Proposed Rule2026-22617
Deepwater Port Application Processing and Licensing
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 5, 2026
Issuing agencies
Transportation DepartmentMaritime Administration
Abstract
This document proposes procedures for the processing of applications for the licensing of deepwater ports. The proposed rule reflects the transfer of deepwater port license application processing management under the Deepwater Port Act from the United States Coast Guard (USCG) to MARAD. Pursuant to the National Defense Authorization Act for Fiscal Year 2026 (2026 NDAA), MARAD is the Federal lead agency for purposes of the National Environmental Policy Act of 1969 (NEPA) for all deepwater port license applications. USCG responsibility for authorities pertaining to design, construction, equipment, operation of deepwater ports, and navigational safety are not affected by the 2026 NDAA statutory changes, or this proposed rule and will continue to be administered by USCG.
Full Text
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<title>Federal Register, Volume 91 Issue 213 (Thursday, November 5, 2026)</title>
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[Federal Register Volume 91, Number 213 (Thursday, November 5, 2026)]
[Proposed Rules]
[Pages 69768-69788]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-22617]
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DEPARTMENT OF TRANSPORTATION
Maritime Administration
46 CFR Part 248
[Docket Number MARAD-2026-0728]
RIN 2133-AC01
Deepwater Port Application Processing and Licensing
AGENCY: Maritime Administration (MARAD), U.S. Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking and request for comments.
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SUMMARY: This document proposes procedures for the processing of
applications for the licensing of deepwater ports. The proposed rule
reflects the transfer of deepwater port license application processing
management under the Deepwater Port Act from the United States Coast
Guard (USCG) to MARAD. Pursuant to the National Defense Authorization
Act for Fiscal Year 2026 (2026 NDAA), MARAD is the Federal lead agency
for purposes of the National Environmental Policy Act of 1969 (NEPA)
for all deepwater port license applications. USCG responsibility for
authorities pertaining to design, construction, equipment, operation of
deepwater ports, and navigational safety are not affected by the 2026
NDAA statutory changes, or this proposed rule and will continue to be
administered by USCG.
DATES: Comments should be filed on or before January 4, 2027. Late
comments will be considered to the extent practicable.
ADDRESSES: You may submit comments identified by DOT Docket Number
MARAD-2026-0728 by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Search for the above DOT Docket Number and follow the instructions for
submitting comments.
<bullet> Mail/Hand-Delivery/Courier: Docket Management Facility,
U.S. Department of Transportation, 1200 New Jersey Avenue SE, Room W12-
140, Washington, DC 20590. If you would like to know that your comments
reached the facility, please enclose a stamped, self-addressed postcard
or envelope. The Docket Management Facility is open 9:00 a.m. to 5:00
p.m., Monday through Friday, except on Federal holidays.
Note: MARAD recommends that you include your name, mailing
address, email address, or telephone number in the body of your
document so that MARAD can contact you if we have questions
regarding your submission. If you submit your input by mail or hand-
delivery, it must be submitted in an unbound format, no larger than
8\1/2\ by 11 inches, single-sided, suitable for copying and
electronic filing. All submissions received should include the
agency name and ``DOT Docket Number'' or Regulation Identifier
Number (RIN) for this rulemaking.
Instructions: All comments received will be posted without change
to the docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal
information provided. For detailed instructions on submitting comments
and additional information on the rulemaking process, see the section
entitled Public Participation.
FOR FURTHER INFORMATION CONTACT: Efrain Lopez, Office of Deepwater Port
Licensing and Port Conveyance by phone at (202) 495-8867, email:
<a href="/cdn-cgi/l/email-protection#23464551424a4d0d4f4c53465963474c570d444c55"><span class="__cf_email__" data-cfemail="a5c0c3d7c4cccb8bc9cad5c0dfe5c1cad18bc2cad3">[email protected]</span></a>, or mail addressed to U.S. Department of
Transportation, Maritime Administration, MAR-530, 1200 New Jersey
Avenue SE, Washington, DC 20590. If you have questions about viewing
the docket, call the Docket Management Facility, telephone: (800) 647-
5527.
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
As required by 5 U.S.C. 553(b)(4), this document, including a
summary of the rule, and all comments may be viewed online through the
Federal eRulemaking portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. An
electronic copy of this document may also be downloaded by accessing
the Office of the Federal Register's home page at <a href="https://www.federalregister.gov">https://www.federalregister.gov</a>.
Privacy Act information. Anyone can search the electronic form of
all comments received into any of our dockets by the name of the
individual submitting the comment (or signing the comment, if submitted
on behalf of an association, business, labor union, or other entity).
For information on DOT's compliance with the Privacy Act, please visit
<a href="https://www.transportation.gov/privacy">https://www.transportation.gov/privacy</a>.
Background
MARAD and USCG have worked collaboratively to process Deepwater
Port applications since the agencies began jointly processing
applications in 1997. However, as required by the 2026 NDAA, MARAD and
USCG are realigning their review responsibilities, with MARAD leading
the application review process and conducting NEPA reviews of project
applications.
The Deepwater Port Act of 1974, as amended (DWPA, 33 U.S.C. 1501 et
seq.), establishes a licensing system for the ownership, construction,
and operation of oil and liquefied natural gas (LNG) deepwater ports
located beyond State seaward boundaries. Deepwater ports are fixed or
floating facilities used as terminals to transfer oil or natural gas to
or from shore via sub-sea pipeline to load or unload onto carrier
vessels for the import or export of oil or LNG.
The DWPA vests licensing authority in the Secretary of
Transportation. Shortly after the enactment of the statute, the
Secretary delegated the authority to process applications and issue
regulations to USCG, but reserved the authority to issue, transfer, and
amend deepwater port licenses (40 FR 43901, 43906 (Sept. 24, 1975)). As
a result, USCG issued DWPA implementing regulations at 33 CFR parts
148, 149, and 150 (40 FR 52339, 52540 (Nov. 10, 1975)). In 1997, the
Secretary delegated to MARAD the authority to work in coordination with
USCG to process deepwater port applications (62 FR 11382, 11383 (Mar.
12, 1997)). In 2003, the Secretary delegated to the Maritime
Administrator the Secretary's authority to issue, transfer, and amend
deepwater port licenses (68 FR 36496, 36497 (June 18, 2003)). This
delegation did not change the previous delegation of license processing
functions to USCG, and its authorities under the DWPA remained intact
upon its transfer to the Department of Homeland Security
[[Page 69769]]
under sections 888 and 1512(d) of the Homeland Security Act (Pub. L.
107-296, Sections 888 and 1512 (Nov. 25, 2002)). Section 7342 of
subtitle E of title LXXIII of the 2026 NDAA (Pub. L. 119-60 (Dec. 18,
2025)) amended the DWPA by designating MARAD as the Federal lead agency
for the purposes of NEPA compliance and directed the Commandant of the
USCG to transfer its authorities under 33 CFR part 148 to the Secretary
of Transportation and to retain responsibility for authorities
pertaining to the design, construction, equipment, and operation of
deepwater ports and navigational safety.
Discussion
Pursuant to Section 7342 of the 2026 NDAA, 33 CFR part 148
functions, as well as rulemaking authority, were transferred from the
USCG to the Secretary of Transportation. Executive Order (E.O.) 14154,
Unleashing American Energy, sets a national policy for the efficient
administration of licensing and permitting regimes that govern the
development of domestic energy resources and directs Federal agencies
to review their regulations and processes to promote this policy. Since
passage of the 2026 NDAA, MARAD and USCG have evaluated the deepwater
port licensing process considering decades of experience jointly
reviewing license applications and determined that license application
processing functions should be consolidated and realigned so that
MARAD, the license issuing agency, would lead the application review
process for deepwater port licenses. MARAD and the USCG have concluded
that the consolidation and realignment of processing functions would
help clarify and streamline the application review process, leading to
greater efficiency in the issuance of licensing decisions.
Under the proposed realignment, MARAD would serve as the lead
agency for conducting environmental review of applications under 33
U.S.C. 1504(f) and NEPA, manage application processing, and assume
rulemaking authority over application processing under 33 U.S.C.
1504(a). USCG would retain responsibility for authorities pertaining to
risk and consequence assessments (currently 33 CFR 148.105(y)) and
navigational safety, design, construction, equipment, and operation of
deepwater ports (33 CFR parts 149 and 150). To carry out this
realignment, MARAD proposes to adopt the provisions of 33 CFR part 148
pertaining to the application processing and environmental review
criteria as well as revisions to Part 148 proposed by USCG's Notice of
Proposed Rulemaking (2015 NPRM) published on April 9, 2015 (80 FR
19118), which were intended to clarify existing application
requirements.
MARAD conducts environmental reviews for deepwater port
applications consistent with the Supreme Court's decision in Seven
County Infrastructure Coalition v. Eagle County, Colorado and its
progeny.\1\ Consistent with the requirements of 42 U.S.C. 4336a(b), if
a proposed action will require action by more than one Federal agency,
MARAD and the cooperating agencies evaluate the proposal in a single
environmental document. MARAD proposes to add a new section 248.44, How
will environmental reviews be conducted?, to reflect the agency's
approach to conducting these reviews. MARAD seeks comment on whether
further changes to the regulatory text are needed consistent with the
Court's decision in Seven County.
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\1\ Seven Cnty. Infrastructure Coal. v. Eagle Cnty., Colorado,
145 S. Ct. 1497 (2025); see also Sierra Club v. FERC, 145 F.4th 74,
88-9 (D.C. Cir. 2025). The Court in Seven County determined that
analysis beyond the direct regulatory impact at issue is not
required in an EIS.
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Public Participation
MARAD encourages public participation in this rulemaking by
submitting comments and related materials.
How long do I have to submit comments?
MARAD provides a 60-day comment period for this proposed
rulemaking. Comments must be submitted on or before the date indicated
in the DATES section at the beginning of this document.
How do I prepare and submit comments?
Comments may be submitted to the docket electronically by logging
onto the Docket Management System website at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, searching for this rulemaking by the DOT Docket
Number listed above and following the online instructions for
submitting comments. MARAD will also accept comments via mail or hand-
delivery to the Docket Management Facility at the address given above
under ADDRESSES.
All comments, no matter how they are received, will be posted to
the docket following DOT rulemaking procedures. To ensure that your
comments are correctly filed in the docket, please include the DOT
Docket Number shown at the beginning of this document in your comments.
Please note that pursuant to the Data Quality Act, for substantive
data to be relied upon and used by the agency, it must meet the
information quality standards set forth in the OMB and DOT Data Quality
Act guidelines. Accordingly, MARAD encourages you to consult the
guidelines in preparing your comments. OMB's guidelines may be accessed
at <a href="https://www.opm.gov/information-management/information-quality-guidelines/">https://www.opm.gov/information-management/information-quality-guidelines/</a>. DOT's guidelines may be accessed at <a href="https://www.transportation.gov/sites/dot.gov/files/docs/regulations/513/dot-information-quality-guidelines-2019.pdf">https://www.transportation.gov/sites/dot.gov/files/docs/regulations/513/dot-information-quality-guidelines-2019.pdf</a>.
How can I be sure that my comments were received?
