or

SPM

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

Single point mooring oil transfer system

or

SPM-OTS

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

Single (or multiple) point mooring natural gas transfer system

or

SPM-NGTS

(or MPM-NGTS) means the part of the natural gas transfer system from the pipeline end manifold to the end of the hose string that connects to the tanker's manifold.

State

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

Support vessel

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

(1) Tug;

(2) Line-handling boat;

(3) Crew boat;

(4) Supply vessel;

(5) Bunkering vessel;

(6) Barge; or

(7) Other similar vessel.

Survival craft

means a craft described in § 149.303 of this subchapter.

Tanker

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

Vessel

means every description of watercraft, including non-displacement

craft e.g., wing-in-ground (WIG) craft, seaplanes) capable of being used, as a means of transportation on or through the water.

§ 148.8

How are certifying entities designated and used for purposes of this subchapter?

(a) Applicants and licensees may nominate a certifying entity (CE) for the performance of tasks for which the Coast Guard is responsible under this subchapter.

(b) Nominations may be made at any time after the Maritime Administration issues a record of decision approving the application, and must include the following information for each nominee:

(1) The specific functions or tasks to be performed by the nominee;

(2) Name and address;

(3) Size and type of organization or corporation;

(4) Previous experience as a CE, certified verification agent, or similar third-party representative;

(5) Experience in design, fabrication, or installation of fixed offshore oil and gas platforms, similar fixed, floating, or gravity-based structures and project-related structures, systems, and equipment;

(6) Technical capabilities, including professional certifications and organizational memberships of the nominee or the primary staff to be associated with its duties for the specific project;

(7) In-house availability of, or access to, appropriate technology such as computer modeling programs and hardware or testing materials and equipment;

(8) Ability to perform and effectively manage the duties for which it is nominated considering current resource availability;

(9) Previous experience with regulatory requirements and procedures;

(10) A statement signed by the nominee's chief officer or that person's designee that the nominee:

(i) Is not owned or controlled by the designer, manufacturer, or supplier of any equipment, material, system, or subsystem that would be the subject of the nominee's duties, or by any manufacturer of similar equipment or material; and that

(ii) The nominee will allow access to an official representative of the Coast Guard, upon request, to facilities or records that relate to its duties; and

(11) A list of documents and certifications to be furnished to the Coast Guard by the nominee.

(c) The Commandant (G-P) may accept or reject the nomination of a CE and will provide guidance and oversight to each CE. The Commandant (G-P) may terminate the acceptance of a CE at any time.

Subpart B—Application for a License

§ 148.100

What is the purpose of this subpart?

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

§ 148.105

What must I include in my application?

Your application must include the information required by this section.

(a)

General.

For each applicant, affiliate, and consultant:

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

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

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

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

(5) A statement for each applicant or affiliate, providing complete and detailed information on any civil or criminal legal proceeding during the preceding 5 years that relates to, or that could materially affect, information in the license application; and,

(6) A declaration by the applicant that neither the applicant nor its affiliate has engaged in any lobbying activities that are prohibited by 31 U.S.C. 1352 or any other applicable Federal anti-lobbying statute.

(b)

Experience in matters relating to deepwater ports.

(1) A description of the applicant's, affiliate's, and consultant's experience in offshore operations, particularly operations involving the transfer and storage of liquid cargo, and the loading and unloading of vessels.

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

(c)

Engineering firms.

For each engineering firm, if known, that will design the deepwater port or a portion of the port, the application must include the firm's:

(1) Name;

(2) Address;

(3) Citizenship;

(4) Telephone number; and

(5) Qualifications.

(d)

Citizenship and operating authority.

For each applicant or group of applicants, provide:

(1) An affidavit that the applicant is a citizen of the United States;

(2) For State agency applicants, the law authorizing the applicant to undertake the operations detailed in the application;

(3) For private corporation applicants, the current charter or certificate of incorporation and current by-laws; and affidavits of U.S. or foreign citizenship from the president, chairman of the board, and each director or their equivalents; for limited liability companies, the equivalent organizational documents, and affidavits from the members of the Board of Managers, and members; and

(4) For partnerships, including limited liability partnerships, or associations not formed or owned solely by individual citizens of the United States, the certificate of formation; the partnership agreement or articles of association; the current by-laws; the minutes of the first board meeting; and affidavits of U.S. or foreign citizenship from the president and each director, or their equivalents.

(e)

Address for service of documents.

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

(f)

Location and use.

The proposed location and capacity of the deepwater port, a general description of the anticipated use of the port, and whether access will be open or closed.

(g)

Financial information.

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

(i) Annual financial statements, audited by an independent certified public accountant, for the previous 3 years, including, but not limited to, an income statement, balance sheet, and cash flow statement with footnote disclosures prepared according to U.S. Generally Accepted Accounting Principles; provided, however, that the Commandant (G-P), in concurrence

with MARAD, may waive this requirement upon finding:

(A) That the affiliate does not, in the normal course of business, produce audited statements; and

(B) That the affiliate is part of a larger corporate group whose audited statement provides sufficient information to support an adequate assessment of the affiliate's relationship with and impact on the applicant; and

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

(2) An estimate of construction costs, including:

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

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

(iii) A preliminary estimate of the cost of removing all of the deepwater port marine components, including pipelines that lie beneath the seabed. The operator of a deepwater port is responsible for the costs associated with removal of all port components. Should a license be granted, MARAD will require a bond, guarantee, or other financial instrument to cover the complete cost of decommissioning as a condition of the license.

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

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

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

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

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

(5) The throughput reports for the calendar year preceding the date of the application, for the applicant and each of the applicant's affiliates engaged in producing, refining, or marketing oil or natural gas and natural gas liquids, along with a copy of each existing or proposed throughput agreement. Each throughput report must list the throughput of the following products:

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

(ii) Gasoline;

(iii) Jet aviation fuel;

(iv) Distillate fuel oils;

(v) Other refinery products;

(vi) Natural gas; and

(vii) Natural gas liquids.

(h)

Construction contracts and construction-related studies.

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

(2) A listing and abstract of:

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

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

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

(i) Name;

(ii) Address;

(iii) Citizenship;

(iv) Telephone number; and

(v) Qualifications.

(i)

Compliance with Federal water pollution requirements

.

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

(2) In cases where certification under 33 U.S.C. 1341(a)(1) must be obtained from the Environmental Protection Agency Administrator, the request for certification, and pertinent information, such as plume modeling, related to the certification.

(j)

Coastal zone management

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

(k)

Identification of lease block

.

(1) Identification of each lease block where any part of the proposed deepwater port or its approaches is located. This identification must be made on official OCS leasing maps or protraction diagrams, where available. Each map and diagram must be certified by a professional surveyor. For each lease block, provide the following:

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

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

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

(3) Detailed information concerning the present and planned use of each block.

(l)

Overall site plan

. Single-line drawings showing the location and type of each component of the proposed deepwater port and its necessary facilities, including:

(1) Floating structures;

(2) Fixed structures;

(3) Aids to navigation;

(4) Manifold systems; and

(5) Onshore storage areas, pipelines, and refineries.

(m)

Site plan for marine components

. A site plan consisting of the following:

(1) The proposed size and location of all:

(i) Fixed and floating structures and associated components seaward of the high water mark, only if the proposal does not involve a connected action, for example, installation of new pipeline extending inshore of the state boundary line;

(ii) Recommended ships' routing measures and proposed vessel traffic patterns in the port area, including aids to navigation;

(iii) Recommended anchorage areas and, for support vessels, mooring areas; and

(2) A reconnaissance hydrographic survey of the proposed marine site. This survey should provide data on the water depth, prevailing currents, cultural resources, and a general characterization of the sea bottom. A requirement to submit an engineering hydrographic survey of the final marine site will be imposed as a condition in the license. The latter survey will require more extensive analysis of the soil, and detailed study to determine its physical composition, such as minerals, and if the sea bottom can support fixed components comprising a deepwater port. The applicant may submit existing data, gathered within the previous 5 years, but it must be supplemented by field data for the specific locations in which a high degree of variability exists.

