Reconsideration of Letters of Recommendation for Waterfront Facilities Handling LNG and LHG, 70886-70891 [2012-28794]
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70886
Federal Register / Vol. 77, No. 229 / Wednesday, November 28, 2012 / Rules and Regulations
or more (adjusted annually for inflation)
in any one year.’’ The current threshold
after adjustment for inflation is $139
million, using the most current (2011)
Implicit Price Deflator for the Gross
Domestic Product. We do not expect
this final rule to result in any 1-year
expenditure that would meet or exceed
this amount.
We have analyzed this final rule in
accordance with the principles set forth
in Executive Order 13132. We have
determined that the rule does not
contain policies that have substantial
direct effects on the States, on the
relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Accordingly, we
have concluded that the rule does not
contain policies that have federalism
implications as defined in the Executive
Order and, consequently, a federalism
summary impact statement is not
required.
This action is not intended to change
existing requirements for compliance
dates contained in final rules published
before January 1, 2013. Therefore, all
final rules published by FDA in the
Federal Register before January 1, 2013,
will still go into effect on the date stated
in the respective final rule.
We generally encourage industry to
comply with new labeling regulations as
quickly as feasible, however. Thus,
when industry members voluntarily
change their labels, it is appropriate that
they incorporate any new requirements
that have been published as final
regulations up to that time.
In rulemaking that began with
publication of a proposed rule on April
15, 1996 (61 FR 16422), and ended with
a final rule on December 24, 1996, we
provided notice and an opportunity for
comment on the practice of establishing
uniform compliance dates by issuance
of a final rule announcing the date.
Receiving no comments objecting to this
practice, we find any further rulemaking
unnecessary for establishment of the
uniform compliance date. Nonetheless,
under 21 CFR 10.40(e)(1), we are
providing an opportunity for comment
on whether this uniform compliance
date should be modified or revoked.
The new uniform compliance date
will apply only to final FDA food
labeling regulations that require changes
in the labeling of food products and that
publish after January 1, 2013, and before
December 31, 2014. Those regulations
will specifically identify January 1,
2016, as their compliance date. All food
products subject to the January 1, 2016,
compliance date must comply with the
appropriate regulations when initially
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introduced into interstate commerce on
or after January 1, 2016. If any food
labeling regulation involves special
circumstances that justify a compliance
date other than January 1, 2016, we will
determine for that regulation an
appropriate compliance date, which
will be specified when the final
regulation is published.
II. Comments
Interested persons may submit either
written comments regarding this
document to the Division of Dockets
Management (see ADDRESSES) or
electronic comments to https://
www.regulations.gov. It is only
necessary to send one set of comments.
Identify comments with the docket
number found in brackets in the
heading of this document. Received
comments may be seen in the Division
of Dockets Management between 9 a.m.
and 4 p.m., Monday through Friday, and
will be posted to the docket at https://
www.regulations.gov.
Dated: November 20, 2012.
Leslie Kux,
Assistant Commissioner for Policy.
[FR Doc. 2012–28817 Filed 11–27–12; 8:45 am]
BILLING CODE 4160–01–P
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.
Final rule.
AGENCY:
ACTION:
This final rule clarifies 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 establishes a separate
process for reconsideration of LORs by
the Coast Guard. The process applies
only to LORs issued after the effective
date of the rule.
DATES: This final rule is effective
December 28, 2012.
ADDRESSES: Comments and material
received from the public, as well as
documents mentioned in this preamble
as being available in the docket, are part
SUMMARY:
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of docket USCG–2011–0227 and are
available for inspection or copying at
the 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, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays. You may also
find this docket on the Internet by going
to https://www.regulations.gov and
inserting ‘‘USCG–2011–0227’’ in the
‘‘Search’’ box.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
email Mr. Ken Smith (CG–OES–2), U.S.
Coast Guard; telephone (202) 372–1413,
email Ken.A.Smith@uscg.mil. If you
have questions on viewing the docket,
call Renee V. Wright, Program Manager,
Docket Operations, telephone (202)
366–9826.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Abbreviations
II. Regulatory History
III. Basis and Purpose
IV. Background
V. Discussion of Comments and Changes
VI. 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. Abbreviations
APA Administrative Procedure Act
CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FERC Federal Energy Regulatory
Commission
FR Federal Register
LHG Liquefied hazardous gas
LNG Liquefied natural gas
LOI Letter of Intent
LOR Letter of Recommendation
NEPA National Environmental Policy Act
of 1969
NPRM Notice of proposed rulemaking
Pub. L. Public Law
PWSA Ports and Waterways Safety Act of
1972, as amended
U.S.C. United States Code
II. Regulatory History
On December 16, 2011, we published
a notice of proposed rulemaking
(NPRM) entitled ‘‘Reconsideration of
Letters of Recommendation for
Waterfront Facilities Handling LNG and
LHG’’ in the Federal Register (76 FR
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78188). We received two letters
commenting on the proposed rule. No
public meeting was requested and none
was held.
