Reconsideration of Letters of Recommendation for Waterfront Facilities Handling LNG and LHG, 78188-78193 [2011-32257]

Download as PDF 78188 Federal Register / Vol. 76, No. 242 / Friday, December 16, 2011 / Proposed Rules 33°36′06.5″ N., longitude 117°53′16.3″ W.; returning to latitude 33°36′07.4″ N., longitude 117°53′19.2″ W. (k) Area A–11. The entire water area within beginning at latitude 33°36′04.7″ N., longitude 117°53′01.9″ W.; thence to latitude 33°36′06.1″ N., longitude 117°53′00.5″ W.; thence to latitude 33°36′06.2″ N., longitude 117°52′59.0″ W.; thence to latitude 33°35′59.4″ N., longitude 117°52′51.1″ W.; thence to latitude 33°35′57.5″ N., longitude 117°52′50.9″ W.; thence to latitude 33°36′01.9″ N., longitude 117°52′57.3″ W.; thence to latitude 33°36′03.0″ N., longitude 117°53′00.4″ W.; returning to latitude 33°36′04.7″ N., longitude 117°53′01.9″ W. (l) Area A–12. The entire water area within beginning at latitude 33°36′27.9″ N., longitude 117°54′40.4″ W.; thence to latitude 33°36′23.9″ N., longitude 117°54′41.8″ W.; thence to latitude 33°36′20.8″ N., longitude 117°54′29.9″ W.; thence to latitude 33°36′28.5″ N., longitude 117°54′20.2″ W.; returning to latitude 33°36′27.9″ N., longitude 117°54′40.4″ W. (m) Area B–1. The entire water area within beginning at latitude 33°36′35.1″ N., longitude 117°54′28.8″ W.; thence to latitude 33°36′32.1″ N., longitude 117°54′22.1″ W.; thence to latitude 33°36′30.6″ N., longitude 117°54′22.8″ W; thence to latitude 33°36′30.5″ N., longitude 117°54′30.9″ W.; returning to latitude 33°36′35.1″ N., longitude 117°54′28.8″ W. Note: These anchorage areas are reserved for recreational and other small craft. Local law, including the City of Newport Beach Municipal Code 17.25.020, may provide for fore and aft moorings for recreational and small craft of such size and alignment as permitted by the harbor master. § 110.212 [Removed and Reserved] 3. Remove and reserve § 110.212. Dated: December 2, 2011. J.R. Castillo, Rear Admiral, U.S. Coast Guard, District Eleven Commander. [FR Doc. 2011–32253 Filed 12–15–11; 8:45 am] jlentini on DSK4TPTVN1PROD with PROPOSALS BILLING CODE 9110–04–P VerDate Mar<15>2010 16:22 Dec 15, 2011 Jkt 226001 DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 127 [Docket No. USCG–2011–0227] RIN 1625–AB67 Reconsideration of Letters of Recommendation for Waterfront Facilities Handling LNG and LHG Coast Guard, DHS. Notice of proposed rulemaking. AGENCY: ACTION: This proposed rule would clarify the role and purpose of the Letter of Recommendation (LOR) issued by the Coast Guard Captain of the Port regarding the suitability of a waterway for liquefied natural gas (LNG) or liquefied hazardous gas (LHG) marine traffic. It also proposes a separate process for reconsideration of LORs by the Coast Guard. The proposed process, if finalized, would apply only to LORs issued after the effective date of the rule. DATES: Comments and related material must either be submitted to our online docket via http://www.regulations.gov on or before March 15, 2012 or reach the Docket Management Facility by that date. ADDRESSES: You may submit comments identified by docket number USCG– 2011–0227 using any one of the following methods: (1) Federal eRulemaking Portal: http://www.regulations.gov. (2) Fax: (202) 493–2251. (3) Mail: Docket Management Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590– 0001. (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is (202) 366–9329. To avoid duplication, please use only one of these four methods. See the ‘‘Public Participation and Request for Comments’’ portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments. FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed rule, call or email Ken Smith (CG–5222), U.S. Coast Guard; telephone (202) 372– 1413, email Ken.A.Smith@uscg.mil. If you have questions on viewing or submitting material to the docket, call Ms. Renee V. Wright, Program Manager, Docket Operations, telephone (202) 366–9826. SUMMARY: PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 SUPPLEMENTARY INFORMATION: Table of Contents for Preamble I. Public Participation and Request for Comments A. Submitting Comments B. Viewing Comments and Documents C. Privacy Act D. Public Meeting II. Abbreviations III. Background IV. Discussion of Proposed Rule A. Proposed Revisions to § 127.009 B. Proposed Addition of § 127.010 V. Regulatory Analyses A. Regulatory Planning and Review B. Small Entities C. Assistance for Small Entities D. Collection of Information E. Federalism F. Unfunded Mandates Reform Act G. Taking of Private Property H. Civil Justice Reform I. Protection of Children J. Indian Tribal Governments K. Energy Effects L. Technical Standards M. Environment I. Public Participation and Request for Comments We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http:// www.regulations.gov and will include any personal information you have provided. A. Submitting Comments If you submit a comment, please include the docket number for this rulemaking (USCG–2011–0227), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. We recommend that you include your name and a mailing address, an email address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. To submit your comment online, go to http://www.regulations.gov, and type ‘‘USCG–2011–0227’’ in the ‘‘Keyword’’ box. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change this proposed rule based on your comments. E:\FR\FM\16DEP1.SGM 16DEP1 Federal Register / Vol. 76, No. 242 / Friday, December 16, 2011 / Proposed Rules B. Viewing Comments and Documents To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, click on the ‘‘read comments’’ box, which will then become highlighted in blue. In the ‘‘Enter Keyword or ID’’ box insert ‘‘USCG–2011–0227’’ and click ‘‘Search.’’ Click the ‘‘Open Docket Folder’’ in the ‘‘Actions’’ column. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12–140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility. C. Privacy Act Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316). D. Public Meeting We do not now plan to hold a public meeting, but you may submit a request for one to the docket using one of the methods specified under ADDRESSES. In your request, explain why you believe a public meeting would be beneficial. If we determine that a public meeting would aid this rulemaking, it will hold one at a time and place announced by a later notice in the Federal Register. II. Abbreviations jlentini on DSK4TPTVN1PROD with PROPOSALS CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register LHG Liquefied hazardous gas LNG Liquefied natural gas LOR Letter of Recommendation PWSA Ports and Waterways Safety Act of 1972, as amended (33 U.S.C. 1221 et seq.) § Section symbol U.S.C. United States Code III. Background Under existing regulations contained in 33 CFR part 127, an owner or operator intending to build a new waterfront facility handling liquefied natural gas (LNG) or liquefied hazardous gas (LHG), or planning new construction to expand or modify marine terminal operations in an existing facility that VerDate Mar<15>2010 19:10 Dec 15, 2011 Jkt 226001 would result in an increase in the size and/or frequency of LNG or LHG marine traffic on the waterway associated with the proposed facility or modification to an existing facility, must submit a letter of intent to the Captain of the Port (COTP) of the zone in which the facility is or will be located. The COTP then issues a Letter of Recommendation (LOR) as to the suitability of the waterway for LNG or LHG marine traffic related to the facility. The LOR is intended to provide an expert, unbiased recommendation as to whether the waterway and port infrastructure can safely and securely support the anticipated increase in maritime traffic associated with the new or modified facility. Prior to May 2010, the COTP issued the LOR to the owner or operator of the facility as well as to the State and local government agencies with jurisdiction, but the Coast Guard changed that process in a rule updating the letter of intent and LOR regulations (75 FR 29420, Revision of LNG and LHG Waterfront Facility General Requirements). Currently, the Coast Guard issues the LOR to the Federal, State, or local government agency having jurisdiction for siting, construction, and operation of the waterfront facility (referred to in this document as the ‘‘jurisdictional agency’’), and sends a copy to the owner or operator of the proposed facility. Several issued LORs have invited the recipient to request reconsideration of the LOR pursuant to 33 CFR 127.015, which provides that ‘‘[a]ny person directly affected by an action taken under this part may request reconsideration by the Coast Guard officer responsible for that action.’’ The process set forth in § 127.015 is the same that an owner or operator would use to appeal agency actions described elsewhere in Part 127, such as a COTP’s Order to suspend operations. The use of § 127.015 to request reconsideration of LORs, however, has led to confusion about the nature and proper role of the LOR. This is in part because the words ‘‘action’’ and ‘‘final agency action’’ in § 127.015 create confusion as to whether the LOR is an agency action for purposes of the Administrative Procedure Act (5 U.S.C. 551 et seq.). While we believe LORs should be subject to intra-agency review, we did not intend to suggest that an LOR is an agency action or that it conveys a right or obligation. The LOR is not an agency action as that term is defined by the Administrative Procedure Act or understood in the context of enforceable legal actions. To constitute agency action for purposes of the PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 78189 Administrative Procedure Act, an activity must constitute, in whole or in part, an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act (5 U.S.C. 551(13)). The LOR is none of these. The LOR neither entitles nor forbids an owner or operator to construct or modify an LNG or LHG facility—the Coast Guard has no authority to site or license waterfront facilities handling LNG or LHG. Rather, the Coast Guard provides its LOR to an agency that does have that authority—the jurisdictional agency—to inform that agency’s review of the siting, construction, or operation of a facility. The LOR is a recommendation, and is not legally enforceable on or by any agency or person, including the Coast Guard. The Coast Guard does take agency action with respect to LNG and LHG facilities when it enforces its rules addressing the operation, maintenance, personnel training, firefighting, and security of the marine transfer area of waterfront facilities that handle LNG or LHG cargos. The Coast Guard COTP also may issue a COTP Order directing vessel operations, and although such an Order would be directed to the vessel’s owner or operator, it could impact the operation of an LNG or LHG facility. Enforcement of these Coast Guard regulations constitutes agency action, follows administrative processes set out in Coast Guard regulations, and may be appealed in court at the completion of the administrative processes. For example, a Coast Guard action enforcing § 127.013, ‘‘Suspension of transfer operations,’’ may be appealed under § 127.015, and a COTP Order directing vessel operations under 33 CFR 160.111 may be appealed under 33 CFR 160.7. An LOR is unrelated to the enforcement described above. It is not a precursor to or a basis for COTP Orders or Part 127 enforcement. The LOR is only a recommendation providing the jurisdictional agency with the benefit of the Coast Guard’s expertise on waterway safety and security; it documents the COTP’s recommendation within another agency’s permitting or approval process. The authority to approve or disapprove the siting, construction, or modification of an LNG or LHG facility lies with the jurisdictional agency, and not with the Coast Guard.1 As discussed above, we believe that some of the past confusion regarding the 1 Similarly, the LOR may inform the analysis undertaken by the jurisdictional agency pursuant to the National Environmental Policy Act (NEPA), but issuing the LOR is not a major Federal action under NEPA because it is not the adoption of an official policy, formal plan, or program or the approval of a specific project. (See 40 CFR 1508.18.) E:\FR\FM\16DEP1.SGM 16DEP1 78190 Federal Register / Vol. 76, No. 242 / Friday, December 16, 2011 / Proposed Rules jlentini on DSK4TPTVN1PROD with PROPOSALS nature of LORs stems from the Coast Guard’s use of 33 CFR 127.015 for LOR reconsiderations. The process in § 127.015 is designed for appeals of agency actions taken under the authority of Part 127, and using that same process for internal reconsideration of LORs inadvertently caused confusion between the two. In particular, § 127.015 applies to ‘‘[a]ny person directly affected by an action taken under this part,’’ and using that language in reference to an unenforceable recommendation is inapt. The Coast Guard seeks to resolve the resulting confusion and, further, believes the process in § 127.015 is inappropriately complicated and lengthy in light of the LOR’s role as a recommendation to another agency in the context of that agency’s permitting process. The LOR is intended to inform the jurisdictional agency’s process, and therefore should be available early in that process. A reconsideration process that results in revisions to the LOR after the jurisdictional agency’s decision does not serve the purpose of the LOR. The purpose of the LOR is to assist the agencies having jurisdiction over the siting, construction, and operation of LNG and LHG facilities. The Ports and Waterways Safety Act of 1972, as amended (33 U.S.C. 1221 et seq.) (PWSA) authorizes the Secretary of the Department in which the Coast Guard is operating to implement regulations to, among other things, reduce the possibility of vessel or cargo loss, or damage to life, property, or the marine environment. See 33 U.S.C. 1231. The Secretary of Homeland Security delegated this authority to the Coast Guard (Department of Homeland Security Delegation 0170.1). Issuing LORs with regard to proposed new or modified LNG or LHG facilities is one of many methods by which the Coast Guard furthers its missions under the PWSA. To improve the existing process, we propose to clarify the purpose of LORs and revise procedures by which facility owners or operators and State or local governments in the vicinity of a facility may request reconsideration of an issued LOR. The proposed reconsideration procedures, if finalized, would apply only to LORs issued after the effective date of the rule. IV. Discussion of Proposed Rule We considered eliminating reconsideration of the LOR in order to avoid the confusion described above and eliminate procedural delay. We believe, however, that consistency and governmental transparency are best served if a defined set of stakeholders has the ability to ask the Coast Guard to VerDate Mar<15>2010 16:22 Dec 15, 2011 Jkt 226001 reconsider its recommendation. This is in keeping with past and current process under § 127.015, in which the Coast Guard has responded to requests for reconsideration from facility owners and operators, and State or local governments, as the practical analogue to ‘‘persons directly affected.’’ As discussed above, the existing process for reconsideration can create confusion and delay. We therefore propose to add a new § 127.010 to 33 CFR part 127 to provide a separate process for the reconsideration of LORs issued after the effective date of this rule. To facilitate the use of this new section, we also propose to revise § 127.009 to clarify the scope of the LOR and the persons who may request reconsideration. A. Proposed Revisions to § 127.009 We propose to renumber the existing text of § 127.009, such that all of the existing text would be contained in paragraph (a). We propose to then add a paragraph to § 127.009 explaining that an LOR is only a recommendation from the COTP to the jurisdictional agency, and does not constitute agency action for the purposes of § 127.015 or the Administrative Procedure Act. We also propose to indicate in this section that reconsideration of LORs would follow the process set forth in proposed § 127.010. To avoid disrupting any reconsiderations now in progress, and to prevent any perceived disadvantage to those who were issued an LOR indicating that reconsideration under § 127.015 was available, the Coast Guard would continue to process the reconsiderations of issued LORs under § 127.015. Only LORs issued after the effective date of any resulting final rule would follow the new process set out in proposed § 127.010. Processing issued LORs under § 127.015, however, does not alter the fact that all LORs are mere recommendations to the jurisdictional agency, and none are agency actions as outlined in the Administrative Procedure Act. As set forth in the proposed revision to § 127.009, the facility owner or operator could request reconsideration of the LOR, as could a State or local government in the vicinity of the facility. Other interested persons would submit comments and relevant information to the jurisdictional agency for that agency’s consideration during its permitting process. This is consistent both with the Coast Guard’s submission of its own recommendation to the jurisdictional agency for that agency’s consideration, and with the Coast Guard’s past and current practice of receiving requests for reconsideration PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 from a limited set of persons under § 127.015. In general, those interested in expressing their agreement or disagreement with the Coast Guard’s recommendation would submit their own comments and information to the jurisdictional agency, so that the agency can weigh all the information before it makes a decision. We believe, however, that it is important to