(n)

Soil data

. An analysis of the general character and condition of the ocean bottom, sub-bottom, and upland soils throughout the marine site. The applicant may use existing data, so long as it was collected within the last 5

years and continues to provide accurate information about conditions throughout the site. If not, a new survey must be completed to provide supplemental data. The analysis must include an opinion by a registered professional engineer specializing in soil mechanics concerning:

(1) The suitability of the soil to accommodate the anticipated design load of each marine component that will be fixed to or supported on the ocean floor; and

(2) The stability of the seabed when exposed to environmental forces resulting from severe storms or lesser forces that occur over time, including any history of accretion or erosion of the coastline near the marine site.

(o)

Archeological information

. An analysis of the information from the reconnaissance hydrographic survey by a qualified underwater archeologist to determine the historical or other significance of the area where the site evaluation and pre-construction testing activities were conducted. The analysis must meet standards established by the Minerals Management Service for activities on the OCS, or an alternative standard that has been submitted to and approved by the Coast Guard. The survey must include the areas potentially affected by the deepwater port, or any other associated platforms, and its pipeline route(s).

(p)

Vessel information

.

(1) The nation of registry for, and the nationality or citizenship of, officers and crew serving on board vessels transporting natural gas that are reasonably anticipated to be servicing the deepwater port; and

(2) Description of the information that will be provided in the operations manual pertaining to vessel operations, vessel characteristics, and weather forecasting.

(q)

Information on floating components

.

(1) A description and preliminary design drawing of each floating component, including the hoses, anchoring or securing structure, and navigation lights if the component is a mooring buoy.

(2) The criteria, developed under part 149 of this chapter, to which each floating component will be designed and built.

(3) The design standards and codes to be used.

(4) The title of each recommended engineering practice that will be applied.

(5) A description of safety, firefighting, and pollution prevention equipment to be used on each floating component.

(6) A description of the lighting that will be used on floating hoses, for night detection.

(r)

Information on dedicated fixed offshore components

.

(1) A description and preliminary design drawing for each dedicated fixed offshore component.

(2) The design criteria, developed under part 149 of this chapter, to which each fixed offshore component will be designed and built.

(3) The design standards and codes to be used.

(4) The title of each recommended engineering practice to be followed.

(5) A description of the following equipment that will be installed:

(i) Navigational lighting;

(ii) Safety equipment;

(iii) Lifesaving equipment;

(iv) Firefighting equipment;

(v) Pollution prevention equipment, excluding response equipment which must be outlined in the facility response plan; and

(vi) Waste treatment equipment.

(6) A description and preliminary design drawing of the following:

(i) The cargo pumping equipment;

(ii) The cargo piping system;

(iii) The control and instrumentation system; and

(iv) Any associated equipment, including equipment for oil or natural gas throughput measuring, leak detection, emergency shutdown, and the alarm system.

(7) The personnel capacity of each deepwater port pumping platform complex.

(s)

Refurbished OCS facilities and co-located fixed offshore components

.

(1) A description and preliminary design drawing for each such facility or component.

(2) The design criteria, developed under part 149 of this chapter, to which each facility or component will be designed and built or modified;

(3) The design standards and codes to be used;

(4) The title of each recommended engineering practice to be followed;

(5) A description of the following equipment to be installed or refurbished:

(i) Navigational lighting;

(ii) Safety equipment;

(iii) Lifesaving equipment;

(iv) Firefighting equipment;

(v) Pollution prevention equipment, excluding response equipment which must be outlined in the facility response plan;

(vi) Waste treatment equipment; and

(vii) Cathodic protection.

(6) A description and preliminary design drawing of the following:

(i) The cargo pumping equipment;

(ii) The cargo piping system;

(iii) The control and instrumentation system; and

(iv) Any associated equipment, including equipment for oil or natural gas throughput measuring, leak detection, emergency shutdown, and the alarm system.

(7) The personnel capacity of each deepwater port pumping platform complex.

(t)

Information on offshore pipelines

.

(1) A description and preliminary design drawing of the marine pipeline, including:

(i) Size;

(ii) Throughput capacity;

(iii) Length;

(iv) Depth of cover; and

(v) Protective devices.

(2) The design criteria to which the marine pipeline will be designed and built.

(3) The design standards and codes to be used.

(4) The title of each recommended engineering practice to be followed.

(5) A description of the metering system that will measure flow rate.

(6) Information concerning all submerged or buried pipelines that will be crossed by the offshore pipeline, and how each crossing will be made.

(7) Information on the pipeline that will connect to the port, including a detailed analysis that shows throughput and capacity rates of all pipelines involved in the transport of product to shore.

(u)

Information about onshore components.

To the extent known by the applicant:

(1) A description of the location, capacity, and ownership of all planned and existing onshore pipelines, storage facilities, refineries, petrochemical facilities, and transshipment facilities that will be served by the deepwater port. Crude oil or natural gas gathering lines and lines wholly within a deepwater port must be included in data about onshore components only if specifically required. Entry points and major connections between lines and with bulk purchasers must be included.

(2) A chart showing the location of all planned and existing facilities that will be served by the port, including:

(i) Onshore pipelines;

(ii) Storage facilities;

(iii) Refineries;

(iv) Petrochemical facilities; and

(v) Transshipment facilities.

(3) A copy of all proposals or agreements with existing and proposed refineries that will receive oil transported through the deepwater port, the location and capacity of each such

refinery, and the anticipated volume of such oil to be refined by each such refinery.

(v)

Information on miscellaneous components.

(1) A description of each radio station or other communications facility to be used during construction and operation of the deepwater port and its proposed concept of operation.

(2) A description of the radar navigation system to be used in operation of the deepwater port outlined in the operations manual.

(3) A description of the method that will be used for bunkering vessels using the deepwater port.

(4) A brief description of the type, size, and number of vessels that will be used in bunkering, mooring, and servicing the vessels using the deepwater port.

(5) A description and location of the shore-based support facilities, if any, that will be provided for vessels that will be used in bunkering, mooring, and servicing the vessels using the deepwater port; or that serve as offices or facilities in support of the deepwater port operations.

(6) A copy of the actual radio station license, or, if not available, a copy of the application sent to the Federal Communications Commission, if available.

(w)

Construction procedures.

A description of the method and procedures to be used in constructing each component of the deepwater port, for example shoreside fabrication, assembly and support, including anticipated dates of completion for each specific component during each phase of construction.

(x)

Operations manual.

A draft of the operations manual for the proposed port, containing the information under § 150.15 of this chapter, must demonstrate the applicant's ability to operate the port safely and effectively. To the extent that circumstances are similar, this demonstration can be in the form of evidence appended to the draft operations manual of the applicant's participation in the safe and effective management or operation of other offshore facilities, for example, evidence of compliance with Mineral Management Service requirements for those facilities. If the information required for the manual is not available, state why it is not and when it will be available.

(y)

Risk and consequence assessment.

Data to support an independent, site-specific analysis to assess the risks and consequences of accidental and intentional events that compromise cargo containment. At minimum, potential events that result in liquefied natural gas or oil spill, vapor dispersion and/or fire will be analyzed. The Coast Guard will utilize validated models, for example computational fluid dynamics or an equivalent model. The applicant may consult with Commandant (G-P) to ensure that appropriate assessment procedures are used.