For electronic comments: Comments submitted electronically at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> will be reflected on the docket typically
within three business days.
For mailed comments: If you wish for the Docket Management Facility
to notify you upon receipt of your comments, enclose a self-addressed,
stamped postcard in the envelope containing your comments. Upon
receiving your comments, Docket Management will return the postcard by
mail. All comments received by the Docket Management Facility will be
posted to the electronic docket typically within five business days.
How do I submit confidential business information?
Confidential business information (CBI) is commercial or financial
information that is both customarily and actually treated as private by
its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552),
CBI is exempt from public disclosure. If your comments to the rule
contain commercial or financial information that is customarily treated
as private, that you actually treat as private, and that is relevant or
responsive to this rule, it is important that you clearly designate the
submitted comments as CBI. Please mark each page of your submission
that constitutes CBI as ``PROPIN'' to indicate it contains proprietary
information and make your submission via email to
<a href="/cdn-cgi/l/email-protection#95c7e0f9f0f8f4fefcfbf2e6bbd8d4c7d4d1d5f1fae1bbf2fae3"><span class="__cf_email__" data-cfemail="d183a4bdb4bcb0bab8bfb6a2ff9c9083909591b5bea5ffb6bea7">[email protected]</span></a>. MARAD will treat such marked submissions as
confidential under the FOIA, and they will be redacted or omitted in
their entirety, as appropriate, from the public docket of this rule. In
addition, to assist our proper management of your CBI/PROPIN comment
submission, MARAD recommends that you submit a version of your
confidential comment from which you have redacted the sensitive
information. Doing so will assist
[[Page 69770]]
MARAD in posting a redacted version of your comment to the docket and
it will allow for MARAD to rely on the substantive content of your
comment in developing the rulemaking. A redacted submission will also
assist any review under a relevant FOIA request where the submission
may be considered responsive information. Any comments MARAD receives
that are not specifically designated as CBI/PROPIN will be placed in
the public docket for this rulemaking.
May I submit comments anonymously?
All comments on this rulemaking, whether submitted to
<a href="http://regulations.gov">regulations.gov</a> or by mail or hand-delivery to the Docket Management
Facility at DOT, may be made anonymously. It is not necessary to
identify yourself when submitting comments on the rule. Because public
comments are generally posted to the public docket without change,
MARAD recommends that information of a personal nature that the
commenter (or the involved party, if not the commenter) does not want
to be made public not be submitted in response to the request for
public comment on this rule. MARAD notes that under the FOIA,
information is exempt from public disclosure if disclosure would
constitute a clearly unwarranted invasion of personal privacy. If your
comments contain personal information relevant or responsive to this
rule but disclosure of the information would be a clearly unwarranted
invasion of personal privacy, it is important that you clearly
designate the submitted comments as confidential.
Anonymous submissions containing confidential information should be
sent to MARAD via email to <a href="/cdn-cgi/l/email-protection#4c1e392029212d2725222b3f62010d1e0d080c282338622b233a"><span class="__cf_email__" data-cfemail="386a4d545d55595351565f4b1675796a797c785c574c165f574e">[email protected]</span></a> with the term
``CONFIDENTIAL'' in the subject heading and on each page containing
confidential information. In addition, to assist our proper management
of your comment submission, MARAD recommends that you submit a version
of your confidential comment from which you have redacted the
confidential information. This will allow MARAD to post the redacted
version of your comment to the docket without attribution to you or
your organization and allow MARAD to rely on the substantive content in
developing the rulemaking. It will also assist any review under a
relevant FOIA request where your submission may be considered
responsive information.
Will the agency consider late comments?
MARAD will consider all comments received via <a href="http://regulations.gov">regulations.gov</a> and
mail or hand-delivery to the Docket Management Facility before the
close of business on the comment closing date indicated above under
DATES. To the extent practicable, MARAD will also consider comments
received after that date.
How can I read the comments submitted by other people?
You may read comments in the docket for this rulemaking online by
going to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and following the instructions for
accessing the docket or by searching for the DOT Docket Number
available at the beginning of this document and under the ADDRESSES
section. You may also read physical copies of the publicly available
comments received by the Docket Management Facility at the address
given above under ADDRESSES. The hours of the Docket Management
Facility office are indicated above in the same section.
Please note that, even after the comment closing date, MARAD will
continue to file relevant information in the docket as it becomes
available. Further, some people may submit late comments. Accordingly,
MARAD recommends that you periodically check the docket for new
material.
Regulatory Analyses and Notices
Executive Order 12866
This proposed rule has been determined to be ``significant''
pursuant to Section 3(f) of E.O. 12866 and was therefore reviewed by
the Office of Management and Budget (OMB).
Need for the Regulation
Section 7342 of 2026 NDAA designated MARAD as the Federal lead
agency for the purposes of NEPA compliance and directed the Commandant
of the USCG to transfer its authorities under 33 CFR part 148,
governing the deepwater port license application process and
environmental review, to the Secretary of Transportation and to retain
responsibility for authorities pertaining to the design, construction,
equipment, and operation of deepwater ports and navigational safety.
The proposed regulation would largely adopt and replace the provisions
of 33 CFR part 148 pertaining to deepwater port license application
submittal and processing and environmental criteria for application
review. MARAD and USCG have concluded that the consolidation and
realignment of application processing functions under MARAD would
streamline the application review process, leading to greater
efficiency in the issuance of licensing decisions in furtherance of
E.O. 14154's policy for the efficient administration of licensing and
permitting regimes that govern the development of domestic energy
resources and directs Federal agencies to review their regulations and
processes to promote this policy
Baseline
Under the no action baseline, applicants for deepwater port
licenses are subject to USCG regulations found at 33 CFR part 148,
rather than regulations issued by MARAD.
Costs
This proposed rule would update existing MARAD administrative
responsibilities reflecting the transfer of deepwater port NEPA review
and compliance functions from USCG to MARAD.
NEPA responsibilities for deepwater port license applications were
transferred from USCG to MARAD by statute. As a result, the NPRM does
not impose new or additional NEPA compliance requirements or costs on
applicants for deepwater port licenses; rather, the proposed rule would
simply reassign Federal responsibilities with regard to NEPA review.
Although there would likely be transactional and adminstrative
adjustments concerning correspondence, e.g., interacting with new
points of contact and familiarization with MARAD's internet site
concerning NEPA requirements, the adjustments are expected to be minor
and temporary because MARAD is adopting USCG's regulations in 33 CFR
part 148. Additionally, MARAD proposes to adopt clarifying amendments
proposed by USCG's April 9, 2015, Notice of Proposed Rulemaking (2015
NPRM) (80 FR 19118), which are not expected to result in increased
regulatory burdens on applicants. See the Section-by-Section Analysis
for additional information. MARAD expects that this proposed rule would
result in improved efficiency and clarity regarding the permitting
process.
Consolidating the application processing and NEPA review within
MARAD right-sizes inter-agency communications and reviews, streamlining
the processing of operators' applications by the agencies. This
proposed rule also provides specific administrative flexibilities and
relief. It replaces previous agency-driven extensions with a process
where timelines are suspended only upon request by the applicant when
responding to additional information requests. The rule also allows
applicants to submit existing hydrographic and
[[Page 69771]]
engineering geological survey data collected within the previous 5
years (or longer with MARAD approval) rather than forcing new,
expensive offshore surveys. It also amends 33 CFR 148.115 to require
only one printed copy and one electronic copy, eliminating multi-copy
physical filing burdens (currently multiple copies in different formats
to the USCG, MARAD, and the U.S. Army Corps of Engineers). In addition,
the proposed rule removes unused regulatory definitions and eliminates
obsolete procedures (such as Adjacent Coastal State designation
petitions under 33 CFR 148.217 that were repealed by statute).
MARAD is unable to estimate the expected cost savings for
operators. MARAD requests comment on the potential direct savings
operators may experience based on compliance costs, applications
processing, and other aspects of this proposed rule.
Costs to MARAD consist of the incremental monetary and non-monetary
expenses that would be incurred as MARAD undertakes the
responsibilities mandated by the 2026 NDAA and reflected in the
proposed regulation. The costs include (but are not limited to)
application completeness review, attendance at public meetings/
hearings, government travel costs, and development of the NEPA and
other environmental documents. Although MARAD expects that
administrative efficiency would result in a reduction in these costs,
it is unable to estimate the amount that would be saved.
Transfers
The DWPA requires applicants to remit a a nonrefundable application
fee (with the amount established by regulation) and to reimburse the
government for all costs in processing applications (see 33 U.S.C.
1504(h)(1)). Current USCG regulations at 33 CFR 148.125 set the
application fee at $350,000, and the proposed regulation would maintain
the same fee level. Due to the reimbursement requirement, however, the
total cost to the Government of processing applications would continue
to effectively be borne by the applicants and are not expected to
change as a result of the transfer of responsibilities from USCG.
Benefits
The elimination of duplicative agency application processing
functions, resulting in reduced statutory processing cost reimbursement
obligations borne by applicants, is in the national interest and
consistent with national security, energy sufficiency, environmental
quality, and other national policy goals and objectives. The benefits
of this NPRM would ensure that deepwater port applications are reviewed
and processed, and a license determination is made, all within one
Department. With this new authority, MARAD would continue to work to
ensure that deepwater ports, as United States maritime transportation
systems, are well designed, safe, secure, and approved in a timely
manner.
Summary
The proposed rule reflects the transfer of deepwater port license
application processing management under the DWPA from USCG to MARAD.
USCG responsibility for authorities pertaining to the design,
equipment, construction, operation of deepwater ports, and navigational
safety are not affected by this NPRM and would continue to be
administered by USCG. The NPRM provides procedures for processing
applications, including NEPA review, for the licensing of deepwater
ports, which are any fixed or floating manmade structure other than a
vessel, or any group of such structures, that are located beyond State
seaward boundaries and that are used or intended for use as a port or
terminal for the transportation, storage, or further handling of oil or
natural gas for transportation to or from any State. The rule would
clarify agency functions, eliminate duplicative interagency
communication requirements, incorporate statutory changes, and allow
both MARAD and USCG to focus exclusively on areas of core technical
expertise.
Executive Order 14192
E.O. 14192 requires that for ``each new [E.O. 14192 regulatory
action] issued, at least ten prior regulations be identified for
elimination.'' Implementation guidance for E.O. 14192, issued by OMB
(Memorandum M-25-20, March 26, 2025), defines an E.O. 14192
deregulatory action as ``an action that has been finalized and has
total costs less than zero.'' A determination of whether this proposed
rule is considered a deregulatory action under the requirements of
Executive Order 14192 and OMB Memorandum M-25-20 will be made when any
final rule in this rulemaking is issued.
Executive Order 13132
MARAD analyzed this rulemaking in accordance with the principles
and criteria contained in E.O. 13132, Federalism, and has determined
that it does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement. This rulemaking,
which reflects the transfer of deepwater port application processing
management, clarifies agency functions, including Federal lead NEPA
review and compliance, and incorporates statutory changes to the DWPA
since the deepwater port regulations were last published in 2006, would
have no substantial effect on the States, the current Federal-State
relationship, or the current distribution of power and responsibilities
among the various local officials. The proposed rule would apply 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 proposed rule would not
preempt State law.