provide for additional discussion with the facility owner or operator and the State or local governments in the vicinity of the facility. These entities possess unique information regarding safety and security issues affecting the facility and waterway. The facility owner or operator often is aware of, or even the source of, anticipated changes in vessel traffic, navigation obstructions, and other factors the Coast Guard considers in issuing the LOR. State and local governments play an important role in protecting public safety, and are essential in helping the Federal government plan and prepare for emergencies; they also may be aware of safety and security resources and challenges. Therefore, the proposed rule would provide an avenue for these entities to request that the Coast Guard reconsider its LOR. We invite the public to comment on the scope of this exception, and specifically on whether it should be extended in the final rule to additional categories of persons. If you provide comments on this topic, please explain the reasons for your comments. In addition to the above changes related to new § 127.010, we propose revising § 127.009(a)(5), the last item in the list of considerations the COTP takes into account when developing the LOR. The proposed revision is more specific than the current phrase, ‘‘[o]ther safety and security issues identified,’’ and more accurately reflects the COTP’s ability to consider a broad range of safety and security issues that may vary from waterway to waterway. B. Proposed Addition of § 127.010 As proposed in this new section, the reconsideration of an LOR would begin with the submission of a written request to the COTP who issued the LOR, describing why the COTP should reconsider his or her recommendation. The explanation would focus on the waterway safety and security topics set forth in §§ 127.007 and 127.009, as these describe the limited scope of the LOR. The person requesting reconsideration would send a copy of the request to the agency to which the LOR was issued, to inform the agency with jurisdiction for siting, construction, or operation of the E:\FR\FM\16DEP1.SGM 16DEP1 jlentini on DSK4TPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 242 / Friday, December 16, 2011 / Proposed Rules facility that the COTP has been asked to reconsider the LOR. The COTP would review the request and the LOR, and either confirm or revise the recommendation. The COTP would send either a written confirmation or a revised LOR to the jurisdictional agency, with copies to the requester and to the facility owner or operator. This would ensure that all those who received the original LOR, and the copy of the request for reconsideration, also receive the written confirmation or revised LOR. A facility owner or operator, or State or local government in the vicinity of the facility, who wished to request reconsideration of the revised LOR, could do so by following the same procedures for requesting reconsideration of the original LOR. Documents the Coast Guard provides to jurisdictional agencies concerning LOR requests for reconsideration and appeals are normally made available to the public through the jurisdictional agency’s docket management system. If the COTP confirms the recommendation after reconsideration, the person who requested reconsideration could seek the opinion of the COTP’s District Commander. The request would have to explain why the District Commander should review the COTP’s recommendation, and the requester must also send a copy to the jurisdictional agency to which the LOR was issued. The District Commander would review the LOR and associated documents, and either confirm the LOR or instruct the COTP to reconsider the LOR. As in the earlier stage, the District Commander would send a written notification to the jurisdictional agency, with copies to the requester and the facility owner or operator. The District Commander’s written confirmation would end the reconsideration process; the requester could not request review by another officer in the chain of command. We propose to limit reconsideration to the District Commander level because the COTP and the District Commander have the most expertise with the specific local waterway. If the District Commander instructed the COTP to reconsider the LOR, and that reconsideration resulted in a revised LOR, then a facility owner or operator, or State or local government in the vicinity of the facility, could request reconsideration of the revised LOR by following the same procedures for requesting the reconsideration of the original LOR. The proposed rule could result in more than one person requesting VerDate Mar<15>2010 16:22 Dec 15, 2011 Jkt 226001 reconsideration of an LOR, such that multiple reconsiderations would be ‘‘in progress’’ at one time. The Coast Guard would consolidate multiple requests when appropriate. We do not propose a specific timeline for submitting or processing requests, but in general we would expect to receive requests for reconsideration, if any, soon after issuing the LOR, and we would expect to resolve them as promptly as possible. The Coast Guard would not expect to continue to reconsider an LOR after the jurisdictional agency has reached its decision, even if the process described above has not run its course. As stated above, the LOR is intended to inform the jurisdictional agency’s decision, and a reconsideration resulting in revisions to the LOR after the jurisdictional agency’s decision would not serve the purpose of the LOR. We strongly recommend that any requests for reconsideration be submitted as soon as possible after the LOR is issued, to allow adequate time for Coast Guard reconsideration and for the jurisdictional agency’s consideration of any revised LOR. V. Regulatory Analyses We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 14 of these statutes or executive orders. A. Regulatory Planning and Review Executive Orders 12866 (‘‘Regulatory Planning and Review’’) and 13563 (‘‘Improving Regulation and Regulatory Review’’) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a ‘‘significant regulatory action’’ under section 3(f) of Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB). A draft regulatory assessment follows: This proposed rule would clarify the role and purpose of the LORs issued by the Coast Guard COTP regarding the suitability of a waterway for LNG or LHG marine traffic. It would also provide a separate process for LOR PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 78191 reconsideration for facility owners or operators and State or local government in the vicinity of the facility. If an LNG/ LHG owner or operator or State or local government were to seek reconsideration of an LOR, a written request would be sent to the COTP who issued the LOR, and a copy would be sent to the jurisdictional agency. The proposed process, if finalized, would apply only to LORs issued after the effective date of the rule. We do not expect this proposed rule to impose new regulatory costs on the LNG/LHG industry because an LNG/ LHG facility owner or operator and State or local government in the vicinity of the facility will only request reconsideration if it does not agree with the recommendation. The option to request reconsideration of an LOR has been an industry practice for several years. Since 2007, there has been an average of about three requests for reconsiderations annually. As previously discussed, this proposed rule would replace the existing process for reconsideration with the process in proposed § 127.010, and would apply to new LORs issued after the effective date of the rule, not LORs already issued. As such, no change in either the frequency of request or burden is projected as a result of this rulemaking. Although market conditions may change in the future, the Coast Guard does not have any data to indicate the receipt of new requests for reconsideration of LORs within the foreseeable future. B. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term ‘‘small entities’’ comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. Large corporations own the existing waterfront LNG facilities, and we expect this type of ownership to continue in the future. This type of ownership also exists for the approximately 159 LHG facilities operating in the United States. In addition, as stated above, the Coast Guard does not expect a change in either the frequency of request or burden as a result of this rulemaking. Therefore, we certify under 5 U.S.C. 605(b) that this proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or E:\FR\FM\16DEP1.SGM 16DEP1 78192 Federal Register / Vol. 76, No. 242 / Friday, December 16, 2011 / Proposed Rules governmental jurisdiction qualifies as a small entity, and that this rule would have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under ADDRESSES. In your comment, explain why you think it qualifies and how and to what degree this rule would economically affect it. jlentini on DSK4TPTVN1PROD with PROPOSALS C. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this proposed rule so that the entities can better evaluate its effects on them and participate in the rulemaking process. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult with the Coast Guard personnel listed in the FOR FURTHER INFORMATION CONTACT section of this proposed rule. We will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency’s responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–(888) 734–3247). D. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501– 3520) (PRA). Under OMB regulations implementing the PRA, ‘‘Controlling Paperwork Burdens on the Public’’ (5 CFR 1320), collection of information means the obtaining, soliciting, or requiring the disclosure to an agency of information by or for an agency by means of identical questions posed to, or identical reporting, recordkeeping, or disclosure requirements imposed on, ten or more persons. ‘‘Ten or more persons’’ refers to the number of respondents to whom a collection of information is addressed by the agency within any 12-month period and does not include employees of the respondent acting within the scope of their employment, contractors engaged by a respondent for the purpose of complying with the collection of VerDate Mar<15>2010 16:22 Dec 15, 2011 Jkt 226001 information, or current employees of the Federal government. Collections of information affecting ten or more respondents within any 12-month period require OMB review and approval. This proposed rule articulates a separate process for reconsideration of LORs by the Coast Guard. As stated in Section V.A, there has been an average of about three requests for reconsideration annually since 2007, and the Coast Guard does not have any data to indicate the receipt of new requests for reconsideration of LORs within the foreseeable future. We therefore expect to receive fewer than ten requests per year. This figure is less than the threshold of ten respondents per 12-month period for collection of information reporting purposes under the PRA. E. Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. F. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. G. Taking of Private Property This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. H. Civil Justice Reform This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 I. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. J. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. K. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We determined that it is not a ‘‘significant energy action’’ under that order because it is not a ‘‘significant regulatory action’’ under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. L. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. E:\FR\FM\16DEP1.SGM 16DEP1 Federal Register / Vol. 76, No. 242 / Friday, December 16, 2011 / Proposed Rules PART 127—WATERFRONT FACILITIES HANDLING LIQUEFIED NATURAL GAS AND LIQUEFIED HAZARDOUS GAS (3) Locks, bridges, or other man-made obstructions in the waterway; (4) Following factors adjacent to the facility such as— (i) Depths of the water; (ii) Tidal range; (iii) Protection from high seas; (iv) Natural hazards, including reefs, rocks, and sandbars; (v) Underwater pipelines and cables; (vi) Distance of berthed vessel from the channel and the width of the channel; and (5) Any other issues affecting the safety and security of the waterway and considered relevant by the Captain of the Port. (b) An LOR issued under this section is a recommendation from the COTP to the agency having jurisdiction as described in paragraph (a), and does not constitute agency action for the purposes of § 127.015 or the Administrative Procedure Act (5 U.S.C. 551 et seq.). (c) The owner or operator, or a State or local government in the vicinity of the facility, may request reconsideration as set forth in § 127.010. (d) Persons other than the owner or operator, or State or local government in the vicinity of the facility, may comment on the LOR by submitting comments and relevant information to the agency having jurisdiction, as described in paragraph (a), for that agency’s consideration in its permitting process. (e) Paragraphs (c) and (d) of this section apply to LORs issued after (EFFECTIVE DATE OF FINAL RULE). For LORs issued prior to that date, persons requesting reconsideration must follow the process set forth in § 127.015. 3. Add § 127.010 to read as follows: 1. The authority citation for part 127 continues to read as follows: § 127.010 Reconsideration of the Letter of Recommendation. Authority: 33 U.S.C. 1231; 46 U.S.C. Chapter 701; Department of Homeland Security Delegation No. 0170.1. (a) A person requesting reconsideration pursuant to § 127.009(c) must submit a written request to the Captain of the Port (COTP) who issued the Letter of Recommendation (LOR), and send a copy of the request to the agency to which the LOR was issued. The request must explain why the COTP should reconsider his or her recommendation. (b) In response to a request described in paragraph (a) of this section, the COTP will do one of the following— (1) Send a written confirmation of the LOR to the agency to which the LOR was issued, with copies to the person making the request and the owner or operator; or (2) Revise the LOR, and send the revised LOR to the agency to which the original LOR was issued, with copies to M. Environment We have analyzed this proposed rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under the ‘‘Public Participation and Request for Comments’’ section of this preamble. This rule involves creating a separate process for reconsideration of LORs and falls under section 2.B.2, figure 2–1, paragraph (34)(a) of the Instruction, which includes regulations which are editorial or procedural, such as those updating addresses or establishing application procedures. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. List of Subjects in 33 CFR Part 127 Fire prevention, Harbors, Hazardous substances, Incorporation by reference, Natural gas, Reporting and recordkeeping requirements, and Security measures. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 127 as follows: 2. Revise § 127.009 to read as follows: jlentini on DSK4TPTVN1PROD with PROPOSALS § 127.009 Letter of Recommendation. (a) After the COTP receives the Letter of Intent under § 127.007(a) or (b), the COTP issues a Letter of Recommendation (LOR) as to the suitability of the waterway for LNG or LHG marine traffic to the Federal, State, or local government agencies having jurisdiction for siting, construction, and operation, and, at the same time, sends a copy to the owner or operator, based on the— (1) Information submitted under § 127.007; (2) Density and character of marine traffic in the waterway; VerDate Mar<15>2010 16:22 Dec 15, 2011 Jkt 226001 PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 78193 the person making the request and the owner or operator. (c) A person whose request for reconsideration results in a confirmation as described in paragraph (b)(1) of this section, and who is not satisfied with that outcome, may request, in writing, the opinion of the District Commander of the district in which the LOR was issued. (1) The request must explain why the person believes the COTP should reconsider his or her recommendation. (2) A person making a request under paragraph (c) of this section must send a copy of the request to the agency to which the LOR was issued. (3) In response to the request described in paragraph (c) of this section, the District Commander will do one of the following— (i) Send a written confirmation of the LOR to the agency to which the LOR was issued, with copies to the person making the request, the owner or operator, and the COTP; or (ii) Instruct the COTP to reconsider the LOR, and send written notification of that instruction to the agency to which the original LOR was issued, with copies to the person making the request and the owner or operator. (d) The District Commander’s written confirmation described in paragraph (c)(3)(i) of this section ends the reconsideration process with respect to that specific request for reconsideration. If the COTP issues an LOR pursuant to paragraph (b)(2) or (c)(3)(ii) of this section, persons described in § 127.009(c) may request reconsideration of that revised LOR using the process beginning in paragraph (a) of this section. Dated: December 9, 2011. J.G. Lantz, Director of Commercial Regulations and Standards, U.S. Coast Guard. [FR Doc. 2011–32257 Filed 12–15–11; 8:45 am] BILLING CODE 9110–04–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R04–OAR–2011–0867–201157(b); FRL–9507–2] Approval and Promulgation of Implementation Plans: Kentucky; Visibility Impairment Prevention for Federal Class I Areas; Removal of Federally Promulgated Provisions Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: E:\FR\FM\16DEP1.SGM 16DEP1