(z)

Environmental evaluation.

An analysis, sufficient to meet the requirements of the National Environmental Policy Act, and as outlined in subpart G of this part, of the potential impacts on the natural and human environments, including sufficient information that complies with all applicable Federal, tribal, and State requirements for the protection of the environment.

(aa)

Aids to navigation.

(1) For each proposed aid to navigation, the proposed position of the aid, described by latitude and longitude coordinates to the nearest second or tenth of a second, as determined from the largest scale chart of the area in which the aid is to be located. Specify latitude and longitude to a level obtained by visual interpolation between the finest graduation of the latitude and longitude scales on the chart.

(2) For each proposed obstruction light and rotating lit beacon:

(i) Color;

(ii) Characteristic;

(iii) Effective intensity;

(iv) Height above water; and

(v) General description of the illumination apparatus.

(3) For each proposed sound signal on a structure, a general description of the apparatus.

(4) For each proposed buoy:

(i) Shape;

(ii) Color;

(iii) Number or letter;

(iv) Depth of water in which located; and

(v) General description of any light and/or sound signal apparatus on the buoy.

(5) For the proposed radar beacon, or RACON, height above water and a general description of the apparatus.

(bb)

National Pollutant Discharge Elimination System (NPDES).

A copy of the NPDES Application for Permit to Discharge Short Form D, for applying for a discharge permit from the Environmental Protection Agency (EPA) and any accompanying studies and analyses. If complete information is not available by the time MARAD must either approve or deny the application for a designated application area under 33 U.S.C. 1504(i)(1), the license for the deepwater port is conditioned upon the applicant receiving the required discharge permit from the EPA before the start of any discharge requiring such a permit. The issuance of the permit demonstrates that all potential water discharges have been satisfactorily analyzed and water quality control measures implemented to mitigate discharges to meet NPDES.

(cc)

Structures' placement and the discharge of dredged or fill material.

The information required to obtain a Department of the Army permit for placement of structures and the discharge of dredged or fill material.

(dd)

Additional Federal authorizations.

All other applications for Federal authorizations not listed elsewhere in this subpart that are required for ownership, construction, and operation of a deepwater port.

(ee)

Sworn statement.

A statement that the information in the application is true must be placed at the end of the application, sworn to before a notary public, and signed by a responsible applicant official.

§ 148.107

What additional information may be required?

(a) The Commandant (G-P), in coordination with MARAD, may require the applicant or the applicant's affiliates to file, as a supplement to the application, any analysis, explanation, or other information he or she deems necessary.

(b) The Commandant (G-P) may require the applicant or the applicant's affiliates to make available for Coast Guard examination, under oath or for interview, persons having, or believed to have, necessary information.

(c) The Commandant (G-P) may set a deadline for receiving the information.

(1) If the applicant states that the required information is not yet available but will be at a later date, the Commandant (G-P) may specify a later deadline.

(2) If a requirement is not met by a deadline fixed under this paragraph, the Commandant (G-P), in coordination with MARAD, may determine whether compliance with the requirement is important to processing the application within the time prescribed by the Act.

(3) If the requirement is important to processing the application within the time limit set by the Act, the Commandant (G-P) may recommend to the Maritime Administrator that he or she either not approve the application or suspend it indefinitely. The deadline for the Administrator's review under the Act is extended for a period of time equal to the time of the suspension.

§ 148.108

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

(a) Any Federal or State agency or other interested person may recommend that the applicant provide information that is not specified by this subchapter.

(b) Recommendations must state briefly why the information is needed.

(c) The Commandant (G-P) must receive the request prior to the closing dates for the comment periods for scoping, and the draft or final environmental impact statement or environmental assessment. MARAD will consider the request before making a final decision on whether or not to approve the license application.

(d) The Commandant (G-P) will consider whether:

(1) The information requested is essential for processing the license application; and

(2) The time and effort required by the applicant in gathering the information will result in an undue delay in the application process.

(e) The Commandant (G-P) may discuss the recommendation with the recommending person and the applicant prior to issuing a determination.

§ 148.110

How do I prepare my application?

(a) Any person may confer with the Commandant (G-P) concerning requirements contained in this rule for the preparation of an application or the requirements of this subchapter.

(b) The applicant may incorporate, by clear and specific reference in the application:

(1) Standard reference material that the applicant relied on that is readily available to Federal and State agencies;

(2) Current information contained in previous applications or reports that the applicant has submitted to the application staff; or

(3) Current information contained in a tariff, report, or other document previously filed for public record with the Surface Transportation Board or the Securities and Exchange Commission, if:

(i) A certified true and complete copy of the document is attached to each copy of the application as required by § 148.115(a);

(ii) The date of filing and the document number are on the cover of the document; and

(iii) Any verification or certification required for the original filing, other than from auditors or other independent persons, is dated no earlier than 30 days before the date of the application.

§ 148.115

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

Send the following copies of the application:

(a) Two printed copies and three electronic versions to the Commandant (G-PSO), U.S. Coast Guard, 2100 Second Street SW., Washington, DC 20593-0001.

(b) Two printed copies and two electronic versions to the MARAD Administrator, 400 7th Street SW., Washington, DC 20590.

(c) One copy to the U.S. Army Corps of Engineers District Office having jurisdiction over the proposed port. For the address, see

http://www.usace.army.mil/.

(d) Additional printed and electronic copies for distribution to Federal, tribal, and State regulatory agencies involved in reviewing the application in accordance with the needs of each agency.

§ 148.125

What are the application fees?

(a) The applicant must submit a nonrefundable application fee of $350,000 with each application for a license. If additional information is necessary to make an application complete, no additional application fee is required.

(b) The costs incurred by the Federal Government in processing an application will be charged to the application fee until it is exhausted. If the fee is exhausted and the Federal Government incurs further processing costs, the applicant will be charged for the additional costs. The Commandant (G-P) will periodically advise the applicant of the status of expenses incurred during the application process.

(c) Additional costs attributable to processing a deepwater port license application and post-license activities, for example the engineering plan review or development of the final operations manual, are due when they are assessed, and must be paid by the applicant prior to commencing operation of the deepwater port.

(d) Application fees and additional costs assessed under this section must be made payable to the United States Treasury, and submitted to the Commandant (G-P).

Subpart C—Processing Applications

General

§ 148.200

What is the purpose of this subpart?

This subpart prescribes the requirements for processing an application for a deepwater port license.

It includes the procedures for:

(a) Maintaining the docket;

(b) Designating adjacent coastal states;

(c) Holding informal and formal public hearings; and

(d) Approving or denying an application.

§ 148.205

How are documents related to the application maintained?

(a) The Commandant (G-P) maintains the docket for each application.

(1) The docket contains a copy of all documents filed or issued as part of the application process.

(2) Recommendations submitted by Federal departments and agencies under 33 U.S.C. 1504(e)(2) are docketed when they are received.

(3) Copies of applicable National Environmental Policy Act documents prepared under 33 U.S.C. 1504(f) are docketed when they are sent to the Environmental Protection Agency.

(b) For a document designated as protected from disclosure under 33 U.S.C. 1513(b), the Commandant (G-P):

(1) Prevents the information in the document from being disclosed, unless the Commandant (G-P) states that the disclosure is not inconsistent with 33 U.S.C. 1513(b); and

(2) Keeps a record of all individuals who have a copy of the document.

§ 148.207

How and where may I view docketed documents?