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III. Basis and Purpose
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 waterfront
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 (LOI) to the
Captain of the Port (COTP) of the zone
in which the facility is or will be
located. The COTP then issues, to the
Federal, State, or local government
agencies having jurisdiction for siting,
construction, and operation of the
facility, a Letter of Recommendation
(LOR) as to the suitability of the
waterway for LNG or LHG marine traffic
related to the facility.
The Coast Guard issues LORs
pursuant to the authority of the Ports
and Waterways Safety Act of 1972, as
amended (PWSA) (33 U.S.C. 1221 et
seq.). Section 813 of the Coast Guard
Authorization Act of 2010 also directs
the Coast Guard to make a
recommendation to the Federal Energy
Regulatory Commission (FERC) as to the
suitability of marine traffic associated
with a proposed waterside LNG facility
(Pub. L. 111–281, 124 Stat. 2905, 2999)
(Oct. 15, 2010), and the LOR meets that
requirement. This rule clarifies the role
and purpose of the LOR, and establishes
a separate process for reconsideration of
LORs issued by the Coast Guard. This
clarification and establishment of a new
process are necessary because of
confusion caused in part by the past
practice of reconsidering LORs using the
appeals process set forth in 33 CFR
127.015. We issue this final rule under
the authority of the statutes already
described, as well as Department of
Homeland Security Delegation No.
0170.1 and 33 CFR subpart 1.05.
IV. Background
As described above, the Coast Guard
issues an LOR in response to an LOI
received from an owner or operator
intending to build a new waterfront
facility handling LNG or 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
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waterway associated with the proposed
facility or modification to an existing
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 marine 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.
However, in 2010 the Coast Guard
changed that process in a final rule
updating the LOI and LOR regulations
(‘‘Revision of LNG and LHG Waterfront
Facility General Requirements,’’ 75 FR
29420 (May 26, 2010)). 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. The
majority of recent LOR recipients have
been facilities handling LNG, and FERC
is the jurisdictional agency with
exclusive authority to approve or deny
an application for the siting,
construction, expansion, and operation
of an LNG terminal. FERC has
incorporated into its regulations the
Coast Guard’s requirement that the
facility owner or operator submit an LOI
(33 CFR 127.007), making submission of
the LOI to the Coast Guard a required
element of the facility owner or
operator’s application for FERC
approval (18 CFR 157.21(a)(1)).
Following the receipt of the facility
owner or operator’s LOI, the COTP
issues the LOR to FERC, as part of
FERC’s public comment and decision
making process, as a function of the
Coast Guard’s subject matter expertise
(33 CFR 127.009). Unlike the LOI, the
LOR is not a pre-filing or a permitting
requirement under FERC regulations,
and is not a required element of the
facility owner or operator’s application
to FERC. The LOR is the Coast Guard’s
‘‘comment’’ on FERC’s proposed action.
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
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70887
LORs, however, has led to confusion
about the nature and proper role of the
LOR. This is in part because use of 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 (APA) (5 U.S.C. 551 et
seq.). While we believe LORs should be
subject to internal Coast Guard review,
we did not intend to suggest that an
LOR is an agency action, or that the LOR
conveys a right or obligation.
As we explained in the NPRM, the
LOR is not an ‘‘agency action’’ as that
term is defined by the APA or
understood in the context of enforceable
legal actions. To constitute agency
action for purposes of the APA, 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.
As discussed above, we believe that
some of the past confusion regarding the
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 127,1 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
1 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, and when the COTP
issues an Order directing vessel operations. See the
detailed discussion in the NPRM (76 FR 78189).
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process. The LOR is intended to inform
the jurisdictional agency’s process, and
therefore should be available to the
jurisdictional agency 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.