Executive Order 13175
This rulemaking, in which MARAD proposes to transfer deepwater port
license application processing management under the DWPA from the USCG
to MARAD, would not significantly or uniquely affect the communities of
Indian Tribal governments when analyzed under the principles and
criteria contained in E.O. 13175. Therefore, the funding and
consultation requirements of E.O. 13175 do not apply.
Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996, whenever an agency is required to publish a NPRM for
public comment, it must prepare and make available for public comment
an initial regulatory flexibility analysis that describes the effect of
the rule on small entities (i.e., small businesses, small organizations
and small governmental jurisdictions), unless the head of an agency
certifies the rule would not have a significant economic impact on a
substantial number of small entities. Agencies must also provide a
statement of the factual basis for this certification.
For the following reasons, the Maritime Administrator certifies
that this rulemaking action would not have a significant economic
impact on a substantial number of small entities. The new MARAD
regulations would, if adopted, act only to reflect the transfer of
existing responsibilities from USCG to MARAD, clarify agency functions,
and incorporate statutory changes to the DWPA since the deepwater port
regulations were last updated in 2006. The rule would place no new
substantive requirements on deepwater
[[Page 69772]]
port applicants. Accordingly, the rule would not have a significant
economic impact on small entities.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 requires agencies to
evaluate whether an agency action would result in the expenditure by
State, local, and Tribal governments, in the aggregate, or by the
private sector, of $212 million or more (as adjusted for inflation in
2026) in any one year, and if so, to take steps to minimize these
unfunded mandates. This rulemaking would not impose unfunded mandates
under the Unfunded Mandates Reform Act of 1995. It would not result in
costs of $212 million or more to either State, local, or Tribal
governments, in the aggregate, or to the private sector, and is the
least burdensome alternative that achieves the objectives of the rule.
National Environmental Policy Act
Pursuant to 49 CFR 1.81, the Secretary has delegated the
``functions'' under NEPA to the Administrators ``as they relate to the
matters within the primary responsibility of each Operating
Administration.'' MARAD has determined that this proposed rule is
categorically excluded pursuant to DOT Order 5610.1D, subpart C,
section (e)(3). A categorical exclusion (CE) is an action identified in
an agency's NEPA procedures that does not normally have a significant
impact on the environment and therefore does not require either an
environmental assessment (EA) or environmental impact statement (EIS).
See DOT Order 5610.1D, section 9. In analyzing the applicability of a
CE, the agency must also consider whether extraordinary circumstances
are present that would warrant the preparation of an EA or EIS. Id. at
section 9(b). MARAD may utilize its own CEs, in addition to CEs listed
in DOT Order 5610.1D Appendix A or another Operating Administration's
CEs, using the procedures described in DOT Order 5610.1D, section 9,
and subpart C, section (e). This rule titled, Deepwater Port
Application Processing and Licensing, is categorically excluded
pursuant to DOT Order 5610.1D, subpart C, section (e)(3): ``Internal
orders and procedures not required to be published in the Federal
Register, promulgation of rules, regulations, directives, and
amendments thereto which do not require a regulatory impact analysis
under section 3 or do not have a potential to cause a significant
impact on the environment. . . .'' This rule would only reflect the
transfer of deepwater port license application processing management
under the Deepwater Port Act from the United States Coast Guard (USCG)
to MARAD and so does not have the potential to cause a significant
impact on the environment. MARAD does not anticipate any environmental
impacts, and there are no extraordinary circumstances present in
connection with this rulemaking.
Privacy Impact Assessment
Section 522(a)(5) of the Transportation, Treasury, Independent
Agencies, and General Government Appropriations Act, 2005 (Pub. L. 108-
447, div. H, 118 Stat. 2809 at 3268) requires DOT and certain other
Federal agencies to conduct a privacy impact assessment of each
proposed rule that will affect the privacy of individuals. This
rulemaking does not result in personally identifiable information (PII)
being collected or maintained in a Government-run website or IT system.
Therefore, MARAD did not conduct a Privacy Impact Assessment.
Regulation Identifier Number
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.
Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) (PRA)
requires that DOT consider the impact of paperwork and other
information collection burdens imposed on the public. Notwithstanding
any other provision of law, a person is not required to respond to a
collection of information by a Federal agency unless the collection
displays a valid OMB control number.
Section-by-Section Analysis
MARAD provides the following section-by-section analysis of the
revisions it proposes to make to those provisions currently found at 33
CFR part 148, which MARAD would adopt in 46 CFR part 248. Where
indicated below, MARAD would adopt many of the USCG's proposed
amendments to 33 CFR part 148 published in its 2015 NPRM.
A--General Provisions
Sec. 248.3 What Federal agencies are responsible for implementing
the Act? MARAD would clarify that it is now the sole agency responsible
for processing deepwater port applications under the Act, as required
by statute, and would identify the Federal cooperating agencies with
related permitting and authorization responsibilities for deepwater
ports.
Sec. 248.4 How are terms used in this part defined? MARAD would
eliminate defined terms found at 33 CFR 148.5 that do not appear
elsewhere in 33 CFR Part 148. Currently, 33 CFR 148.5 includes defined
terms that are used only in 33 CFR Parts 149 and 150. MARAD proposes to
omit such terms. MARAD also proposes to adopt the revisions to defined
terms proposed in the 2015 NPRM. See Table 1, Changes for 33 CFR
Subchapter NN, 80 FR 19120-19121.
Sec. 248.4(m) Construction. MARAD would revise this definition to
make it consistent with the statutory definition found at 33 U.S.C.
1502(7).
Sec. 248.4(t) Engineering geological survey. MARAD would adopt the
proposed revised definition from the 2015 NPRM clarifying that the
necessary analysis considers all geological factors and is not limited
to hydrographics. This change will reduce the need for applicants to,
as is currently the case, submit additional information as a supplement
under 33 CFR 148.107.
Sec. 248.4(v) Lease block. MARAD would revise this definition to
simplify statutory citations.
Sec. 248.4(aa) Maritime Administrator or MARAD. MARAD would update
its address provided in 33 CFR 148.5.
Sec. 248.4(cc) Mile. MARAD would adopt the proposed clarification
from the 2015 NPRM that mile refers to nautical mile.
Sec. 248.4(jj) Pipeline. MARAD would add a definition for pipeline
that mirrors the definition of that term used by the Pipeline and
Hazardous Materials Administration (PHMSA).
B--Application for a License
Sec. 248.5 What must I include in my application?
Sec. 248.5(d) Citizenship and operating authority. MARAD would
provide an affidavit of U.S. citizenship template that an applicant
would use to evidence that it qualifies as a citizen of the United
States as defined by 33 U.S.C. 1502(4). MARAD has made affidavit
templates available upon request of prospective applicants but proposes
to provide a form of affidavit for corporations within the text of the
46 CFR 248.5. MARAD would clarify that an applicant may adapt the
affidavit to reflect types of business formation or associations other
than corporations.
Sec. 248.5(j) Identification of lease block. MARAD would adopt the
2015
[[Page 69773]]
NPRM's proposed clarification to 33 CFR 148.105(k) providing an
alternative to the use of a professional surveyor when identifying each
lease block where any part of a proposed deepwater port is located. 80
FR 19122.
Sec. 248.5(l) Site plan for marine components. MARAD would adopt
the 2015 NPRM's proposed revisions to 33 CFR 148.5(m) clarifying that
anchorages and mooring areas can be used during a deepwater port's
construction as well as after it becomes eligible. We would delete some
survey specifications found at 33 CFR 148.5(m)(2) because MARAD
describes the specific information required in the license conditions
for individual deepwater ports. We would allow use of older
hydrographic data, with MARAD approval, so long as newer data is
provided for any specific locations having a high degree of
hydrographic variability. We would further require applications to
include MetOcean data, which is essential for analyzing a proposed
deepwater port's environmental impact.
Sec. 248.5(m) Engineering geological survey data. MARAD would
adopt the 2015 NPRM's proposed revision to 33 CFR 148.105(n) clarifying
that full geological information, not just soil data, is essential for
analyzing a proposed deepwater port's environmental impact.
Sec. 248.5(r) Refurbished Outer Continental Shelf facilities and
co-located fixed offshore components. MARAD would adopt the 2015 NPRM's
proposed revision to 33 CFR 148.105(s) clarifying that information
about the methods the applicant expects to use in regasifying natural
gas prior to transmission is essential for analyzing a proposed
deepwater port's environmental impact. This change will reduce the need
for applicants to, as is currently the case, submit this additional
information as a supplement under 33 CFR 148.107.
Sec. 248.5(s) Information on offshore pipelines. MARAD would adopt
the 2015 NPRM's proposed revision to 33 CFR 148.105(t) encouraging
applicants to consult with PHMSA to help facilitate the applicant's
ability to comply with PHMSA requirements for pipeline safety.
Sec. 248.5(x) Risk and consequence assessment. MARAD would
encourage applicants to consult USCG to ensure that appropriate risk
and consequence assessment procedures are used.
Sec. 248.5 (aa) Applicable environmental permits and
authorizations. MARAD would clarify that applicants submit copies of
filed applications or draft applications for permits or other
authorizations under the Clean Air Act, Clean Water Act, Coastal Zone
Management Act, Rivers and Harbors Act, and other applicable
environmental standards. MARAD would provide examples of relevant
Federal permits and authorizations.
Sec. 248.5(dd) MARPOL. MARAD would adopt the 2015 NPRM's proposed
clarification adding language for the International Convention for the
Prevention of Pollution from Ships, 1973, as modified by the Protocol
of 1978 relating to that Convention, and as further modified by the
Protocol of 1997.
Sec. 248.6 What additional information may be required? This
section describes the process MARAD would follow in those cases where
an applicant is required to provide additional information that MARAD
deems necessary to process an application. The proposed 46 CFR 248.6
would replace the procedure provided at 33 CFR 148.107 under which
MARAD extended the application review period upon the recommendation of
the Commandant (CG-5P).
The process MARAD would follow is the process established by Sec.
3514 of Public Law 118-31 (Dec. 22, 2023), which amended 33 U.S.C. 1504
by providing applicants subject to a MARAD request for additional
information with the right to request a technical assistance meeting
with MARAD. MARAD proposes that it would suspend the application review
timeline only upon the request of an applicant in the event an
applicant needs additional time to submit required information
previously requested by MARAD. MARAD also specifies that an application
would be denied due to insufficient information to process the
application only if an applicant does not submit the required
information within the statutory review period (as tolled by approved
suspension requests under 46 CFR 248.6(d)).
MARAD would provide a procedure for an applicant that has received
a request for additional information from MARAD to request a meeting
for technical assistance with MARAD personnel and representatives of
any cooperating Federal agency MARAD determines to be relevant with
respect to the application.
Sec. 248.9 How many copies of the application must I send and
where must I send them? MARAD would amend the application submission
procedures described at 33 CFR 148.115 by requiring applicants to
submit one printed copy and one electronic copy to MARAD.
C--Processing Applications
Sec. 248.14 What must I do if I need to change my application?