(a) All material in a docket under § 148.205 is available to the public for inspection and copying at Commandant (G-P) at the address under “Commandant (G-P)” in § 148.5, except for:

(1) Contracts under 33 U.S.C. 1504(c)(2)(B) for the construction or operation of a deepwater port; and

(2) Material designated under paragraph (b) of this section as a trade secret, or commercial or financial information that is claimed to be privileged or confidential.

(b) A person submitting material that contains either a trade secret or commercial or financial information under paragraph (a)(2) of this section must designate those portions of the material that are privileged or confidential. Section 148.221 contains procedures for objecting to these claims.

(c) Docketed material for each deepwater port project is also available to the public electronically at the Department of Transportation Docket Management System Web site at

http://www.dot.dms.gov.

The projects are also listed by name and the assigned docket number at the G-PSO-5 Web site:

http://www.uscg.mil/hq/g-m/mso/mso5.htm.

§ 148.209

How is the application processed?

The Commandant (G-P), in cooperation with the Maritime Administrator, processes each application and the Maritime Administration publishes the notice of application under 33 U.S.C. 1504(c) in the

Federal Register

. Upon publication of a notice of application, the Commandant (G-P) ensures delivery of copies of the application to:

(a) Each Federal agency with jurisdiction over any aspect of ownership, construction, or operation of deepwater ports. A complete listing of the Federal agencies involved with deepwater port licensing is outlined in the Deepwater Port Interagency MOU available at the following hyperlink:

http://www.uscg.mil/hq/G-M/mso/docs/dwp_white_house_task_force_energy_streamlining.pdf.

(b) Each adjacent coastal State, including relevant State and tribal agencies in those States.

§ 148.211

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

(a) If at any time before the Secretary approves or denies an application, the information in it changes or becomes incomplete, the applicant must promptly submit the changes or additional information in the manner set forth in § 148.115 of this part.

(b) The Coast Guard may determine that the change or required information is of such magnitude that it warrants submission of a complete revised application.

§ 148.213

How do I withdraw my application?

The applicant may withdraw an application at any time before the proceeding is terminated by delivering or mailing notice of withdrawal to the Commandant (G-P) for docketing.

§ 148.215

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

(a) If a State port will be directly connected by pipeline to a proposed deepwater port, and has existing plans for a deep draft channel and harbor, a representative of the port may request a determination under 33 U.S.C. 1503(d).

(b) The request must be sent, in writing, to the Commandant (G-P) within 30 days after the date that the notice of application for the deepwater port is published in the

Federal Register

.

(c) The request must contain:

(1) A signature of the highest official of the port submitting the request;

(2) A copy of the existing plans for the construction of a deep draft channel and harbor;

(3) Certification that the port has an active study by the Secretary of the Army for the construction of a deep draft channel and harbor, or that the port has an application pending for a permit under 33 U.S.C. 403 for the construction;

(4) Any available documentation on:

(i) Initial costs, by phases if development is staged, for the proposed onshore project, including dredging, ship terminal, and attendant facilities;

(ii) Estimated annual operating expenses, by phases if development is staged, including labor, for 30 years for all elements of the project;

(iii) Estimated completion time for all elements of the project;

(iv) Estimated vessel traffic volume, and the volume and variety of the tonnage;

(v) Potential traffic congestion conditions in the port, and the port's ability to control vessel traffic as a result of the proposed dredging project;

(vi) Estimated economic benefits of the project, including:

(A) Economic contribution to the local and regional area;

(B) Induced industrial development;

(C) Increased employment; and

(D) Increases in tax revenues;

(vii) Environmental and social impacts of the project on the local and regional community; and

(viii) An estimate of the economic impact that the deepwater port license will have on the proposed project.

(d) A statement whether the port seeks a determination that the port best serves the national interest.

§ 148.217

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

(a) Adjacent coastal States are named in the notice of application published in the

Federal Register

. However, a State not named as an adjacent coastal State in the notice may request to be designated as one if the environmental risks to it are equal to or greater than the risks posed to a State directly connected by pipeline to the proposed deepwater port.

(b) The request must:

(1) Be submitted in writing to the Commandant (G-P) within 14 days after the date of publication of the notice of application in the

Federal Register

;

(2) Be signed by the Governor of the State;

(3) List the facts and any available documentation or analyses concerning the risk of damage to the coastal environment of the State; and

(4) Explain why the State believes the risk of damage to its coastal environment is equal to or greater than the risk to a State connected by a pipeline to the proposed deepwater port.

(c) Upon receipt of a request, the Commandant (G-P) will send a copy of the State's request to the Administrator of the National Oceanic and Atmospheric Administration (NOAA) and ask for the Administrator's recommendations within an amount of time that will allow the Commandant (G-P) and the MARAD Administrator 45 days from receipt of the request to determine the matter.

(d) If after receiving NOAA's recommendations the Commandant (G-P), in concurrence with MARAD Administrator, determines that the State should be considered an adjacent coastal State, the Commandant (G-P), in concurrence with the MARAD Administrator, will so designate it. If the Commandant (G-P), in concurrence with the MARAD Administrator, denies the request, he or she will notify the requesting State's Governor of the denial.

§ 148.221

How do I claim, or object to a claim, that required information is privileged?

(a) Any person may claim that specific information required pursuant to this part should be withheld because it is privileged, and any person can object to that claim.

(b) Requests or objections must be submitted to the Commandant (G-P) in writing, with sufficient specificity to identify the information at issue, and to show why it should or should not be considered privileged.

(c) The Commandant (G-P) determines whether to grant or deny a claim of privilege.

(d) Submission of a claim stays any deadline for providing the information at issue, unless the claim is made pursuant to the protection for confidential information that is provided by 33 U.S.C. 1513(b), in which case deadlines are not stayed. The Commandant (G-P) may also determine that the information at issue is so material that processing of the application must be suspended pending the determination of the claim.

Public Hearings or Meetings

§ 148.222

When must public hearings or meetings be held?

(a) Before a license is issued, at least one public license hearing under 33 U.S.C. 1504(g) must be held in each adjacent coastal State. Other Federal statutes and regulations may impose additional requirements for public hearings or meetings, and if not otherwise prohibited, a hearing under this paragraph may be consolidated

with any such additional hearing or meeting.

(b) The Commandant (G-P) or the MARAD Administrator will publish a notice of public hearings or meetings in the

Federal Register

, and will mail or deliver a copy of the notice to the applicant, to each adjacent coastal State, and to all who request a copy.

(c) Anyone may attend a public hearing or meeting and provide relevant oral or written information. The presiding officer may limit the time for providing oral information.

§ 148.227

How is a public hearing or meeting reported?

(a) After completion of a public hearing or meeting, the presiding officer forwards a report on the hearing or meeting to the Commandant (G-P) for docketing.

(b) The report must contain at least:

(1) An overview of the factual issues addressed;

(2) A transcript or recording of the hearing or meeting; and

(3) A copy of all material submitted to the presiding officer.

(c) During the hearing or meeting, the presiding officer announces the information that the report must contain.

Formal Hearings

§ 148.228

What if a formal evidentiary hearing is necessary?

(a) After all public meetings under § 148.222 of this part are concluded, the Commandant (G-PSO), in coordination with the MARAD Administrator, will consider whether there are one or more specific and material factual issues that may be resolved by a formal evidentiary hearing.

(b) If the Commandant (G-PSO), in coordination with the MARAD Administrator, determines that one or more issues under paragraph (a) of this section exist, the Coast Guard will hold at least one formal evidentiary hearing under 5 U.S.C. 554 in the District of Columbia.