Agencies

[Federal Register Volume 76, Number 242 (Friday, December 16, 2011)]
[Proposed Rules]
[Pages 78188-78193]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-32257]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 127

[Docket No. USCG-2011-0227]
RIN 1625-AB67


Reconsideration of Letters of Recommendation for Waterfront 
Facilities Handling LNG and LHG

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This proposed rule would clarify the role and purpose of the 
Letter of Recommendation (LOR) issued by the Coast Guard Captain of the 
Port regarding the suitability of a waterway for liquefied natural gas 
(LNG) or liquefied hazardous gas (LHG) marine traffic. It also proposes 
a separate process for reconsideration of LORs by the Coast Guard. The 
proposed process, if finalized, would apply only to LORs issued after 
the effective date of the rule.

DATES: Comments and related material must either be submitted to our 
online docket via http://www.regulations.gov on or before March 15, 
2012 or reach the Docket Management Facility by that date.

ADDRESSES: You may submit comments identified by docket number USCG-
2011-0227 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: (202) 493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is (202) 366-9329. To avoid duplication, please use only one of 
these four methods. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section below for 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call or email Ken Smith (CG-5222), U.S. Coast Guard; telephone 
(202) 372-1413, email Ken.A.Smith@uscg.mil. If you have questions on 
viewing or submitting material to the docket, call Ms. Renee V. Wright, 
Program Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
    D. Public Meeting
II. Abbreviations
III. Background
IV. Discussion of Proposed Rule
    A. Proposed Revisions to Sec.  127.009
    B. Proposed Addition of Sec.  127.010
V. Regulatory Analyses
    A. Regulatory Planning and Review
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates Reform Act
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards
    M. Environment

I. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2011-0227), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online or by fax, mail, or hand delivery, but please use only one of 
these means. We recommend that you include your name and a mailing 
address, an email address, or a phone number in the body of your 
document so that we can contact you if we have questions regarding your 
submission.
    To submit your comment online, go to http://www.regulations.gov, 
and type ``USCG-2011-0227'' in the ``Keyword'' box. If you submit 
comments by mail and would like to know that they reached the Facility, 
please enclose a stamped, self-addressed postcard or envelope.
    We will consider all comments and material received during the 
comment period and may change this proposed rule based on your 
comments.

[[Page 78189]]

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Enter Keyword or ID'' box insert ``USCG-2011-0227'' 
and click ``Search.'' Click the ``Open Docket Folder'' in the 
``Actions'' column. If you do not have access to the Internet, you may 
view the docket online by visiting the Docket Management Facility in 
Room W12-140 on the ground floor of the Department of Transportation 
West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays. We have an agreement with the Department of Transportation to 
use the Docket Management Facility.

C. Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

D. Public Meeting

    We do not now plan to hold a public meeting, but you may submit a 
request for one to the docket using one of the methods specified under 
ADDRESSES. In your request, explain why you believe a public meeting 
would be beneficial. If we determine that a public meeting would aid 
this rulemaking, it will hold one at a time and place announced by a 
later notice in the Federal Register.

II. Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
LHG Liquefied hazardous gas
LNG Liquefied natural gas
LOR Letter of Recommendation
PWSA Ports and Waterways Safety Act of 1972, as amended (33 U.S.C. 
1221 et seq.)
Sec.  Section symbol
U.S.C. United States Code

III. Background

    Under existing regulations contained in 33 CFR part 127, an owner 
or operator intending to build a new waterfront facility handling 
liquefied natural gas (LNG) or liquefied hazardous gas (LHG), or 
planning new construction to expand or modify marine terminal 
operations in an existing facility that would result in an increase in 
the size and/or frequency of LNG or LHG marine traffic on the waterway 
associated with the proposed facility or modification to an existing 
facility, must submit a letter of intent to the Captain of the Port 
(COTP) of the zone in which the facility is or will be located. The 
COTP then issues a Letter of Recommendation (LOR) as to the suitability 
of the waterway for LNG or LHG marine traffic related to the facility.
    The LOR is intended to provide an expert, unbiased recommendation 
as to whether the waterway and port infrastructure can safely and 
securely support the anticipated increase in maritime traffic 
associated with the new or modified facility. Prior to May 2010, the 
COTP issued the LOR to the owner or operator of the facility as well as 
to the State and local government agencies with jurisdiction, but the 
Coast Guard changed that process in a rule updating the letter of 
intent and LOR regulations (75 FR 29420, Revision of LNG and LHG 
Waterfront Facility General Requirements). Currently, the Coast Guard 
issues the LOR to the Federal, State, or local government agency having 
jurisdiction for siting, construction, and operation of the waterfront 
facility (referred to in this document as the ``jurisdictional 
agency''), and sends a copy to the owner or operator of the proposed 
facility.
    Several issued LORs have invited the recipient to request 
reconsideration of the LOR pursuant to 33 CFR 127.015, which provides 
that ``[a]ny person directly affected by an action taken under this 
part may request reconsideration by the Coast Guard officer responsible 
for that action.'' The process set forth in Sec.  127.015 is the same 
that an owner or operator would use to appeal agency actions described 
elsewhere in Part 127, such as a COTP's Order to suspend operations. 
The use of Sec.  127.015 to request reconsideration of LORs, however, 
has led to confusion about the nature and proper role of the LOR. This 
is in part because the words ``action'' and ``final agency action'' in 
Sec.  127.015 create confusion as to whether the LOR is an agency 
action for purposes of the Administrative Procedure Act (5 U.S.C. 551 
et seq.). While we believe LORs should be subject to intra-agency 
review, we did not intend to suggest that an LOR is an agency action or 
that it conveys a right or obligation.
    The LOR is not an agency action as that term is defined by the 
Administrative Procedure Act or understood in the context of 
enforceable legal actions. To constitute agency action for purposes of 
the Administrative Procedure Act, an activity must constitute, in whole 
or in part, an agency rule, order, license, sanction, relief, or the 
equivalent or denial thereof, or failure to act (5 U.S.C. 551(13)). The 
LOR is none of these. The LOR neither entitles nor forbids an owner or 
operator to construct or modify an LNG or LHG facility--the Coast Guard 
has no authority to site or license waterfront facilities handling LNG 
or LHG. Rather, the Coast Guard provides its LOR to an agency that does 
have that authority--the jurisdictional agency--to inform that agency's 
review of the siting, construction, or operation of a facility. The LOR 
is a recommendation, and is not legally enforceable on or by any agency 
or person, including the Coast Guard.
    The Coast Guard does take agency action with respect to LNG and LHG 
facilities when it enforces its rules addressing the operation, 
maintenance, personnel training, firefighting, and security of the 
marine transfer area of waterfront facilities that handle LNG or LHG 
cargos. The Coast Guard COTP also may issue a COTP Order directing 
vessel operations, and although such an Order would be directed to the 
vessel's owner or operator, it could impact the operation of an LNG or 
LHG facility. Enforcement of these Coast Guard regulations constitutes 
agency action, follows administrative processes set out in Coast Guard 
regulations, and may be appealed in court at the completion of the 
administrative processes. For example, a Coast Guard action enforcing 
Sec.  127.013, ``Suspension of transfer operations,'' may be appealed 
under Sec.  127.015, and a COTP Order directing vessel operations under 
33 CFR 160.111 may be appealed under 33 CFR 160.7. An LOR is unrelated 
to the enforcement described above. It is not a precursor to or a basis 
for COTP Orders or Part 127 enforcement. The LOR is only a 
recommendation providing the jurisdictional agency with the benefit of 
the Coast Guard's expertise on waterway safety and security; it 
documents the COTP's recommendation within another agency's permitting 
or approval process. The authority to approve or disapprove the siting, 
construction, or modification of an LNG or LHG facility lies with the 
jurisdictional agency, and not with the Coast Guard.\1\
---------------------------------------------------------------------------

