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).

Unless otherwise specified, the owner of a deepwater port is responsible for compliance with the requirements of this part.

(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.

(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: ( printed 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 °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 ( printed 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

(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:

AFFIDAVIT OF U.S. CITIZENSHIP

State of___)

) ss.:

County of ___) ( printed 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, ( printed 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: ( printed 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. ( printed 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.

(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.

(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 ( printed 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.

(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.

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.

(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

(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.

(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 www.regulations.gov.

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.

(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.”

The applicant may terminate the application proceeding by delivering or mailing notice of withdrawal of its application to MARAD.

(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 ( printed page 69783) for purposes of the statutory timelines set forth in the Act.

(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.

(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

(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.

(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

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

(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.

(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; ( printed 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.

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.].

(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.

(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

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.

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).

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.

(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.

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.

Within two years of deepwater port decommissioning, the licensee must ( printed 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

(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.

(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.

(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.

(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.

(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

(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.

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.

( printed page 69786)

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

(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.

(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

(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.

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.

(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.

(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.

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.

(a) MARAD may issue a license to construct a deepwater port under the ( printed 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.

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.

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.

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.

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.

( printed page 69788)

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.

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.

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.