(c) The Commandant (G-PSO) files a request for assignment of an administrative law judge (ALJ) with the ALJ Docketing Center. The Chief ALJ designates an ALJ or other person to conduct the hearing.

(d) The recommended findings and the record developed in a hearing under paragraph (b) of this section are considered by the MARAD Administrator in deciding whether to approve or deny a license.

§ 148.230

How is notice of a formal hearing given?

(a) The Commandant (G-P) publishes a notice of the hearing in the

Federal Register

and sends a notice of the hearing to the applicant, to each adjacent coastal State, and to each person who requests such a notice.

(b) The notice of the hearing includes the applicant's name, the name of the ALJ assigned to conduct the hearing, a list of the factual issues to be resolved, the address where documents are to be filed, and the address where a copy of the rules of practice, procedure, and evidence to be used at the hearing is available.

§ 148.232

What are the rules for a formal hearing?

(a) The Commandant (G-P) determines the rules for each formal hearing. Unless otherwise specified in this part, the Commandant (G-P) applies the rules of practice, procedure, and evidence in part 20 of this chapter.

(b) The Commandant (G-P) sends a written copy of the procedure to the applicant, each person intervening in the proceedings, and each person who requests a copy.

§ 148.234

What are the limits of an Administrative Law Judge (ALJ)'s jurisdiction?

(a) An ALJ's jurisdiction begins upon assignment to a proceeding.

(b) An ALJ's jurisdiction ends after the recommended findings are filed with the Commandant (G-P) or immediately after the ALJ issues a notice of withdrawal from the proceeding.

§ 148.236

What authority does an Administrative Law Judge (ALJ) have?

When assigned to a formal hearing, an ALJ may:

(a) Administer oaths and affirmations;

(b) Issue subpoenas;

(c) Issue rules of procedure for written evidence;

(d) Rule on offers of proof and receive evidence;

(e) Examine witnesses;

(f) Rule on motions of the parties;

(g) Suspend or bar an attorney from representing a person in the proceeding for unsuitable conduct;

(h) Exclude any person for disruptive behavior during the hearing;

(i) Set the hearing schedule;

(j) Certify questions to the Commandant (G-P);

(k) Proceed with a scheduled session of the hearing in the absence of a party who failed to appear;

(l) Extend or shorten a non-statutorily imposed deadline under this subpart within the 240-day time limit for the completion of public hearings in 33 U.S.C. 1504(g);

(m) Set deadlines not specified in this subpart or the Deepwater Ports Act; and

(n) Take any other action authorized by or consistent with this subpart, the Deepwater Ports Act, or 5 U.S.C. 551-559.

§ 148.238

Who are the parties to a formal hearing?

The parties to a formal hearing are:

(a) The applicant;

(b) The Commandant (G-P); and

(c) Any person intervening in the proceedings.

§ 148.240

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

(a) Any person or adjacent coastal State may intervene in a formal hearing.

(b) A person must file a petition of intervention within 10 days of notice that the formal hearing is issued. The petition must:

(1) Be addressed to the

Administrative Law Judge

(ALJ) Docketing Center;

(2) Identify the issues and the petitioner's interest in those issues; and

(3) Designate the name and address of a person who can be served if the petition is granted.

(c) An adjacent coastal State need only file a notice of intervention with the ALJ Docketing Center.

(d) The ALJ has the authority to limit the scope and period of intervention during the proceeding.

(e) If the ALJ denies a petition of intervention, the petitioner may file a notice of appeal with the ALJ Docketing Center within 7 days of the denial.

(1) A brief may be submitted with the notice of appeal.

(2) Parties who wish to file a brief in support of or against the notice of appeal may do so within 7 days of filing the notice.

(f) The Commandant (G-P) will rule on the appeal. The ALJ does not have to delay the proceedings for intervention appeals.

§ 148.242

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

(a) A person who is not a party to a formal hearing may present evidence at the hearing if he or she sends a petition to present evidence to the ALJ Docketing Center before the beginning of the formal hearing. The petition must describe the evidence that the person will present and show its relevance to the issues listed in the notice of formal hearing.

(b) If a petition is granted, the ruling will specify which evidence is approved to be presented at the hearing.

§ 148.244

Who must represent the parties at a formal hearing?

(a) All organizations that are parties to the proceeding must be represented by

an attorney. Individuals may represent themselves.

(b) Any attorney representing a party to the proceeding must file a notice of appearance according to § 20.301(b) of this chapter.

(c) Each attorney must be in good standing and licensed to practice before a court of the United States or the highest court of any State, territory, or possession of the United States.

§ 148.246

When is a document considered filed and where should I file it?

(a) If a document to be filed is submitted by mail, it is considered filed on the date it is postmarked. If a document is submitted by hand delivery or electronically, it is considered filed on the date received by the clerk.

(b) File all documents and other materials related to an administrative proceeding at the U.S. Coast Guard Administrative Law Center, Attention: Hearing Docket Clerk, room 412, 40 South Gay Street, Baltimore, MD, 21201-4022.

§ 148.248

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

Any document that does not satisfy the requirements in §§ 20.303 and 20.304 of this chapter will be returned to the person who submitted it with a statement of the reasons for denial.

§ 148.250

Who must be served before a document is filed?

Before a document may be filed by any party, it first must be served upon:

(a) All other parties; and

(b) The Commandant (G-P).

§ 148.252

What is the procedure for serving a subpoena?

(a) A party may submit a request for a subpoena to the Administrative Law Judge (ALJ). The request must show the relevance and scope of the evidence sought.

(b) Requests should be submitted sufficiently in advance of the hearing so that exhibits and witnesses can be included in the lists required by § 20.601 of this chapter, but may be submitted later and before the end of the hearing, if good cause is shown for the late submission.

(c) A request for a subpoena must be submitted to the ALJ.

(d) A proposed subpoena, such as the form in

http://cgweb.comdt.uscg.mil/g-cj/subpoena.doc,

must be submitted with the request. If you do not use this form, the proposed subpoena must contain:

(1) The docket number of the proceedings;

(2) The captions “Department of Homeland Security,” “Coast Guard,” and “Licensing of deepwater port for coastal waters off (insert name of the coastal State closest to the proposed deepwater port and the docket number of the proceeding)”;

(3) The name and the address of the office of the ALJ;

(4) For a subpoena giving testimony, a statement commanding the person to whom the subpoena is directed to attend the formal hearing and give testimony;

(5) For a subpoena producing documentary evidence, a statement commanding the person to produce designated documents, books, papers, or other tangible things at a designated time or place; and

(6) An explanation of the procedure in § 20.309(d) of this chapter and paragraph (h) of this section for quashing a subpoena.

(e) The procedure for serving a subpoena must follow Rule 45 of the Federal Rules of Civil Procedure, unless the ALJ authorizes another procedure.

(f) The witness fees for a subpoenaed witness are the same as the fees for witnesses subpoenaed in U.S. District Courts. The person requesting the subpoena must pay these fees.

(g) When serving a subpoena, a party must include witness fees in the form of a check to the individual or organization for one day plus mileage, or, in the case of a government-issued subpoena, a form SF-1157 so a witness may receive fees and mileage reimbursement.

(h) Any person served with a subpoena has 10 days from the time of service to move to quash the subpoena.

(i) If a person does not comply with a subpoena, the ALJ decides whether judicial enforcement of the subpoena is necessary. If the ALJ decides it is, the Commandant (G-P) reviews this decision.

§ 148.254

How is a hearing transcript prepared?

(a) Under the supervision of the Administrative Law Judge (ALJ), the reporter prepares a verbatim transcript of the hearing. Nothing may be deleted from the transcript, unless ordered by the ALJ and noted in the transcript.