MARAD would amend the application change procedures found at 33 CFR
148.211 to clarify that MARAD may require the applicant to submit an
amended application in the event the information in the application
changes, becomes incomplete, or becomes inaccurate.
Sec. 248.16 May I resubmit my application? MARAD would provide a
procedure for an applicant to resubmit a previously withdrawn
application.
E--Formal Hearings
Sec. 248.21 What if a formal evidentiary hearing is necessary?
MARAD would replace the evidentiary hearing procedures prescribed by
the USCG at 33 CFR 148.228-256, which govern such hearings under USCG
procedures, with procedures prescribed by MARAD in accordance with 5
U.S.C. 554. The proposed use of procedures prescribed pursuant to 5
U.S.C.554 will not differ in any substantive way from the current
procedures.
F--Approval or Denial of the Application
Sec. 248.22 What is the timeline for approving or denying an
application? MARAD would provide additional information about
publishing a notice of availability of the final environmental impact
statement to the description of the application review timeline
currently found at 33 CFR 148.276.
Sec. 248.23 How may Federal agencies and States participate in the
application process? MARAD would add a subparagraph to the provisions
found at 33 CFR 148.277 clarifying the deadline for Governors of
Adjacent Coastal States to submit their approval or disapproval of an
application. MARAD would accept Governors' decisions only within the
45-day period after the close of the final public hearing on the
application and not before the final public hearing.
MARAD would not adopt the provisions found at 33 CFR 148.217
providing procedures for designating an Adjacent Coastal State upon
request of a State because the right to make such a designation request
was repealed by Public Law 118-31, Sec. 3514(k)(k)(6)(A) (Dec. 22,
2023).
Sec. 248.24 What are the criteria for approval or denial of an
application? MARAD would include the list of statutory criteria for
deepwater port license approval in this section.
Sec. 248.26 When may the application process be stopped and an
application be treated as withdrawn? MARAD would clarify that
conditions for
[[Page 69774]]
stopping the application process and treating an application as
withdrawn found at 33 CFR 148.283 include when an applicant fails to
provide information necessary, in a timely fashion, to complete an
environmental impact statement.
H--Site Evaluation and Pre-Construction Testing
Sec. 248.34 What are the procedures for notifying MARAD of
proposed site evaluation and pre-construction testing? MARAD would
clarify that MARAD, and not the USCG, is responsible for administering
the provisions governing site evaluation and pre-construction testing.
MARAD would adopt the clarification on guidelines for geological and
geophysical surveys as proposed in the 2015 NPRM.
I--Exemption From or Adjustments to Requirements
46 CFR 248.38--248.40. MARAD would clarify that MARAD, and not the
USCG, is responsible for administering the provisions governing
exemptions from the requirements of the proposed subchapter.
J--Oil Pollution Act of 1990 Limits of Liability for Deepwater Ports
Sec. 248.41 Where can I find the Oil Pollution Act of 1990 (OPA
90) limits of financial liability for deepwater ports? MARAD adopt the
2015 NPRM's proposed amendment to 33 CFR 148.600 providing additional
information about deepwater port financial liability limits under OPA
90.
Sec. 248.42 What are the procedures under OPA 90 for adjusting a
deepwater port's limit of liability under 33 U.S.C. 2704(d)(2)? MARAD
would clarify that USCG retains the authority to lower the applicable
OPA 90 limit of liability upon an applicant or licensee's request and
would direct applicants to submit such requests to the Commandant (CG-
5P).
K--Environmental Review Criteria for Deepwater Ports
Sec. 248.46 What type of criteria will be used in an environmental
review and how will they be applied? MARAD would adopt the 2015 NPRM's
proposed amendment to 33 CFR 148.700 setting forth the list of resource
areas which will be considered in the environmental impact analysis to
include, without being limited to, threatened species, marine protected
areas, marine, coastal and migratory birds, marine mammals, and
fisheries. This change will reduce the need for applicants to, as is
currently the case, submit additional information as a supplement under
33 CFR 148.107.
Sec. 248.49 What environmental conditions must be satisfied? MARAD
would adopt the 2015 NPRM's proposed amendment to 33 CFR 148.715
providing applicants with more complete information about the scope of
environmental evaluation.
Collection of Information
MARAD invites the public to comment on its intention to request
Office of Management and Budget (OMB) approval of a new information
collection in accordance with the PRA, given the transfer of
responsibilities from USCG to MARAD. The proposed collection entitled
Deepwater Port Application Processing and Licensing Information is
necessary for MARAD to identify qualified applicants, secure all
necessary information to ensure the development and submission of an
EIS; issue a Record of Decision (ROD); and if an applicant is approved
and fulfills all of the conditions set forth in the ROD, to issue a
Deepwater Port License to own, operate, and construct a deepwater port
in accordance with the DWPA.
MARAD is required to publish this notice in the Federal Register to
obtain comments from the public and affected agencies. Comments must be
submitted following the directions in the DATES and ADDRESSES sections
above.
Title: Deepwater Port Application Processing and Licensing
Information.
OMB Control Number: Proposed.
Type of Request: New.
Abstract: This collection will allow MARAD to administer the DWPA.
MARAD will evaluate the information collected from respondents to
ensure the proposed deepwater project complies with NEPA and also
determine if the appropriate technical and financial data is provided
for the issuance of a deepwater port license.
Respondents: Oil and gas import and export enterprises, oil and gas
producers and suppliers.
Affected Public: Members of the public, adjacent coastal States,
and members of the oil and gas industry.
Estimated Number of Respondents: 2 once annually.
Estimated Number of Responses: 2 once annually.
Estimated Hours per Response: 5,232 hours to complete all aspects
of the application process (i.e., the application and administrative
requirements (1200 hours), environmental review and analysis (3,000
hours), and technical and supplemental submission (1,032 hours).
Annual Estimated Total Annual Burden Hours: 10,464 hours.
Frequency of Response: One time.
Total cost for all Respondents: $705,843, including an application
fee of $350,000 and copying and mailing costs totaling an estimated
$2,921.90.
Other Costs to Industry: For applicant lawyers, environmental
engineers, and environmental technologists and technicians to complete
all components of the application process is $770,952.64.
MARAD welcomes public comments and feedback from the industry
regarding the cost estimates. MARAD will consider all comments received
as indicated in the above DATES section. In addition, public comments
will be accepted and considered during both this 60-day and a later 30-
day Federal Register notice period.
List of Subjects in 46 CFR Part 248
Administrative practice and procedure, Environmental protection,
Ports, Harbors, Petroleum.
For the reasons stated in the preamble, MARAD proposes to amend 46
CFR ch. II, subch. B by adding part 248 to read as follows:
SUBCHAPTER B--REGULATIONS AFFECTING MARITIME CARRIERS AND RELATED
ACTIVITIES MARITIME INTERESTS
Subpart H--Deepwater Ports
PART 248--DEEPWATER PORT APPLICATION PROCESSING AND LICENSING
Sec.
A--General Provisions
248.1 What is the purpose of this part?
248.2 Who is responsible for complying with this part?
248.3 What Federal agencies are responsible for implementing the
Act?
248.4 How are terms used in this part defined?
B--Application for a License
248.5 What must I include in my application?
248.6 What additional information may be required?
248.7 What if a Federal or State agency or other interested party
requests additional information?
248.8 How do I prepare my application?
248.9 How many copies of the application must I send and where must
I send them?
248.10 What are the application fees?
C--Processing Applications
248.11 How are documents related to the application maintained?
248.12 How and where may I view docketed documents?
248.13 How is the application processed?
[[Page 69775]]
248.14 What must I do if I need to change my application?
248.15 How do I withdraw my application?
248.16 May I resubmit my application?
248.17 What if a port has plans for a deep draft channel and harbor?
248.18 How do I claim, or object to a claim of, privileged
information?
D--Public Hearings or Meetings
248.19 When must public hearings or meetings be held?
248.20 How is a public hearing or meeting reported?
E--Formal Hearings
248.21 What if a formal evidentiary hearing is necessary?
F--Approval or Denial of the Application
248.22 What is the timeline for approving or denying an application?
248.23 How may Federal agencies and States participate in the
application process?
248.24 What are the criteria for approval or denial of an
application?
248.25 What happens when more than one application is submitted for
a deepwater port in the same application area?
248.26 When may the application process be stopped and an
application treated as withdrawn?
G--Licenses
248.27 What is included in a deepwater port license?
248.28 Who may consult with MARAD on developing the proposed
conditions of a license?
248.29 How long does a license last?
248.30 How is a license amended, transferred, or reinstated?
248.31 How is a license enforced, suspended, or revoked?
248.32 How soon after deepwater port decommissioning must the
licensee initiate removal?
H--Site Evaluation and Pre-Construction Testing
248.33 What does this subpart do?
248.34 What are the procedures for notifying MARAD of proposed site
evaluation and pre-construction testing?
248.35 What are the conditions for conducting site evaluation and
pre-construction testing?
248.36 When conducting site evaluation and pre-construction testing,
what must be reported?
248.37 When may MARAD suspend or prohibit site evaluation or pre-
construction testing?
I--Exemption From or Adjustments to Requirements
248.38 How do I apply for an exemption?
248.39 What happens when a petition for exemption involves the
interests of an Adjacent Coastal State?
248.40 When is an exemption allowed?
J--Oil Pollution Act of 1990 Limits of Liability for Deepwater Ports
248.41 Where can I find the Oil Pollution Act of 1990 (OPA 90)
limits of financial liability for deepwater ports?
248.42 What are the procedures under OPA 90 for adjusting a
deepwater port's limit of liability under 33 U.S.C. 2704(d)(2)?
K--Environmental Review Criteria for Deepwater Ports
248.43 How does the Deepwater Port Act interact with other Federal
and State laws?
248.44 How will environmental reviews be conducted?
248.45 What is determined by the environmental evaluation?
248.46 What type of criteria will be used in an environmental review
and how will they be applied?
248.47 How are these criteria reviewed and revised?
248.48 What environmental conditions must be satisfied?
248.49 How is an environmental review conducted?
248.50 What are the siting criteria?
248.51 Should the construction plan incorporate best available
technology and recommended industry practices?
248.52 What are the design, construction, and operational criteria?
248.53 What are the land use and coastal zone management criteria?
248.54 What are other critical criteria that must be evaluated?
248.55 What environmental statutes must an applicant follow?
Authority: 33 U.S.C. 1504, 49 CFR 1.93(h).
A--General Provisions
Sec. 248.1 What is the purpose of this part?
Part 248 prescribes regulations for the licensing of deepwater
ports under the Deepwater Port Act of 1974, as amended (codified at 33
U.S.C. 1501 et seq.) (the Act or DWPA).
Sec. 248.2 Who is responsible for complying with this part?
Unless otherwise specified, the owner of a deepwater port is
responsible for compliance with the requirements of this part.
Sec. 248.3 What Federal agencies are responsible for implementing the
Act?