    \1\ Similarly, the LOR may inform the analysis undertaken by the 
jurisdictional agency pursuant to the National Environmental Policy 
Act (NEPA), but issuing the LOR is not a major Federal action under 
NEPA because it is not the adoption of an official policy, formal 
plan, or program or the approval of a specific project. (See 40 CFR 
1508.18.)
---------------------------------------------------------------------------

    As discussed above, we believe that some of the past confusion 
regarding the

[[Page 78190]]

nature of LORs stems from the Coast Guard's use of 33 CFR 127.015 for 
LOR reconsiderations. The process in Sec.  127.015 is designed for 
appeals of agency actions taken under the authority of Part 127, and 
using that same process for internal reconsideration of LORs 
inadvertently caused confusion between the two. In particular, Sec.  
127.015 applies to ``[a]ny person directly affected by an action taken 
under this part,'' and using that language in reference to an 
unenforceable recommendation is inapt. The Coast Guard seeks to resolve 
the resulting confusion and, further, believes the process in Sec.  
127.015 is inappropriately complicated and lengthy in light of the 
LOR's role as a recommendation to another agency in the context of that 
agency's permitting process. The LOR is intended to inform the 
jurisdictional agency's process, and therefore should be available 
early in that process. A reconsideration process that results in 
revisions to the LOR after the jurisdictional agency's decision does 
not serve the purpose of the LOR.
    The purpose of the LOR is to assist the agencies having 
jurisdiction over the siting, construction, and operation of LNG and 
LHG facilities. The Ports and Waterways Safety Act of 1972, as amended 
(33 U.S.C. 1221 et seq.) (PWSA) authorizes the Secretary of the 
Department in which the Coast Guard is operating to implement 
regulations to, among other things, reduce the possibility of vessel or 
cargo loss, or damage to life, property, or the marine environment. See 
33 U.S.C. 1231. The Secretary of Homeland Security delegated this 
authority to the Coast Guard (Department of Homeland Security 
Delegation 0170.1). Issuing LORs with regard to proposed new or 
modified LNG or LHG facilities is one of many methods by which the 
Coast Guard furthers its missions under the PWSA. To improve the 
existing process, we propose to clarify the purpose of LORs and revise 
procedures by which facility owners or operators and State or local 
governments in the vicinity of a facility may request reconsideration 
of an issued LOR. The proposed reconsideration procedures, if 
finalized, would apply only to LORs issued after the effective date of 
the rule.

IV. Discussion of Proposed Rule

    We considered eliminating reconsideration of the LOR in order to 
avoid the confusion described above and eliminate procedural delay. We 
believe, however, that consistency and governmental transparency are 
best served if a defined set of stakeholders has the ability to ask the 
Coast Guard to reconsider its recommendation. This is in keeping with 
past and current process under Sec.  127.015, in which the Coast Guard 
has responded to requests for reconsideration from facility owners and 
operators, and State or local governments, as the practical analogue to 
``persons directly affected.''
    As discussed above, the existing process for reconsideration can 
create confusion and delay. We therefore propose to add a new Sec.  
127.010 to 33 CFR part 127 to provide a separate process for the 
reconsideration of LORs issued after the effective date of this rule. 
To facilitate the use of this new section, we also propose to revise 
Sec.  127.009 to clarify the scope of the LOR and the persons who may 
request reconsideration.

A. Proposed Revisions to Sec.  127.009

    We propose to renumber the existing text of Sec.  127.009, such 
that all of the existing text would be contained in paragraph (a). We 
propose to then add a paragraph to Sec.  127.009 explaining that an LOR 
is only a recommendation from the COTP to the jurisdictional agency, 
and does not constitute agency action for the purposes of Sec.  127.015 
or the Administrative Procedure Act.
    We also propose to indicate in this section that reconsideration of 
LORs would follow the process set forth in proposed Sec.  127.010. To 
avoid disrupting any reconsiderations now in progress, and to prevent 
any perceived disadvantage to those who were issued an LOR indicating 
that reconsideration under Sec.  127.015 was available, the Coast Guard 
would continue to process the reconsiderations of issued LORs under 
Sec.  127.015. Only LORs issued after the effective date of any 
resulting final rule would follow the new process set out in proposed 
Sec.  127.010. Processing issued LORs under Sec.  127.015, however, 
does not alter the fact that all LORs are mere recommendations to the 
jurisdictional agency, and none are agency actions as outlined in the 
Administrative Procedure Act.
    As set forth in the proposed revision to Sec.  127.009, the 
facility owner or operator could request reconsideration of the LOR, as 
could a State or local government in the vicinity of the facility. 
Other interested persons would submit comments and relevant information 
to the jurisdictional agency for that agency's consideration during its 
permitting process. This is consistent both with the Coast Guard's 
submission of its own recommendation to the jurisdictional agency for 
that agency's consideration, and with the Coast Guard's past and 
current practice of receiving requests for reconsideration from a 
limited set of persons under Sec.  127.015.
    In general, those interested in expressing their agreement or 
disagreement with the Coast Guard's recommendation would submit their 
own comments and information to the jurisdictional agency, so that the 
agency can weigh all the information before it makes a decision. We 
believe, however, that it is important to provide for additional 
discussion with the facility owner or operator and the State or local 
governments in the vicinity of the facility. These entities possess 
unique information regarding safety and security issues affecting the 
facility and waterway. The facility owner or operator often is aware 
of, or even the source of, anticipated changes in vessel traffic, 
navigation obstructions, and other factors the Coast Guard considers in 
issuing the LOR. State and local governments play an important role in 
protecting public safety, and are essential in helping the Federal 
government plan and prepare for emergencies; they also may be aware of 
safety and security resources and challenges. Therefore, the proposed 
rule would provide an avenue for these entities to request that the 
Coast Guard reconsider its LOR. We invite the public to comment on the 
scope of this exception, and specifically on whether it should be 
extended in the final rule to additional categories of persons. If you 
provide comments on this topic, please explain the reasons for your 
comments.
    In addition to the above changes related to new Sec.  127.010, we 
propose revising Sec.  127.009(a)(5), the last item in the list of 
considerations the COTP takes into account when developing the LOR. The 
proposed revision is more specific than the current phrase, ``[o]ther 
safety and security issues identified,'' and more accurately reflects 
the COTP's ability to consider a broad range of safety and security 
issues that may vary from waterway to waterway.