(b) After a formal hearing is completed, the ALJ certifies and forwards the record, including the transcript, to the clerk to be placed into the docket.

(c) At any time within the 20 days after the record is docketed, the ALJ may make corrections to the certified transcript. When corrections are filed, they are attached as appendices.

(d) Any motion to correct the record must be submitted within 10 days after the record is docketed.

§ 148.256

What happens at the conclusion of a formal hearing?

After closing the record of a formal hearing, the Administrative Law Judge (ALJ) prepares a recommended finding on the issues that were the subject of the hearing. The ALJ submits that finding to the Commandant (G-P).

Approval or Denial of the Application

§ 148.276

When must the application be approved or denied?

(a) In 33 U.S.C. 1504, the Deepwater Port Act provides strict timelines for action on a license application, which, if closely observed, can lead to action in just under 1 year. The Coast Guard, in concurrence with MARAD, can suspend the process if an applicant fails to provide timely information or requests additional time to comply with a request.

(b) The Coast Guard must conduct public hearings in each adjacent Coastal State within 240 days of publishing the notice of receipt of a deepwater port license application.

(c) MARAD issues a record of decision (ROD) approving or denying a license application within 90 days after the final public hearing. Actual issuance of a license may not take place until certain conditions imposed by the ROD have been met. Those conditions may include how the applicant must address design, construction, installation, testing, operations, and decommissioning of the port, or meet the requirements of other agencies.

§ 148.277

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

(a) Under § 148.209, Federal agencies and adjacent coastal States are sent copies of the application. The agencies and States are encouraged to begin submitting their comments at that time.

(b) To be considered, comments from Federal agencies and adjacent coastal States must be received by the Commandant (G-P) within 45 days after the close of the public hearing period specified in § 148.276(b). Separate comment periods will apply to the review of documents created during the National Environmental Policy Act process. Both the Commandant (G-P) and MARAD review the comments received.

(c) Comments should identify problems, if any, and suggest possible solutions.

§ 148.279

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

The criteria for approving or denying a license application appear in 33 U.S.C. 1503.

§ 148.281

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

(a) When more than one application is submitted for a deepwater port in the same application area under 33 U.S.C. 1504(d), only one application is approved. Except as provided in paragraph (b) of this section, applicants receive priority in the following order:

(1) An adjacent coastal State or combination of States, political subdivision of the State, or an agency or instrumentality, including a wholly owned corporation of the State;

(2) A person that is:

(i) Not engaged in producing, refining, or marketing oil;

(ii) Not an affiliate of a person engaged in producing, refining, or marketing oil; or

(iii) Not an affiliate of a person engaged in producing, refining, or marketing oil; and then

(3) Any other applicant.

(b) MARAD may also approve one of the proposed deepwater ports if it determines that that port will best serve the national interest. In making this determination, MARAD considers:

(1) The degree to which each deepwater port will affect the environment, as determined under the review criteria in subpart G to this part;

(2) The differences between the anticipated completion dates of the deepwater ports; and

(3) The differences in costs for construction and operation of the ports that would be passed on to consumers of oil.

(c) This section does not apply to applications for natural gas deepwater ports.

§ 148.283

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

The Commandant (G-P) recommends to MARAD that the application process be suspended before the application is approved or denied if:

(a) All applications are withdrawn before MARAD approves one of them; or

(b) There is only one application; it is incomplete, and the applicant does not respond to a request by the Commandant (G-P) for further information, as per § 148.107.

Subpart D—Licenses

§ 148.300

What does this subpart concern?

This subpart concerns the license for a deepwater port and the procedures for transferring, amending, suspending, reinstating, revoking, and enforcing a license.

§ 148.305

What is included in a deepwater port license?

A deepwater port license contains information about the licensee and the port, and any conditions of its own or of another agency that may be described by MARAD in the license. Licenses are issued in conformance with the Deepwater Ports Act of 1974, as amended, and with rules and policies of MARAD that implement that Act.

§ 148.307

Who may consult with the Commandant (G-P) and the MARAD Administrator on developing the proposed conditions of a license?

Federal agencies, the adjacent coastal States, and the owner of the deepwater port may consult with the Commandant (G-P) and the MARAD Administrator on the conditions of the license being developed under 33 U.S.C. 1503(e).

§ 148.310

How long does a license last?

Each license remains in effect indefinitely subject to the following:

(a) If it is suspended or revoked by MARAD;

(b) If it is surrendered by the owner; or

(c) As otherwise provided by condition of the license.

§ 148.315

How is a license amended, transferred, or reinstated?

(a) MARAD may amend, transfer, or reinstate a license if it finds that the amendment, transfer, or reinstatement is consistent with the requirements of the Act and this subchapter.

(b) The owner must submit a request for an amendment, transfer, or reinstatement to the Commandant (G-P) or the MARAD Administrator.

§ 148.320

How is a license enforced, suspended, or revoked?

MARAD may enforce, suspend, or revoke a license under 33 U.S.C. 1507(c).

§ 148.325

How soon after port decommissioning must the licensee initiate removal?

Within 2 years of port decommissioning, the licensee must initiate removal procedures. The Commandant (G-P) will advise and coordinate with appropriate Federal agencies and the States concerning activities covered by this section.

Subpart E—Site Evaluation and Pre-Construction Testing

§ 148.400

What does this subpart do?

(a) This subpart prescribes requirements under 33 U.S.C. 1504(b) for the activities that are involved in site evaluation and pre-construction testing at potential locations for deepwater ports and that may:

(1) Adversely affect the environment;

(2) Interfere with authorized uses of the OCS; or

(3) Pose a threat to human health and welfare.

(b) For the purpose of this subpart, “site evaluation and pre-construction testing” means studies performed at potential deepwater port locations, including:

(1) Preliminary studies to determine the feasibility of a site;

(2) Detailed studies of the topographic and geologic structure of the ocean bottom to determine its ability to support offshore structures and other equipment; and

(3) Studies done for the preparation of the environmental analysis required under § 148.105.

§ 148.405

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

(a) Any person who wants to conduct site evaluation and pre-construction testing at a potential site for a deepwater port must submit a written notice to the Commandant (G-P) at least 30 days before the beginning of the evaluation or testing. The Commandant (G-P) advises and coordinates with appropriate Federal agencies and the States concerning activities covered by this subpart.

(b) The written notice must include the following:

(1) The names of all parties participating in the site evaluation and pre-construction testing;

(2) The type of activities and the way they will be conducted;

(3) Charts showing where the activities will be conducted and the locations of all offshore structures, including pipelines and cables, in or near the proposed area;

(4) The specific purpose for the activities;

(5) The dates when the activities will begin and end;

(6) The available data on the environmental consequences of the activities;

(7) A preliminary report, based on existing data, of the historical and archeological significance of the area where the proposed activities are to take place. The report must include contacts made with any appropriate State liaison officers for historic preservation; and

(8) Additional information, if necessary, in individual cases.

(c) For the following activities, the notice only needs the information required in paragraphs (b)(1), (b)(2), and

(b)(5) of this section, as well as a general indication of the proposed location and purpose of the activities, including:

(1) Gravity and magneto-metric measurements;

(2) Bottom and sub-bottom acoustic profiling, within specified limits, without the use of explosives;

(3) Sediment sampling of a limited nature using either core or grab samplers, and the specified diameter and depth to which the sampling would penetrate if geological profiles indicate no discontinuities that may have archeological significance;

(4) Water and biotic sampling if the sampling does not adversely affect shellfish beds, marine mammals, or an endangered species, or if the sampling is permitted by another Federal agency;

(5) Meteorological measurements, including the setting of instruments;

(6) Hydrographic and oceanographic measurements, including the setting of instruments; and

(7) Small diameter core sampling to determine foundation conditions.