(a) By delegation from the Secretary of Transportation, MARAD is
authorized to process applications for the issuance, transfer, or
amendment of licenses for the construction and operation of deepwater
ports. Pursuant to that authority, MARAD is responsible for the
following:
(1) Complying with the National Environmental Policy Act of 1969
(NEPA), including, but not limited to, ensuring the preparation of all
appropriate environmental documents (e.g., Environmental Assessments,
Environmental Impact Statement) for each deepwater port license
application. The United States Coast Guard (USCG) is responsible for
certain matters relating to navigation safety and security, engineering
and safety standards, and deepwater port operations;
(2) Issuing the Record of Decision (ROD) to announce whether a
license application is approved, approved with conditions, or denied,
and for issuing, revoking, and reinstating deepwater port licenses;
(3) Approving fees charged by Adjacent Coastal States; and
(4) Administering certain matters relating to international policy,
civil actions, and suspension or termination of licenses.
(b) By delegation from the Secretary of Transportation, the
Administrator of the Pipeline Hazardous Materials and Safety
Administration (PHMSA) is authorized to carry out the functions vested
in the Secretary under section 21 of the Act relating to the safe
construction, operation, and maintenance of pipelines associated with
deepwater ports.
(c) The Secretary of the Interior is responsible for determining
the fair market rental value of the subsoil and seabed of the Outer
Continental Shelf of the United States to be used by the deepwater
port, including, but not limited to, the fair market rental value of
the right-of-way necessary for the pipeline segment of the port located
on such subsoil and seabed. Any proposed subsurface storage of oil and
gas in the submerged lands of the Outer Continental Shelf is also
subject to the review and approval of the Secretary of the Interior. To
minimize potential impacts to existing facilities and protect the
development potential of nearby oil, gas, and mineral resources, the
Department of the Interior should also be involved in the site
selection process.
(d) USCG, Environmental Protection Agency (EPA), National Oceanic
and Atmospheric Administration, U.S. Army Corps of Engineers, and other
Federal agencies are designated by the Act as cooperating agencies to
provide support to MARAD in its review and evaluation of deepwater port
license applications including any required environmental review.
Sec. 248.4 How are terms used in this part defined?
(a) Accommodation module means a module with one or more modular
accommodation spaces that are individually contracted and may be used
for one or more facilities.
(b) Act means the Deepwater Port Act of 1974, as amended (codified
at 33 U.S.C. 1501 et seq.).
(c) Adjacent Coastal State means any coastal State which:
[[Page 69776]]
(1) Would be directly connected by pipeline to a deepwater port, as
proposed in an application; or
(2) Would be located within 15 nautical miles of any such proposed
deepwater port.
(d) Affiliate means a person or company that:
(1) Owns a direct or indirect interest of more than three percent
in an applicant;
(2) Offers to finance, manage, construct, or operate the
applicant's deepwater port to any significant degree;
(3) Owns or controls an applicant or an entity under paragraphs (1)
or (2) of this definition; or
(4) Owns or is controlled by, or is under common ownership of, an
applicant or an entity under paragraphs (1), (2), or (3) of this
definition.
(e) Applicant means a person that proposes to own, construct, and
operate a deepwater port and applies for a license under this part.
(f) Application means an application submitted under this part for
a license to own, construct, and operate a deepwater port.
(g) Approved means approved by MARAD unless otherwise specified.
(h) Barrel means 42 U.S. gallons (approximately 159 liters) at
atmospheric pressure and 60 [deg]F.
(i) 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.
(j) 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.
(k) Coastal State means a State of the United States in or
bordering the Atlantic, Pacific, or Arctic Oceans or the Gulf of
America.
(l) Confined space means a space that may contain a dangerous
atmosphere, including a space that:
(1) Has poor natural ventilation, for example a space with limited
openings, such as a cofferdam or double bottom tank; or
(2) Is not designed for continuous occupancy by personnel.
(m) Construction means the 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.
(n) Control means the direct or indirect power to determine the
policy, business practices, or decision-making process of another
person, whether by stock or other ownership interest, by representation
on a board of directors or similar body, by contract or other agreement
with stockholders or others, or otherwise.
(o) 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.
(p) 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.
(q) Deepwater port 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 or from 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 Port
Act, including transportation of oil or natural gas from the United
States OCS, and:
(1) 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;
(2) 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 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
(3) Must be considered a ``new source'' for purposes of the Clean
Air Act, as amended (codified at 42 U.S.C. 7401 et seq.), and the
Federal Water Pollution Control Act, as amended (codified at 33 U.S.C.
1251 et seq.).
(r) District commander means an officer who commands a USCG
district described in 33 CFR ch. I, subch. NN, or that individual's
authorized representative.
(s) 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.
(t) Engineering geological 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.
(u) 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.
(v) Lease block means an area established either by the Secretary
of the Interior under 43 U.S.C. 1334, or by a State under 43 U.S.C.
1311.
(w) License means a license issued under this part to own,
construct, and operate a deepwater port.
(x) 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.
(y) 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
[[Page 69777]]
(3) The recreational and scenic values of those waters and
resources.
(z) 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.
(aa) Maritime Administration or MARAD means the Administrator of
the Maritime Administration or that person's designee(s) at 1200 New
Jersey Avenue SE, Washington, DC 20590.
(bb) 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
between vessels and pipelines.
(cc) Mile means nautical mile.
(dd) Natural gas means either natural gas, unmixed, or any mixture
of natural or artificial gas, including compressed or liquefied natural
gas.
(ee) Natural gas liquid means liquid hydrocarbons associated with
or extracted from natural gas, for example ethane, propane and butane
extracted from natural gas.
(ff) 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.
(gg) Oil means petroleum, crude oil, and any substance refined from
petroleum or crude oil.
(hh) Person means an individual, a public or private corporation, a
partnership or other association, or a government entity.
(ii) Personnel means individuals who are employed by licensees,
operators, contractors, or subcontractors, and who are on a deepwater
port because of their employment.
(jj) Pipeline means all parts of those physical facilities through
which oil or gas moves in transportation, including pipe, valves, and
other appurtenances.
(kk) Platform means a fixed or 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 functions may be carried out.
(ll) Reconnaissance hydrographic survey means a scientific study of
fresh and saltwater bodies, currents and water content, cultural
resources, seabed soils, and subsea conditions. A visual representation
of the survey findings is normally depicted on a chart of the examined
area.
(mm) Routing system 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.
(nn) Safety zone means a safety zone established around a deepwater
port and extending up to 500 meters (approximately 1,640 feet) around
the deepwater port, 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 but not interfering with the use of recognized sea lanes.
(oo) State means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, or a territory or possession
of the United States.
(pp) 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.
(qq) Survival craft means a craft described in 33 CFR ch. I, subch.
NN.
(rr) Tanker means a vessel that calls at a deepwater port to load
or unload oil or natural gas.
(ss) 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.
B--Application for a License
Sec. 248.5 What must I include in my application?
(a) General. For each applicant, affiliate, and consultant, the
application must include the following:
(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 affiliates 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) For each applicant, affiliate, and consultant, the application
must include 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; and
(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. Each engineering firm that will design the
deepwater port or a portion of the port must provide the following
information:
(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 the following:
(1) An affidavit demonstrating that the applicant is a citizen of
the United States, which in the case of a corporation,\2\ reads as
follows:
---------------------------------------------------------------------------
\2\ The form of affidavit of U.S. citizenship may be adapted for
applicants which are partnerships, limited partnerships, limited
liability companies, and associations formed in any State.
---------------------------------------------------------------------------
AFFIDAVIT OF U.S. CITIZENSHIP
State of___)
) ss.:
County of ___)
[[Page 69778]]
I, (Name), of (Physical residence address, city, and state), being
duly sworn, depose and say:
1. That I am authorized by and in behalf of ___(Name Applicant)
(hereinafter called the ``Corporation'') to execute and deliver this
Affidavit of U.S. Citizenship;
2. That this affidavit is provided as evidence of the Corporation's
status as a citizen of the United States as defined in accordance with
33 U.S.C. 1502(4);
3. That the Corporation is organized and existing under the laws of
the State of ___with offices at (Business address), in evidence of
which incorporation true copies of the Certificate or Articles of
Incorporation and Bylaws of the Corporation are filed herewith (or have
previously been filed with the Maritime Administration);
4. That the names of the Chief Executive Officer, by whatever
title, President, Vice Presidents or other individuals, by whatever
title, who are authorized to act in the absence or disability of the
Chief Executive Officer, the Chairman of the Board of Directors, and
the Directors of the Corporation are as follows:
Name: Title: Nationality:
Each of said individuals is a Citizen of the United States by
virtue of birth in the United States, birth abroad of U.S. citizen
parents, by naturalization, or as otherwise authorized by law, except:
(give name and nationality of all non-citizen officers meeting the
description above and non-citizen directors, if any)
The Bylaws of the Corporation provide that (Number) of the
Directors are necessary to constitute a quorum; therefore, Non-Citizen
Directors (if any) represent no more than a minority of the number
necessary to constitute a quorum; and
5. That affiant has carefully examined this affidavit and asserts
that all of the statements and representations contained therein are
true to the best of his knowledge, information, and belief.
(Name and title of affiant)___ ___
(Signature of affiant) Date
(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 for limited
liability companies, the equivalent organizational documents; 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.
(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
deepwater port, and whether access will be open or closed.
(g) Financial information. 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:
(1) 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 MARAD
may waive this requirement upon finding:
(i) That an affiliate does not, in the normal course of business,
produce audited statements; and
(ii) That the affiliate is part of a larger corporate group whose
audited statements provide sufficient information to support an
adequate assessment of the affiliate's relationship with and impact on
the applicant.
(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 licensee of a deepwater port is responsible for the
costs associated with removal of all deepwater 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) Annual projections or estimates, along with the underlying
assumptions, for the next 5 years and at reasonable intervals
thereafter throughout the life of the deepwater port, of the following:
(i) Projected financial statements, including a balance sheet and
income statement; and
(ii) 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.
(h) Construction contracts and construction-related studies. For
applicants with construction contracts and construction-related
studies, provide the following:
(1) A copy of each contract that the applicant has 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 the
following information for each contractor:
(i) Name;
(ii) Address;
(iii) Citizenship;
(iv) Telephone number; and
(v) Qualifications.
(i) Compliance with Federal water pollution requirements. Provide
the following information evidencing compliance with Federal water
pollution requirements:
(1) Evidence, to the extent available, that the requirements of 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 will be
conditioned upon the applicant demonstrating that the requirements of
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) Identification of lease block. Provide the following lease
block information:
(1) Identification of each lease block where any part of the
proposed deepwater port or its approaches is located. This
identification must be made on official Outer Continental Shelf leasing
maps or protraction diagrams,
[[Page 69779]]
where available. Each map and diagram must be certified by a
professional surveyor, or, in the alternative, the applicant must
provide an equivalent means of certifying accuracy. 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 any person,
including the applicant, has in each block.
(3) Detailed information concerning the present and planned use of
each block.
(k) 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.