B. Proposed Addition of Sec.  127.010

    As proposed in this new section, the reconsideration of an LOR 
would begin with the submission of a written request to the COTP who 
issued the LOR, describing why the COTP should reconsider his or her 
recommendation. The explanation would focus on the waterway safety and 
security topics set forth in Sec. Sec.  127.007 and 127.009, as these 
describe the limited scope of the LOR. The person requesting 
reconsideration would send a copy of the request to the agency to which 
the LOR was issued, to inform the agency with jurisdiction for siting, 
construction, or operation of the

[[Page 78191]]

facility that the COTP has been asked to reconsider the LOR.
    The COTP would review the request and the LOR, and either confirm 
or revise the recommendation. The COTP would send either a written 
confirmation or a revised LOR to the jurisdictional agency, with copies 
to the requester and to the facility owner or operator. This would 
ensure that all those who received the original LOR, and the copy of 
the request for reconsideration, also receive the written confirmation 
or revised LOR. A facility owner or operator, or State or local 
government in the vicinity of the facility, who wished to request 
reconsideration of the revised LOR, could do so by following the same 
procedures for requesting reconsideration of the original LOR.
    Documents the Coast Guard provides to jurisdictional agencies 
concerning LOR requests for reconsideration and appeals are normally 
made available to the public through the jurisdictional agency's docket 
management system.
    If the COTP confirms the recommendation after reconsideration, the 
person who requested reconsideration could seek the opinion of the 
COTP's District Commander. The request would have to explain why the 
District Commander should review the COTP's recommendation, and the 
requester must also send a copy to the jurisdictional agency to which 
the LOR was issued.
    The District Commander would review the LOR and associated 
documents, and either confirm the LOR or instruct the COTP to 
reconsider the LOR. As in the earlier stage, the District Commander 
would send a written notification to the jurisdictional agency, with 
copies to the requester and the facility owner or operator. The 
District Commander's written confirmation would end the reconsideration 
process; the requester could not request review by another officer in 
the chain of command. We propose to limit reconsideration to the 
District Commander level because the COTP and the District Commander 
have the most expertise with the specific local waterway.
    If the District Commander instructed the COTP to reconsider the 
LOR, and that reconsideration resulted in a revised LOR, then a 
facility owner or operator, or State or local government in the 
vicinity of the facility, could request reconsideration of the revised 
LOR by following the same procedures for requesting the reconsideration 
of the original LOR.
    The proposed rule could result in more than one person requesting 
reconsideration of an LOR, such that multiple reconsiderations would be 
``in progress'' at one time. The Coast Guard would consolidate multiple 
requests when appropriate.
    We do not propose a specific timeline for submitting or processing 
requests, but in general we would expect to receive requests for 
reconsideration, if any, soon after issuing the LOR, and we would 
expect to resolve them as promptly as possible. The Coast Guard would 
not expect to continue to reconsider an LOR after the jurisdictional 
agency has reached its decision, even if the process described above 
has not run its course. As stated above, the LOR is intended to inform 
the jurisdictional agency's decision, and a reconsideration resulting 
in revisions to the LOR after the jurisdictional agency's decision 
would not serve the purpose of the LOR. We strongly recommend that any 
requests for reconsideration be submitted as soon as possible after the 
LOR is issued, to allow adequate time for Coast Guard reconsideration 
and for the jurisdictional agency's consideration of any revised LOR.

V. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and executive orders related to rulemaking. Below we summarize our 
analyses based on 14 of these statutes or executive orders.

A. Regulatory Planning and Review

    Executive Orders 12866 (``Regulatory Planning and Review'') and 
13563 (``Improving Regulation and Regulatory Review'') direct agencies 
to assess the costs and benefits of available regulatory alternatives 
and, if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. This NPRM has not been designated a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866. Accordingly, the NPRM has not been reviewed by the Office of 
Management and Budget (OMB). A draft regulatory assessment follows:
    This proposed rule would clarify the role and purpose of the LORs 
issued by the Coast Guard COTP regarding the suitability of a waterway 
for LNG or LHG marine traffic. It would also provide a separate process 
for LOR reconsideration for facility owners or operators and State or 
local government in the vicinity of the facility. If an LNG/LHG owner 
or operator or State or local government were to seek reconsideration 
of an LOR, a written request would be sent to the COTP who issued the 
LOR, and a copy would be sent to the jurisdictional agency. The 
proposed process, if finalized, would apply only to LORs issued after 
the effective date of the rule.
    We do not expect this proposed rule to impose new regulatory costs 
on the LNG/LHG industry because an LNG/LHG facility owner or operator 
and State or local government in the vicinity of the facility will only 
request reconsideration if it does not agree with the recommendation. 
The option to request reconsideration of an LOR has been an industry 
practice for several years. Since 2007, there has been an average of 
about three requests for reconsiderations annually. As previously 
discussed, this proposed rule would replace the existing process for 
reconsideration with the process in proposed Sec.  127.010, and would 
apply to new LORs issued after the effective date of the rule, not LORs 
already issued. As such, no change in either the frequency of request 
or burden is projected as a result of this rulemaking. Although market 
conditions may change in the future, the Coast Guard does not have any 
data to indicate the receipt of new requests for reconsideration of 
LORs within the foreseeable future.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed rule would have a significant economic 
impact on a substantial number of small entities. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000.
    Large corporations own the existing waterfront LNG facilities, and 
we expect this type of ownership to continue in the future. This type 
of ownership also exists for the approximately 159 LHG facilities 
operating in the United States. In addition, as stated above, the Coast 
Guard does not expect a change in either the frequency of request or 
burden as a result of this rulemaking. Therefore, we certify under 5 
U.S.C. 605(b) that this proposed rule, if promulgated, will not have a 
significant economic impact on a substantial number of small entities. 
If you think that your business, organization, or

[[Page 78192]]

governmental jurisdiction qualifies as a small entity, and that this 
rule would have a significant economic impact on it, please submit a 
comment to the Docket Management Facility at the address under 
ADDRESSES. In your comment, explain why you think it qualifies and how 
and to what degree this rule would economically affect it.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this proposed rule so that the entities can 
better evaluate its effects on them and participate in the rulemaking 
process. If the proposed rule would affect your small business, 
organization, or governmental jurisdiction and you have questions 
concerning its provisions or options for compliance, please consult 
with the Coast Guard personnel listed in the FOR FURTHER INFORMATION 
CONTACT section of this proposed rule. We will not retaliate against 
small entities that question or complain about this rule or any policy 
or action of the Coast Guard.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-(888) 734-3247).

D. Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) (PRA). Under OMB 
regulations implementing the PRA, ``Controlling Paperwork Burdens on 
the Public'' (5 CFR 1320), collection of information means the 
obtaining, soliciting, or requiring the disclosure to an agency of 
information by or for an agency by means of identical questions posed 
to, or identical reporting, recordkeeping, or disclosure requirements 
imposed on, ten or more persons. ``Ten or more persons'' refers to the 
number of respondents to whom a collection of information is addressed 
by the agency within any 12-month period and does not include employees 
of the respondent acting within the scope of their employment, 
contractors engaged by a respondent for the purpose of complying with 
the collection of information, or current employees of the Federal 
government. Collections of information affecting ten or more 
respondents within any 12-month period require OMB review and approval.
    This proposed rule articulates a separate process for 
reconsideration of LORs by the Coast Guard. As stated in Section V.A, 
there has been an average of about three requests for reconsideration 
annually since 2007, and the Coast Guard does not have any data to 
indicate the receipt of new requests for reconsideration of LORs within 
the foreseeable future. We therefore expect to receive fewer than ten 
requests per year. This figure is less than the threshold of ten 
respondents per 12-month period for collection of information reporting 
purposes under the PRA.

E. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this proposed rule 
under that Order and have determined that it does not have implications 
for federalism.

F. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 (adjusted for 
inflation) or more in any one year. Though this proposed rule would not 
result in such an expenditure, we do discuss the effects of this rule 
elsewhere in this preamble.

G. Taking of Private Property

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

H. Civil Justice Reform

    This proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

I. Protection of Children

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

J. Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would not have a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes.

K. Energy Effects

    We have analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

L. Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

[[Page 78193]]

M. Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Management Directive 023-01 and Commandant Instruction 
M16475.lD, which guide the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have made a preliminary determination that this action is one of a 
category of actions that do not individually or cumulatively have a 
significant effect on the human environment. A preliminary 
environmental analysis checklist supporting this determination is 
available in the docket where indicated under the ``Public 
Participation and Request for Comments'' section of this preamble. This 
rule involves creating a separate process for reconsideration of LORs 
and falls under section 2.B.2, figure 2-1, paragraph (34)(a) of the 
Instruction, which includes regulations which are editorial or 
procedural, such as those updating addresses or establishing 
application procedures. We seek any comments or information that may 
lead to the discovery of a significant environmental impact from this 
proposed rule.

List of Subjects in 33 CFR Part 127

    Fire prevention, Harbors, Hazardous substances, Incorporation by 
reference, Natural gas, Reporting and recordkeeping requirements, and 
Security measures.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 127 as follows:

PART 127--WATERFRONT FACILITIES HANDLING LIQUEFIED NATURAL GAS AND 
LIQUEFIED HAZARDOUS GAS

    1. The authority citation for part 127 continues to read as 
follows:

    Authority: 33 U.S.C. 1231; 46 U.S.C. Chapter 701; Department of 
Homeland Security Delegation No. 0170.1.

    2. Revise Sec.  127.009 to read as follows:


Sec.  127.009  Letter of Recommendation.

    (a) After the COTP receives the Letter of Intent under Sec.  
127.007(a) or (b), the COTP issues a Letter of Recommendation (LOR) as 
to the suitability of the waterway for LNG or LHG marine traffic to the 
Federal, State, or local government agencies having jurisdiction for 
siting, construction, and operation, and, at the same time, sends a 
copy to the owner or operator, based on the--
    (1) Information submitted under Sec.  127.007;
    (2) Density and character of marine traffic in the waterway;
    (3) Locks, bridges, or other man-made obstructions in the waterway;
    (4) Following factors adjacent to the facility such as--
    (i) Depths of the water;
    (ii) Tidal range;
    (iii) Protection from high seas;
    (iv) Natural hazards, including reefs, rocks, and sandbars;
    (v) Underwater pipelines and cables;
    (vi) Distance of berthed vessel from the channel and the width of 
the channel; and
    (5) Any other issues affecting the safety and security of the 
waterway and considered relevant by the Captain of the Port.
    (b) An LOR issued under this section is a recommendation from the 
COTP to the agency having jurisdiction as described in paragraph (a), 
and does not constitute agency action for the purposes of Sec.  127.015 
or the Administrative Procedure Act (5 U.S.C. 551 et seq.).
    (c) The owner or operator, or a State or local government in the 
vicinity of the facility, may request reconsideration as set forth in 
Sec.  127.010.
    (d) Persons other than the owner or operator, or State or local 
government in the vicinity of the facility, may comment on the LOR by 
submitting comments and relevant information to the agency having 
jurisdiction, as described in paragraph (a), for that agency's 
consideration in its permitting process.
    (e) Paragraphs (c) and (d) of this section apply to LORs issued 
after (EFFECTIVE DATE OF FINAL RULE). For LORs issued prior to that 
date, persons requesting reconsideration must follow the process set 
forth in Sec.  127.015.
    3. Add Sec.  127.010 to read as follows:


Sec.  127.010  Reconsideration of the Letter of Recommendation.

    (a) A person requesting reconsideration pursuant to Sec.  
127.009(c) must submit a written request to the Captain of the Port 
(COTP) who issued the Letter of Recommendation (LOR), and send a copy 
of the request to the agency to which the LOR was issued. The request 
must explain why the COTP should reconsider his or her recommendation.
    (b) In response to a request described in paragraph (a) of this 
section, the COTP will do one of the following--
    (1) Send a written confirmation of the LOR to the agency to which 
the LOR was issued, with copies to the person making the request and 
the owner or operator; or
    (2) Revise the LOR, and send the revised LOR to the agency to which 
the original LOR was issued, with copies to the person making the 
request and the owner or operator.
    (c) A person whose request for reconsideration results in a 
confirmation as described in paragraph (b)(1) of this section, and who 
is not satisfied with that outcome, may request, in writing, the 
opinion of the District Commander of the district in which the LOR was 
issued.
    (1) The request must explain why the person believes the COTP 
should reconsider his or her recommendation.
    (2) A person making a request under paragraph (c) of this section 
must send a copy of the request to the agency to which the LOR was 
issued.
    (3) In response to the request described in paragraph (c) of this 
section, the District Commander will do one of the following--
    (i) Send a written confirmation of the LOR to the agency to which 
the LOR was issued, with copies to the person making the request, the 
owner or operator, and the COTP; or
    (ii) Instruct the COTP to reconsider the LOR, and send written 
notification of that instruction to the agency to which the original 
LOR was issued, with copies to the person making the request and the 
owner or operator.
    (d) The District Commander's written confirmation described in 
paragraph (c)(3)(i) of this section ends the reconsideration process 
with respect to that specific request for reconsideration. If the COTP 
issues an LOR pursuant to paragraph (b)(2) or (c)(3)(ii) of this 
section, persons described in Sec.  127.009(c) may request 
reconsideration of that revised LOR using the process beginning in 
paragraph (a) of this section.

    Dated: December 9, 2011.
J.G. Lantz,
Director of Commercial Regulations and Standards, U.S. Coast Guard.
[FR Doc. 2011-32257 Filed 12-15-11; 8:45 am]
BILLING CODE 9110-04-P