(d) A separate written notice is required for each site.

§ 148.410

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

(a) No person may conduct site evaluation and pre-construction testing unless it complies with this subpart and other applicable laws.

(b) Measures must be taken to prevent or minimize the effect of activities under § 148.400(a).

§ 148.415

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

(a) When conducting site evaluation or pre-construction testing, the following must be immediately reported by any means to the Commandant (G-P):

(1) Any evidence of objects of cultural, historical, or archeological significance;

(2) Any adverse effect on the environment;

(3) Any interference with authorized uses of the OCS;

(4) Any threat to human health and welfare; and

(5) Any adverse effect on an object of cultural, historical, or archeological significance.

(b) Within 120 days after the site evaluation or pre-construction testing, a final written report must be submitted to the Commandant (G-P) that contains:

(1) A narrative description of the activities performed;

(2) A chart, map, or plat of the area where the activities occurred;

(3) The dates when the activities were performed;

(4) Information on the adverse effects of items reported under paragraph (a) of this section;

(5) Data on the historical or archeological significance of the area where the activities were conducted, including a report by an underwater archeologist; and

(6) Any additional information required by the Commandant (G-P) on a case-by-case basis.

§ 148.420

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

(a) The Commandant (G-P) may order, either in writing or orally, with written confirmation, the prohibition or immediate suspension of any activity related to site evaluation or pre-construction testing when the activity threatens to harm:

(1) Human life;

(2) Biota;

(3) Property;

(4) Cultural resources;

(5) Any valuable mineral deposits; or

(6) The environment.

(b) The Commandant (G-P) will consult with the applicant on measures to remove the cause for suspension.

(c) The Commandant (G-P) may lift a suspension after the applicant assures the Commandant (G-P) that the activity will no longer cause the threat on which the suspension was based.

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

§ 148.500

What does this subpart do?

This subpart provides procedures for requesting an exemption from a requirement in this subchapter. The Commandant (G-P) and MARAD coordinate in evaluating requests for exemption from the requirements in this subchapter.

§ 148.505

How do I apply for an exemption?

(a) Any person required to comply with a requirement in this subchapter may submit a petition for exemption from that requirement.

(b) The petition must be submitted in writing to the Commandant (G-P) and the MARAD Administrator.

(c) The Commandant (G-P) may require the petition to provide an alternative to the requirement.

§ 148.510

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

If the petition for exemption concerns an adjacent coastal State, the Commandant (G-P) forwards the petition to the Governor of the State for the Governor's recommendation.

§ 148.515

When is an exemption allowed?

The Commandant (G-P) may recommend that MARAD allow an exemption if he or she determines that:

(a) Compliance with the requirement would be contrary to public interest;

(b) Compliance with the requirement would not enhance safety or the health of the environment;

(c) Compliance with the requirement is not practical because of local conditions or because the materials or personnel needed for compliance are unavailable;

(d) National security or national economy justifies a departure from the rules; or

(e) The alternative, if any, proposed in the petition would:

(1) Ensure comparable or greater safety, protection of the environment, and quality of deepwater port construction, maintenance, and operation; and

(2) Be consistent with recognized principles of international law.

§ 148.600

What is the limit of financial liability?

The financial limit for liability for deepwater ports is set in accordance with 33 U.S.C. 2704.

§ 148.605

How is the limit of liability determined?

(a) The Coast Guard may lower the $350,000,000 limit of liability for deepwater ports set by 33 U.S.C. 2704(a)(4), pursuant to paragraph (d) of that section, particularly for natural gas deepwater ports that will store or use oil in much smaller amounts than an oil deepwater port.

(b) Requests to adjust the limit of liability for a deepwater port must be submitted to the Commandant (G-P). Adjustments are established by a rulemaking with public notice and comment that may take place concurrently with the processing of the deepwater port license application.

Subpart G—Environmental Review Criteria for Deepwater Ports

§ 148.700

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

(a) Nothing in this subpart supersedes any Federal, tribal, or State requirements for the protection of the environment.

(b) The applicant must prepare and submit applications to each respective agency that requires a permit or license to operate the port.

(c) A list of Federal and State agencies that require certification includes, but is not limited to:

(1) The Environmental Protection Agency, for Clean Air Act and Clean Water Act permits;

(2) The Pipeline and Hazardous Materials Safety Administration, Office of Pipeline Safety; and

(3) The Mineral Management Service (MMS); or

(4) Both the Office of Pipeline Safety and MMS for pipeline approvals, and the appropriate State environmental agency or permitting agency.

§ 148.702

How were the environmental review criteria developed?

Under 33 U.S.C. 1505, the Commandant (G-P) must establish environmental review criteria for use in evaluating a proposed deepwater port. In developing these criteria, the Coast Guard considers the requirements for compliance with Federal and State mandates for the protection of the environment contained in, but not limited to, such guidance as published by:

(a) The Council on Environmental Quality in 40 CFR parts 1500-1508;

(b) Department of Homeland Security Directive 5100.1, Environmental Planning Program; and

(c) The Coast Guard in Commandant Instruction M16475.1D, National Environmental Policy Act Implementing Procedures and Policy for Considering Environmental Impacts.

§ 148.705

What is determined by the environmental evaluation?

(a) The environmental criteria to be used in evaluating a license application are established by general consensus of expertise, scientific opinion, public interest, and institutional requirements, such as laws and regulations established for the protection of the environment. Criteria that may be established in future environmental regulations or other requirements to protect the environment will also be used.

(b) The environmental criteria to be used in evaluating a license application are applied to all relevant aspects of:

(1) The fabrication, construction, operation, and decommissioning phases of a deepwater port;

(2) The operations of the vessels that serve the port;

(3) The port's servicing and support activities;

(4) Shore-based construction and fabrication sites;

(5) Shoreside supporting facilities, if appropriate, for the proposed location; and

(6) The No Action alternative and other reasonable alternatives.

(c) The criteria are also applied in a manner that takes into account the cumulative effects of other reasonably foreseeable actions as outlined in § 148.707.

§ 148.707

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

(a) The license application will be reviewed for the deepwater port's effects on the environment and for the environment's effects on the port and any of its shoreside support facilities.

(b) The environmental evaluation will be applied to the phases of construction, operation, and decommissioning of the proposed location, and at least one alternative site. The evaluation will determine:

(1) The effect on the environment, including but not limited to:

(i) Impacts on endangered species;

(ii) Essential fish habitat;

(iii) Marine sanctuaries;

(iv) Archaeological, cultural and historic sites;

(v) Water and air;

(vi) Coastal zone management;

(vii) Coastal barrier resources; and

(viii) Wetlands and flood plains.

(2) The effect on oceanographic currents and wave patterns;

(3) The potential risks to a deepwater port from waves, winds, weather, and geological conditions, and the steps that can be taken to protect against or minimize these dangers; and

(4) The effect on human health and welfare, including socioeconomic impacts, environmental justice and protection of children from environmental health and safety risks.

§ 148.708

Must the applicant's proposal reflect potential regulations?

Although a regulation is of no effect until it has been officially promulgated, to minimize the subsequent impact that potential regulations may have on a licensee, an applicant can and should reflect reasonably foreseeable environmental regulations in planning, operating, and decommissioning a deepwater port.

§ 148.709

How are these criteria reviewed and revised?