(l) 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;
(ii) Recommended ships' routing measures and proposed vessel
traffic patterns in the deepwater port area, including aids to
navigation;
(iii) Recommended anchorage areas and, for support vessels, mooring
areas; and
(iv) Proposed anchorage and mooring areas, including areas
associated with construction and pipelaying operations;
(2) A reconnaissance hydrographic survey of the proposed marine
site. This survey should provide data on the water depth, cultural
resources, and a general characterization of the sea bottom. A
requirement to submit a reconnaissance hydrographic survey of the final
marine site will be imposed as a condition in the license. The
applicant may submit existing data gathered within the previous five
years (or within a longer timeframe if approved by MARAD), but it must
be supplemented by field data for specific locations in which a high
degree of variability exists;
(3) Meteorological/oceanographic (``MetOcean'') data. This should
include data on prevailing winds, currents, waves and storms in the
vicinity of the proposed marine site; and
(4) Vessel traffic data. This should include at least one year of
vessel traffic data from the most recent year's data, if available, in
the vicinity of the proposed marine site.
(m) Engineering geological survey data. An initial preliminary
analysis of the general character and condition of the ocean bottom and
sub-bottom, soils and sediments throughout the marine site, and, if
applicable, soils and topography throughout the terrestrial site. If
the applicant proposes to use horizontal directional drilling (HDD),
the initial preliminary analysis must include a study addressing the
feasibility of HDD in the proposed HDD location. The applicant may use
existing data, so long as it was collected within the last 5 years (or
within a longer timeframe if approved by MARAD) 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
specializing in soil mechanics, such as a registered professional
engineer or an equivalent means of certifying accuracy, 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.
(n) 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
Department of the Interior for activities on the Outer Continental
Shelf. The survey must include the areas potentially affected by the
deepwater port, or any other associated platforms, and its pipeline
routes.
(o) Vessel information. Vessel information consisting of the
following:
(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.
(p) Information on floating components. Floating component
information consisting of the following:
(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 33 CFR ch. I, subch. NN 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; and
(6) A description of the lighting that will be used on floating
hoses for night detection.
(q) Information on dedicated fixed offshore components. Dedicated
fixed offshore component information consisting of the following:
(1) A description and preliminary design drawing for each dedicated
fixed offshore component;
(2) The design criteria, developed under 33 CFR ch. I, subch. NN 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 structure.
(r) Refurbished Outer Continental Shelf facilities and co-located
fixed offshore components. Refurbished OCS facilities and co-located
fixed offshore component information consisting of the following:
[[Page 69780]]
(1) A description and preliminary design drawing for each such
facility or component;
(2) The design criteria, developed under 33 CFR ch. I, subch. NN 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 regasification, throughput measuring, leak detection,
emergency shutdown, and the alarm system.
(7) The personnel capacity of each deepwater port structure.
(s) Information on offshore pipelines. To facilitate timely
processing of an application, applicants are encouraged to consult with
PHMSA to verify the requirements for the design, construction,
operation, and maintenance of pipelines prior to submitting an
application, which must include the following:
(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; and
(7) Information on the pipeline that will connect to the deepwater
port, including a detailed analysis that shows throughput and capacity
rates of all pipelines involved in the transport of product to shore.
(t) Information about onshore components. To the extent known by
the applicant, onshore component information consisting of the
following:
(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 or utilized 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;
(2) A chart showing the location of all planned and existing
facilities that will be served by or utilized by the deepwater port,
including:
(i) Onshore pipelines;
(ii) Storage facilities;
(iii) Refineries;
(iv) Petrochemical facilities; and
(v) Transshipment facilities.
(3) For proposed oil import projects, 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.
(u) Information on miscellaneous components. Miscellaneous
component information consisting of the following:
(1) A description of each radio station or other communications
facility, including its proposed concept of operation, to be used
during construction and operation of the deepwater port;
(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; and
(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.
(v) 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.
(w) Operations manual. A draft of the operations manual for the
proposed deepwater port, containing the information required by 33 CFR
ch. I, subch. NN. The operations manual must demonstrate the
applicant's ability to operate the deepwater 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 BOEM requirements for those
facilities. If the information required for the manual is not
available, explain why it is not and when it will be available.
(x) Risk and consequence assessment. The applicant must submit data
to support an independent, site-specific analysis to assess the risks
and consequences of accidental and intentional events that compromise
cargo containment. The applicant should consult with USCG to ensure
that appropriate assessment procedures are used.
(y) Environmental evaluation. An analysis, sufficient to meet the
requirements of NEPA, and as outlined in subpart K 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.
The analysis must identify a reasonable range of alternatives to the
proposed action including, but not limited to, deepwater port location,
pipeline route and landfall, construction methods, deepwater port
design, technologies used during operation, and the no-action
alternative. Applicants should normally submit this analysis in the
form of an applicant-prepared Environmental Impact Statement (EIS).
Contractors may be utilized by the applicant and MARAD to prepare
environmental documentation. MARAD retains responsibility for the
contents of the environmental document and will independently evaluate
and may require changes or additional analyses to meet the requirements
of NEPA.
[[Page 69781]]
(z) Aids to navigation. Aids to navigation information consisting
of the following:
(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.
(aa) Applicable Environmental Permits and Authorizations. Provide
copies of filed applications or draft applications for permits and
other authorizations under the Clean Air Act, Clean Water Act, Coastal
Zone Management Act, Rivers and Harbors Act, and other applicable
environmental statutes that will be required for construction and
operation of the facility and the status of each application.
Applicants must separately submit completed applications for any
required permits and authorizations to the respective permitting
agencies in accordance with those agencies' application submission
procedures. If all completed permits, authorizations, and all necessary
information are not available by the time MARAD must either approve or
deny the application, the applicant will be required to obtain all
outstanding permits or authorizations as a condition of the license, as
applicable. Examples of relevant Federal permits and authorizations may
include, but are not limited to:
(1) National Pollutant Discharge Elimination System (NPDES) permit
under Section 402 of the Clean Water Act;
(2) Section 401 Water Quality Certification under the Clean Water
Act;
(3) Section 404 permit under the Clean Water Act;
(4) Title V permit under the Clean Air Act;
(5) New Source Review minor source permit under the Clean Air Act;
(6) Section 10 permit under the Rivers and Harbors Act;
(7) Section 408 authorization under the Rivers and Harbors Act; and
(8) Coastal Zone Consistency Certification under the Coastal Zone
Management Act. This certification must include the following:
(i) The statement: ``The proposed activity complies with the
enforceable policies of [Name of Affected State]'s approved Coastal
Management Program and will be conducted in a manner consistent with
such program'';
(ii) A copy of the environmental evaluation required by section
248.5(y) of this part; and
(iii) The applicant must also furnish to the appropriate agency of
each State where the proposed project may affect a coastal use or
resource, a copy of the certification requesting concurrence with the
consistency certification. Complete procedures for providing data for
the consistency certification are specified at 15 CFR part 930, subpart
D.
(bb) 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.
(cc) Sworn statement. A declaration that conforms to the
requirements of 28 U.S.C. 1746.
(dd) MARPOL requirements for certification as Reception Facility
for Oil, Noxious Liquid Substances, and Garbage. An application for a
Certificate of Adequacy (COA) as defined in 33 CFR ch. I, subch. ONN or
a written waiver justifying why compliance with the International
Convention for the Prevention of Pollution from Ships, 1973, as
modified by the Protocol of 1978 relating to that Convention, and as
further modified by the Protocol of 1997 or MARPOL, is unreasonable or
impracticable.
Sec. 248.6 What additional information may be required?
(a) MARAD may require the applicant, or the applicant's affiliates
to submit any additional analysis, explanation, or other information
MARAD deems necessary to process the application;
(b) MARAD may require the applicant, or the applicant's affiliates,
to make available for MARAD examination, under oath or for interview,
persons having, or believed to have, necessary information;
(c) If information under paragraph (a) or (b) of this section is
required, MARAD, with input from the applicant, will set a time by
which the required information must be provided to meet the Act's
timeline for processing the application. If the applicant is unable to
provide the information under paragraph (a) or (b) by the specified
time, the applicant may request that MARAD grant a suspension of the
timeline for processing the application to provide the applicant
additional time to submit the required information;
(d) The timeline for MARAD's review of an application under the Act
will be extended by the total number of days that the timeline is
suspended under paragraph (c) of this section. If the applicant does
not provide the required information within the timeline provided in
the Act for processing the application, then MARAD will deny the
application based on the lack of sufficient information for MARAD to
process the application;
(e) An applicant that receives a request under paragraphs (a) or
(b) above may submit to MARAD a request for a meeting with appropriate
MARAD personnel and representatives of any cooperating Federal agency
determined by MARAD to be relevant with respect to the application,
including such officials as are appropriate, to provide the applicant
technical assistance, status, process, and timeline updates and
additional information as necessary. MARAD will hold a meeting not
later than 30 days after the date on which MARAD receives an
applicant's request.
Sec. 248.7 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
request that MARAD obtain from the applicant information not specified
by this subchapter;
(b) Requests must state briefly why the information is needed;
(c) MARAD must receive the request prior to the closing dates for
the comment periods for scoping and, where appropriate, the
environmental impact statement. MARAD will consider the request before
making a final decision on whether to approve the license application.
(d) MARAD 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
[[Page 69782]]
will result in an undue delay in the application process.
(e) MARAD may discuss the request with the requesting person and
the applicant prior to determining whether to obtain the requested
information.
Sec. 248.8 How do I prepare my application?
(a) MARAD encourages prospective applicants to confer with MARAD
concerning requirements contained in this part for the preparation of
an application or the requirements of this part.
(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 MARAD; or
(3) Current information contained in a tariff, report, or other
document previously filed for public record with the Securities and
Exchange Commission or other Federal agency, if:
(i) A certified true and complete copy of the document is attached
to each copy of the application as required by section 248.9(a) of this
part;
(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.
Sec. 248.9 How many copies of the application must I send and where
must I send them?
Send the following copies of the application:
(a) One printed copy and one electronic version in a format
approved by MARAD to MARAD, 1200 New Jersey Avenue SE, Washington, DC
20590; and
(b) MARAD may require additional printed and electronic copies for
distribution to Federal, Tribal, and State regulatory agencies involved
in reviewing the application in accordance with the requirements of
each agency.
Sec. 248.10 What are the application fees?
(a) The applicant must submit a non-refundable 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 any
additional costs associated with the processing of an application.
MARAD will 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
and additional environmental analysis, are due when they are assessed,
and must be paid by the applicant prior to commencing operation of the
deepwater port; and
(d) Application fees and additional costs assessed under this
section must be made payable to the United States Treasury and
submitted to MARAD.
C--Processing Applications
Sec. 248.11 How are documents related to the application maintained?
(a) MARAD maintains a 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; and
(3) Copies of applicable NEPA 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), MARAD:
(1) Prevents the information in the document from being disclosed,
unless MARAD 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.
Sec. 248.12 How and where may I view docketed documents?
(a) All material in a docket under section 248.11 of this part is
available to the public for inspection and copying at MARAD at the
address under ``MARAD'' in section 248.4 of this part, except for:
(1) Contracts under 33 U.S.C. 1504(c)(2)(B) for the construction or
operation of a deepwater port;
(2) Material designated under paragraph (b) of this section as a
trade secret, personally identifiable information, or commercial or
financial information that is claimed to be privileged or confidential;
and
(3) information protected from disclosure under 5 U.S.C. 552.