The Commandant (G-P) periodically reviews and may revise these criteria. Reviews and revisions are conducted in accordance with § 148.700 of this subpart. The criteria established are consistent with the National Environmental Policy Act.

§ 148.710

What environmental conditions must be satisfied?

(a) MARAD may issue a license to construct a deepwater port under the Act, with or without conditions, if certain specified conditions are met. The relevant environmental considerations include, but are not limited to, the following:

(1) Construction and operation of the deepwater port that will be in the national interest and consistent with national security and other national policy goals and objectives, including energy sufficiency, environmental quality, protection from the threat of terrorist attack and other subversive activity against persons and property on the port and the vessels and crews calling at the port; and

(2) Under the environmental review criteria in § 148.707 of this subpart, the applicant has demonstrated that the deepwater port will be fabricated, constructed, operated, and decommissioned using the best available technology to prevent or minimize adverse impacts on the marine environment (33 U.S.C. 1503(c)(3), 1504(f) and 1505(a)(1)).

(b) Under 33 U.S.C. 1504(f), these criteria must be considered in the preparation of a single detailed environmental impact statement or environmental assessment for all timely applications covering a single application area. Additionally, 33 U.S.C. 1504(i)(3) specifies that if more than one application is submitted for an “application area,” as defined in 33 U.S.C. 1504(d)(2), the criteria must be used, among other factors, in determining whether any one proposed deepwater port for oil clearly best serves the national interest.

(c) In accordance with 40 CFR 1502.9, the Commandant (G-P) will prepare a supplement to a final environmental impact statement if there is significant new information or circumstances relevant to environmental concerns and bearing on the deepwater port and related activities affecting its location site, construction, operation or decommissioning.

§ 148.715

How is an environmental review conducted?

The environmental review of a proposed deepwater port and reasonable alternatives consists of Federal, tribal, State, and public review of the following two parts:

(a) An evaluation of the proposal's completeness of environmental information and quality of assessment, probable environmental impacts, and identification of procedures or technology that might mitigate probable adverse environmental impacts through avoiding, minimizing, rectifying, reducing, eliminating, or compensating for those impacts; and

(b) An evaluation of the effort made under the proposal to mitigate its probable environmental impacts. This evaluation will assess the applicant's consideration of the criteria in §§ 148.720 through 148.740 of this subpart.

§ 148.720

What are the siting criteria?

In accordance with § 148.715(b), the proposed and alternative sites for the deepwater port will be evaluated on the basis of how well each:

(a) Optimizes location to prevent or minimize detrimental environmental effects;

(b) Minimizes the space needed for safe and efficient operation;

(c) Locates offshore components in areas with stable sea bottom characteristics;

(d) Locates onshore components where stable foundations can be developed;

(e) Minimizes the potential for interference with its safe operation from existing offshore structures and activities;

(f) Minimizes the danger posed to safe navigation by surrounding water depths and currents;

(g) Avoids extensive dredging or removal of natural obstacles such as reefs;

(h) Minimizes the danger to the port, its components, and tankers calling at the port from storms, earthquakes, or other natural hazards;

(i) Maximizes the permitted use of existing work areas, facilities, and access routes;

(j) Minimizes the environmental impact of temporary work areas, facilities, and access routes;

(k) Maximizes the distance between the port, its components, and critical habitats including commercial and sport fisheries, threatened or endangered species habitats, wetlands, flood plains, coastal resources, marine management areas, and essential fish habitats;

(l) Minimizes the displacement of existing or potential mining, oil, or gas exploration and production or transportation uses;

(m) Takes advantage of areas already allocated for similar use, without overusing such areas;

(n) Avoids permanent interference with natural processes or features that are important to natural currents and wave patterns; and

(o) Avoids dredging in areas where sediments contain high levels of heavy metals, biocides, oil or other pollutants or hazardous materials, and in areas designated wetlands or other protected coastal resources.

§ 148.722

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

Each applicant must submit a proposed construction plan. It must incorporate best available technology and recommended industry practices as directed in § 148.730.

§ 148.725

What are the design, construction and operational criteria?

In accordance with § 148.720(b), the deepwater port proposal and reasonable alternatives will be evaluated on the basis of how well they:

(a) Reflect the use of best available technology in design, construction procedures, operations, and decommissioning;

(b) Include safeguards, backup systems, procedures, and response plans to minimize the possibility and consequences of pollution incidents such as spills and discharges, while permitting safe operation with appropriate safety margins under maximum operating loads and the most adverse operating conditions;

(c) Provide for safe, legal, and environmentally sound waste disposal, resource recovery, affected area reclamation, and enhanced use of spoil and waste;

(d) Avoid permanent interference with natural processes or features that are important to natural currents and wave patterns;

(e) Avoid groundwater drawdown or saltwater intrusion, and minimizes mixing salt, fresh, and brackish waters;

(f) Avoid disrupting natural sheet flow, water flow, and drainage patterns or systems;

(g) Avoid interference with biotic populations, especially breeding habitats or migration routes;

(h) Maximize use of existing facilities;

(i) Provide personnel trained in oil spill prevention at critical locations identified in the accident analysis;

(j) Provide personnel trained in oil spill mitigation; and

(k) Plan for safe and effective removal of the deepwater port in the event of its decommissioning.

§ 148.730

What are the land use and coastal zone management criteria?

In accordance with § 148.715(b), the deepwater port proposal and reasonable alternatives will be evaluated on the basis of how well they:

(a) Accord with existing and planned land use, including management of the coastal region, for which purpose the proposal must be accompanied by a consistency determination from appropriate State agencies for any designated adjacent coastal State;

(b) Adhere to proposed local and State master plans;

(c) Minimize the need for special exceptions, zoning variances, or non-conforming uses;

(d) Plan flood plain uses in ways that will minimize wetlands loss, flood damage, the need for federally-funded flood protection or flood relief, or any decrease in the public value of the flood plain as an environmental resource; and

(e) Avoid permanent alteration or harm to wetlands, and take positive steps to minimize adverse effects on wetlands.

§ 148.735

What are other critical criteria that must be evaluated?

In accordance with § 148.715(b), the deepwater port proposal and reasonable alternatives will be evaluated on the basis of how well they:

(a) Avoid detrimental effects on human health and safety;

(b) Pose no compromise to national security;

(c) Account for the historic, archeological, and cultural significance of the area, including any potential requirements for historical preservation;

(d) Minimize harmful impacts to minorities and children; and

(e) Plan for serious consideration of the proposal that offers the least potential for environmental harm to the region, or potential mitigation actions, when conflict exists between two or more proposed uses for a site.

§ 148.737

What environmental statutes must an applicant follow?

In constructing and operating a deepwater port, the port must comply with all applicable Federal, State, and tribal environmental statutes. For the purposes of information, a list of Federal environmental statutes and Executive Orders (E.O.s) that may apply includes but is not limited to: Abandoned Shipwreck Act (ASA), 43 U.S.C. 2102,

et. seq.

; American Indian Religious Freedom Act (AIRFA), 42 U.S.C. 1996,

et. seq.

; Antiquities Act, 16 U.S.C. 433,

et. seq.

; Archeological and Historic Preservation Act (AHPA), 16 U.S.C. 469; Archeological Resources Protection Act (AHPA), 16 U.S.C. 470 aa-ll,

et. seq.

; Architectural Barriers Act, 42 U.S.C. 4151,

et. seq.

; Clean Air Act (CAA), Pub. L. 95-95, 42 U.S.C. 7401,

et. seq.

; Clean Water Act of 1977 (CWA), Pub. L. 95-217, 33 U.S.C. 1251,

et. seq.

; Coastal Barrier Resources Act (CBR

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