(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 248.18 of this part contains
procedures for objecting to these claims; and
(c) Docketed material for each deepwater port project is also
available to the public electronically at the Federal Docket website at
<a href="http://www.regulations.gov">www.regulations.gov</a>.
Sec. 248.13 How is the application processed?
MARAD processes each application and publishes the notice of
application under 33 U.S.C. 1504(c) in the Federal Register. Upon
publication of a Notice of Application, MARAD delivers copies of the
application to:
(a) Each Federal agency with jurisdiction over any aspect of
ownership, construction, or operation of deepwater ports; and
(b) Each Adjacent Coastal State, including relevant State and
Tribal agencies in those Adjacent Coastal States.
Sec. 248.14 What must I do if I need to change my application?
(a) If at any time before MARAD approves or denies an application,
the information in it changes, becomes incomplete, or becomes
inaccurate, the applicant must promptly submit the changes, additional
information, or necessary corrections in the manner set forth in
section 248.9 of this part.
(b) MARAD may determine that the change or required information is
of such magnitude that it warrants submission of an amended
application. MARAD will review the proposed change and determine if the
change is of such a magnitude as to require additional environmental
evaluation, pursuant to NEPA and the Department of Transportation's
``Procedures for Considering Environmental Impacts.''
Sec. 248.15 How do I withdraw my application?
The applicant may terminate the application proceeding by
delivering or mailing notice of withdrawal of its application to MARAD.
Sec. 248.16 May I resubmit my application?
(a) With the approval of MARAD, an applicant may resubmit a
previously withdrawn application in accordance with subpart B of this
part. MARAD may waive such subpart B requirements as MARAD deems
appropriate.
(b) A resubmitted application is considered a new licensing
proceeding
[[Page 69783]]
for purposes of the statutory timelines set forth in the Act.
Sec. 248.17 What if a port has plans for a deep draft channel and
harbor?
(a) If a State port will be connected directly by pipeline to a
proposed deepwater port, and has existing plans for a deep draft
channel and harbor, a representative of the State port may request a
determination under 33 U.S.C. 1503(d);
(b) The request must be sent, in writing, to MARAD within 30 days
after the date that the Notice of Application for the deepwater port is
published in the Federal Register; and
(c) The request must contain:
(1) A signature of the highest official of the State 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 State port has an active study by the
Secretary of the Army for the construction of a deep draft channel and
harbor, or that the State 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 State port 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
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.
(5) A statement whether the State port seeks a determination that
the proposed deepwater port best serves the national interest.
Sec. 248.18 How do I claim, or object to a claim of privileged
information?
(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 MARAD in writing,
with sufficient specificity to identify the information at issue, and
to show why it should or should not be considered privileged;
(c) MARAD will determine whether to grant or deny a claim of
privilege; and
(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.
D--Public Hearings or Meetings
Sec. 248.19 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) MARAD will publish in the Federal Register notices of public
hearings or of meetings, 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; and
(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.
Sec. 248.20 How is a public hearing or meeting reported?
(a) After completion of a public hearing or meeting, the presiding
officer must forward a report on the hearing or meeting to MARAD for
docketing;
(b) The report must contain the following information:
(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 will
announce the information that the report must contain.
E--Formal Hearings
Sec. 248.21 What if a formal evidentiary hearing is necessary?
After all public meetings under section 248.19 of this part are
concluded, MARAD will consider whether there are one or more specific
and material factual issues that may be resolved by a formal
evidentiary hearing. If MARAD determines that a formal evidentiary
hearing is necessary, the hearing will be conducted in accordance with
5 U.S.C. 554, following procedures prescribed by MARAD.
F--Approval or Denial of the Application
Sec. 248.22 What is the timeline for approving or denying an
application?
(a) The Act provides timelines for action on a license application.
Applicants may request that MARAD suspend the application processing
timeline as described in section 248.6 of this part.
(b) The timeline for action on a license application includes
publishing a notice of application. A notice of application is
published after it has been determined that the application contains
sufficient material for processing the application. MARAD must conduct
a public hearing in each Adjacent Coastal State within 240 days of
publishing the notice.
(c) At the completion of the NEPA review, when an EIS is determined
to be required, MARAD will publish a notice of availability of the
final environmental impact statement in the Federal Register.
(d) MARAD will hold a final public hearing on the license
application in each Adjacent Coastal State. MARAD issues a 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 deepwater port, or meet the requirements of other agencies.
Sec. 248.23 How may Federal agencies and States participate in the
application process?
(a) Under section 248.13 of this part, Federal agencies and
Adjacent Coastal States are sent copies of the application. The
agencies and States are encouraged to begin submitting their comments
on the application at that time;
(b) To be considered, comments from Federal agencies and Adjacent
Coastal States must be received by MARAD within 45 days after the close
of the public hearing period specified in section 248.19 of this part.
MARAD reviews the comments received;
[[Page 69784]]
(c) Comments should identify problems, if any, and suggest possible
solutions; and
(d) MARAD will accept approvals or disapprovals from the Governors
of adjacent coastal states only during the 45-day period following the
close of the application's final public hearing. Submissions made
before the hearing concludes will not be accepted. If the Governor
fails to transmit his or her approval or disapproval to MARAD not later
than 45 days after the last public hearing, approval will be
conclusively presumed.
Sec. 248.24 What are the criteria for approval or denial of an
application?
MARAD may approve an application if:
(a) MARAD determines that the applicant is (i) financially able to
construct, own, operate, and decommission the proposed deepwater port;
and (ii) meets the oil pollution liability financial responsibility
requirements of 33 U.S.C. 2716;
(b) MARAD determines that the applicant can and will comply with
applicable laws, regulations, and license conditions;
(c) MARAD determines that the construction and operation of the
deepwater port will be in the national interest and consistent with
national security and other national policy goals and objectives,
including energy sufficiency and environmental quality;
(d) MARAD determines that the deepwater port will not unreasonably
interfere with international navigation or other reasonable uses of the
high seas, as defined by treaty, convention, or customary international
law;
(e) MARAD determines that the applicant has demonstrated that the
deepwater port will be constructed and operated using best available
technology, so as to prevent or minimize adverse impact on the marine
environment;
(f) MARAD has not been informed, within 45 days of the last public
hearing on a proposed license for a designated application area, by the
Administrator of the Environmental Protection Agency that the deepwater
port will not conform with all applicable provisions of the Clean Air
Act, as amended [42 U.S.C. 7401 et seq.], the Federal Water Pollution
Control Act, as amended [33 U.S.C. 1251 et seq.], or the Marine
Protection, Research and Sanctuaries Act, as amended [16 U.S.C. 1431 et
seq., 1447 et seq.; 33 U.S.C. 1401 et seq., 2801 et seq.];
(g) MARAD has consulted with the Secretary of the Army, the
Secretary of State, the Secretary of Homeland Security, and the
Secretary of War, to determine their views on the adequacy of the
application, and its effect on programs within their respective
jurisdictions;
(h) the Governor of each Adjacent Coastal State approves, or is
presumed to approve, the issuance of the license; and
(i) the Adjacent Coastal State to which the deepwater port is to be
directly connected by pipeline has developed, or is making, at the time
the application is submitted, reasonable progress toward developing, an
approved coastal zone management program pursuant to the Coastal Zone
Management Act of 1972 [16 U.S.C. 1451 et seq.].
Sec. 248.25 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(i), only one
application is approved. Unless one port clearly best serves the public
interest, the Secretary will issue the license according to the
following order of priorities:
(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 neither engaged in producing, refining, or
marketing oil nor an affiliate of a person engaged in producing,
refining, or marketing oil; and then
(3) Any other applicant.
(b) In determining whether a port best serves the national
interest, MARAD will consider:
(1) The degree to which each deepwater port will affect the
environment, as determined under the review criteria in subpart K 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
deepwater ports that would be passed on to consumers of oil.
(c) This section does not apply to applications for natural gas
deepwater ports.
Sec. 248.26 When may the application process be stopped and an
application be treated as withdrawn?
(a) MARAD may consider an application as withdrawn before the
application is approved or denied if:
(1) The application is withdrawn before MARAD approves it;
(2) The application is incomplete, and the applicant does not
respond to a request by MARAD for further information, as per section
248.6 of this part; or
(3) The applicant fails to provide information necessary, in a
timely fashion, to complete an environmental impact statement, which is
normally required for a project application.
(b) MARAD will provide written notice to the applicant of an action
taken under this section.
G--Licenses
Sec. 248.27 What is included in a deepwater port license?
A deepwater port license contains information about the licensee
and the deepwater port, and any conditions that may be described by
MARAD in the license. Licenses are issued in conformance with the Act,
and with rules and policies of MARAD that implement the Act.
Sec. 248.28 Who may consult with MARAD on developing the proposed
conditions of a license?
Federal agencies, the Adjacent Coastal States, and the owner of the
deepwater port may consult with MARAD on the conditions of the license
being developed under 33 U.S.C. 1503(e).
Sec. 248.29 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.
Sec. 248.30 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 subch; and
(b) The owner must submit a request for an amendment, transfer, or
reinstatement to MARAD.
Sec. 248.31 How is a license enforced, suspended, or revoked?
MARAD may enforce, suspend, or revoke a license under 33 U.S.C.
1511(a) if the licensee fails to comply with any applicable provision
of the Act, any applicable rule, regulation, or restriction, or if the
licensee fails to comply with a condition stated clearly in the
license.
Sec. 248.32 How soon after deepwater port decommissioning must the
licensee initiate removal?
Within two years of deepwater port decommissioning, the licensee
must
[[Page 69785]]
initiate removal procedures. MARAD will advise and coordinate with
appropriate Federal agencies and the States concerning activities
covered by this section.
H--Site Evaluation and Pre-Construction Testing
Sec. 248.33 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 Outer Continental Shelf;
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 section 248.5 of this part.
Sec. 248.34 What are the procedures for notifying MARAD 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 MARAD at least 30 days before the beginning
of the evaluation or testing. MARAD 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.
Sec. 248.35 What are the conditions for conducting site evaluation
and pre-construction testing?
(a) No person may conduct site evaluation or 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 section 248.33(a) of this part.
Sec. 248.36 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 MARAD:
(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 Outer Continental
Shelf;
(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 MARAD 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 MARAD on a case-by-case
basis.
Sec. 248.37 When may MARAD suspend or prohibit site evaluation or
pre-construction testing?
(a) MARAD 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) MARAD will consult with the applicant on measures to remove the
cause for suspension.
(c) MARAD may lift a suspension after the applicant assures MARAD
that the activity will no longer cause the threat on which the
suspension was based.
I--Exemption From or Adjustments to Requirements
Sec. 248.38 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 MARAD; and
(c) MARAD may require the petition to provide an alternative to the
requirement.
Sec. 248.39 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,
MARAD forwards the petition to the Governor of the State for the
Governor's recommendation.
[[Page 69786]]
Sec. 248.40 When is an exemption allowed?
MARAD may allow an exemption if it 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.
J--Oil Pollution Act of 1990 Limits of Liability for Deepwater Ports
Sec. 248.41 Where can I find the Oil Pollution Act of 1990 (OPA 90)
limits of financial liability for deepwater ports?
(a) The OPA 90 limits of liability for deepwater ports are set
forth in 33 CFR ch. I, subch. M. The limits of liability in that
subchapter are adjusted periodically for significant increases in the
Consumer Price Index, in accordance with 33 U.S.C. 2704(d)(4) and the
procedures in 33 CFR ch. I, subch. M; and;
(b) The limits of liability may also be adjusted under 33 U.S.C.
2704(d)(2) and the procedures in 33 CFR ch. I, subch. NN.
Sec. 248.42 What are the procedures under OPA 90 for adjusting a
deepwater port's limit of liability under 33 U.S.C. 2704(d)(2)?
(a) Upon an applicant's or licensee's request, USCG may lower the
generally applicable OPA 90 limit of liability for deepwater ports in
33 CFR ch. I, subch. NN. USCG may do so under 33 U.S.C. 2704(d)(2) on a
port by-port-basis.
(b) Requests to adjust the limit of liability for a deepwater port
must be submitted to USCG. Requests to adjust the limits of liability
may be submitted with a license application or upon receipt of a
license from MARAD to construct and operate the proposed deepwater
port. If the request for adjustment is submitted with the license
application, no action will be taken on the request until MARAD issues
a license to construct and operate the proposed deepwater port.
K--Environmental Review Criteria for Deepwater Ports
Sec. 248.43 How does the Deepwater Port Act interact with other
Federal and State laws?
(a) Nothing in this part 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
deepwater 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;
(3) The Department of the Interior; and
(4) State environmental agencies or permitting agencies.
Sec. 248.44 How will environmental evaluations be conducted?
Environmental evaluations conducted under this part will be limited
to the project that is the subject of the application and will not
typically analyze possible environmental effects from upstream and
downstream projects separate from that project or impacts beyond the
direct impacts of that project, unless required by law.
Sec. 248.45 What is determined by the environmental evaluation?
(a) The environmental criteria to be used in evaluating a license
application are established by consensus of experts, scientific
opinion, public interest, and institutional requirements, such as laws
and regulations established for the protection of the environment;
(b) Environmental criteria that may be established by future
environmental regulations and other requirements to protect the
environment may also be used to evaluate license applications; and
(c) The environmental criteria to be used in evaluating a license
application are applied to all relevant aspects of:
(1) The construction, operation, and decommissioning phases of a
deepwater port;
(2) The operations of the vessels that serve the deepwater port;
(3) The deepwater port's servicing and support activities;
(4) Shore-based construction and fabrication sites;
(5) Shoreside supporting facilities, if appropriate, for the
proposed deepwater port; and
(6) The No Action alternative and other reasonable alternatives.
Sec. 248.46 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 deepwater 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 action and
alternatives. Alternatives must consider alternate siting of the
deepwater port as well as different technologies and pipeline routes.
The evaluation will assess at the discretion of the agency and
consistent with the scope of the project, the following:
(1) The impacts on the environment, including but not limited to:
(i) Soil, Geology, Seismicity
(ii) Coastal Zone
(iii) Air Quality
(iv) Hazardous Materials
(v) Noise and Vibration
(vi) Public Service and Utilities
(vii) Water Quality
(viii) Surface Water and Groundwater
(ix) Wetlands and Waters of the US
(x) Floodplains
(xi) Stormwater
(xii) Threatened & Endangered Species and Critical Habitat
(xiii) Essential Fish Habitat
(xiv) Historic Preservation and Tribal Resources
(xv) Traffic and Safety
(xvi) Terrestrial Wildlife
(xvii) Vegetation
(xviii) Land Use and Visual Impacts
(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.
Sec. 248.47 How are these criteria reviewed and revised?
MARAD periodically reviews and may revise these criteria. Reviews
and revisions are conducted in accordance with section 248.44 of this
part. The criteria established are consistent with NEPA.
Sec. 248.48 What environmental conditions must be satisfied?
(a) MARAD may issue a license to construct a deepwater port under
the
[[Page 69787]]
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 deepwater port and the vessels and crews calling at the
deepwater port; and
(2) Under the environmental review criteria in section 248.46 of
this part, the applicant has demonstrated that the deepwater port will
be constructed, operated, and decommissioned using the best available
technology to prevent or minimize adverse impacts on the environment.
(b) Under 33 U.S.C. 1504(f), the criteria in section 248.46 of this
part must be considered in the preparation of a single detailed
environmental impact statement for all timely applications covering a
single application area. In addition, 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; and
(c) In accordance with the Department of Transportation's
``Procedures for Considering Environmental Impacts,'' \3\ MARAD will
prepare a supplemental NEPA analysis if there are substantial changes
to the proposed action relevant to environmental or safety concerns,
or, in MARAD's discretion, substantial new circumstances or information
about the significance of the adverse environmental impacts bearing on
the deepwater port and related activities affecting its location,
construction, operation or decommissioning.
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\3\ DOT Order, 5610.1D, DOT's Procedures for Considering
Environmental Impacts, July 1, 2025: <a href="https://www.transportation.gov/mission/dots-procedures-considering-environmental-impacts">https://www.transportation.gov/mission/dots-procedures-considering-environmental-impacts</a>.
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Sec. 248.49 How is an environmental review conducted?
The environmental review of a proposed deepwater port and a
reasonable range of alternatives consists of Federal, Tribal, and State
review of the following two parts:
(a) An evaluation of the proposal's completeness of environmental
information and quality of assessment including, but not limited to,
geographic relevance, age of data used (generally no more than five
years at the time of submission) and methods of data analysis, 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 sections 248.51 through
248.56 of this part.
Sec. 248.50 What are the siting criteria?
In accordance with section 248.50 of this part, 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 deepwater port, its components, and
tankers calling at the deepwater 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 deepwater port, its
components, and critical habitats including, but not limited to,
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.
Sec. 248.51 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 section 248.53 of this part.
Sec. 248.52 What are the design, construction, and operational
criteria?
In accordance with section 248.50 of this part, the deepwater port
proposal and a reasonable range of 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.
[[Page 69788]]
Sec. 248.53 What are the land use and coastal zone management
criteria?
In accordance with section 248.50 of this part, the deepwater port
proposal and a reasonable range of 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 as described in section
248.5(aa) of this part;
(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.
Sec. 248.54 What are other critical criteria that must be evaluated?
In accordance with section 248.50 of this part, the deepwater port
proposal and a reasonable range of 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; and
(d) 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.
Sec. 248.55 What environmental statutes must an applicant follow?
In constructing and operating a deepwater port, the deepwater port
must comply with all applicable Federal, State, and Tribal
environmental statutes and regulations. For the purposes of
information, a list of Federal environmental statutes that may apply
includes but is not limited to: Abandoned Shipwreck Act of 1987 (ASA),
Public Law 100-298, 43 U.S.C. 2101, et seq.; American Indian Religious
Freedom Act (AIRFA), Public Law 95-341, 42 U.S.C. 1996, et seq.;
Antiquities Act of 1906, Public Law 59-209, 54 U.S.C. 320301, et seq.;
Archeological and Historic Preservation Act of 1974 (AHPA), Public Law
93-291, 54 U.S.C. 312501, et seq.; Archeological Resources Protection
Act of 1979 (ARPA), Public Law 96-95, 16 U.S.C. 470aa, et seq.;
Architectural Barriers Act of 1968 (ABA), Public Law 90-480, 42 U.S.C.
4151, et seq.; Clean Air Act of 1977 (CAA), Public Law 88-206, 42
U.S.C. 7401, et seq.; Clean Water Act of 1977 (CWA), Public Law 95-217,
33 U.S.C. 1251, et seq.; Coastal Barrier Resources Act (CBRA), Public
Law 97-348, 16 U.S.C. 3510, et seq.; Coastal Zone Management Act
(CZMA), Public Law 92-583, 16 U.S.C. 1451, et seq.; Community
Environmental Response Facilitation Act (CERFA), Public Law 102-426, 42
U.S.C. 9620; Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), also commonly referred to as Superfund,
Public Law 96-510, 42 U.S.C. 9601, et seq.; Department of
Transportation Act, section 4(f), Public Law 89-670, 49 U.S.C. 303 and
23 U.S.C. 138; Emergency Planning and Community Right-to-Know Act
(EPCRA), Public Law 99-499, 42 U.S.C. 11001, et seq.; Endangered
Species Act of 1973 (ESA), Public Law 93-205, 16 U.S.C. 1531, et seq.;
Environmental Quality Improvement Act of 1970, Public Law 91-224, 42
U.S.C. 4371, et seq.; Farmlands Protection Policy Act (FPPA), Public
Law 97-98, 7 U.S.C. 4201, et seq.; Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA), Public Law 80-104, 7 U.S.C. 136, et seq.; Fish
and Wildlife Act of 1956, Public Law 84-1024, 16 U.S.C. 742, et seq.;
Fish and Wildlife Coordination Act (FWCA), Public Law 85-624, 16 U.S.C.
661, et seq.; Flood Disaster Protection Act of 1973 (FDPA), Public Law
93-234, 42 U.S.C. 4002, et seq.; Historic Sites Act of 1935, Public Law
74-292, 54 U.S.C. 320101, et seq.; Magnuson-Stevens Fishery
Conservation and Management Act (MSFCMA or MSA), Public Law 94-265, 16
U.S.C. 1801, et seq.; Marine Mammal Protection Act of 1972 (MMPA),
Public Law 92-522, 16 U.S.C. 1361, et seq.; Marine Protection,
Research, and Sanctuaries Act of 1972, Public Law 92-532, 16 U.S.C.
1431, et seq. and 33 U.S.C. 1401, et seq.; Migratory Bird Treaty Act
(MBTA), Public Law 65-186, 16 U.S.C. 703, et seq.; NEPA, Public Law 91-
190, 42 U.S.C. 4321, et seq.; National Historic Preservation Act of
1966 (NHPA), Public Law 89-665, 16 U.S.C. 470, et seq.; Native American
Graves Protection and Repatriation Act (NAGPRA), Public Law 101-601, 25
U.S.C. 3001, et seq.; Noise Control Act of 1972, Public Law 92-574, 42
U.S.C. 4901, et seq.; Pollution Prevention Act of 1990 (PPA), Public
Law 101-508, 42 U.S.C. 13101, et seq.; Resource Conservation and
Recovery Act of 1976 (RCRA), Public Law 94-580, 42 U.S.C. 6901, et
seq.; Rivers and Harbors Act of 1899 (RHA), 30 Stat. 1151, 33 U.S.C.
403; Safe Drinking Water Act (SDWA), Public Law 93-523, 42 U.S.C. 300f,
et seq.; Toxic Substances Control Act (TSCA), Public Law 94-469, 15
U.S.C. 2601, et seq.; and Wild and Scenic Rivers Act, Public Law 90-
542, 16 U.S.C. 1271, et seq.
By Order of the Maritime Administrator.
T. Mitchell Hudson, Jr.,
Secretary, Maritime Administration.
[FR Doc. 2026-22617 Filed 11-4-26; 8:45 am]
BILLING CODE 4910-81-P
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</html>Indexed from Federal Register on November 5, 2026.
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