V. Discussion of Comments and
Changes
The Coast Guard received two letters
commenting on this proposed
rulemaking: one from the Attorney
General for the State of Rhode Island,
and one from the Rhode Island
Department of Environmental
Management. Both commenters
expressed the opinion that issuance of
an LOR constitutes an agency action
under the APA, and one expressed the
opinion that the issuance of an LOR is
a major federal action that triggers the
environmental impact analysis
requirements of the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370h). The
Coast Guard disagrees with these
comments.
Pursuant to the Natural Gas Act, as
amended, FERC possesses the exclusive
authority to approve or deny an
application for the siting, construction,
expansion, and operation of a waterfront
LNG facility (see 15 U.S.C. 717b(e)).
Similarly, for proposals to site,
construct, expand, or operate a
waterfront LHG facility, the agency with
jurisdiction (Federal, State, or local)
over the project possesses approval
authority. The agency with jurisdiction
over the proposed action of siting,
constructing, or operating the waterfront
LNG or LHG facility serves as the lead
agency responsible for complying with
the applicable environmental review
requirements.
Issuance of an LOR is not an ‘‘action’’
by the Coast Guard under the APA or
NEPA. The LOR is not the functional
equivalent of a permit or a form of
permission that substantively affects a
license, nor is it a ‘‘determination’’ that
can be enforced. The Coast Guard has
no jurisdiction to authorize the siting,
construction, and operation of
waterfront LNG and LHG facilities.
Jurisdictional agencies, such as FERC,
are not required to issue or deny a
license or other authorization based on
the recommendations contained in an
LOR, or impose any recommended
mitigation measures as terms of the
authorization, even where the LOR is
required. The Coast Guard has no
authority over the content of the
jurisidictional agency’s license or
permit. Although the Coast Guard is
required to provide recommendations to
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FERC under section 813 of the Coast
Guard Authorization Act of 2010, (Pub.
L. 111–281, 124 Stat. 2905, 2999 (Oct.
15, 2010)), FERC is not prohibited from
issuing an order without having
received a Coast Guard
recommendation. For these reasons, the
LOR does not ‘‘substantively affect’’ a
license or licensing process as suggested
by the commenters. The LOR merely
provides information for the
jurisdictional agency to consider in its
own deliberative process.
Furthermore, issuing an LOR neither
authorizes nor prohibits vessel transit to
or from the LNG or LHG facility. If
safety or security concerns prompted
the Coast Guard to address vessel
operations near the facility, the Coast
Guard Captain of the Port (COTP) would
do so in a COTP order; that COTP order
would be issued pursuant to specific
authority granted by the Ports and
Waterways Safety Act (PWSA) (33
U.S.C. 1221 et seq.) that is wholly
independent of, and does not rely on or
enforce, an LOR. To interpret the LOR
as a Federal agency action under the
APA would impermissibly detract from
the jurisdictional agency’s authority to
license the siting, construction, and
operation of LNG and LHG waterfront
facilities.
Issuing an LOR is not a major Federal
action that triggers an independent duty
to prepare an environmental impact
analysis under NEPA. NEPA requires
FERC, as the responsible official for the
permitting process, to consult with
agencies that have special expertise
with respect to any environmental
impact involved (42 U.S.C. 4332(C)).
There is no requirement, however, that
the agency consulted prepare a separate
environmental impact statement (42
U.S.C. 4332; see also 40 CFR 1501.5).
The Coast Guard, as an agency with
subject matter expertise in matters
affecting the safety and security of the
waterway, serves as a cooperating
agency to the jurisdictional agency (see
40 CFR 1501.6). In this role as a
cooperating agency, and in accordance
with 33 CFR Part 127, the Coast Guard
makes its recommendation as to the
suitability of the waterway to the
Federal, State, or local government
agency with jurisdiction. This
recommendation, communicated in the
LOR, is a document to be used in the
jurisdictional agency’s permitting
process. There is no requirement that it
independently comply with NEPA or
other environmental compliance
statutes.
For the reasons explained above, the
LOR is not an ‘‘agency action’’ under the
APA or a major Federal action under
NEPA. The Coast Guard has made no
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change to the proposed rule in response
to the comments received.
The Coast Guard did change the rule
by adding the words ‘‘Indian tribal
government’’ to the list of entities that
may request reconsideration of the LOR
pursuant to the revised § 127.009(c),
with conforming changes in revised
§ 127.009(d). As we explained in our
NPRM, new § 127.009(c) is intended to
provide opportunity for additional
discussion with governmental entities
in the vicinity of the facility who may
have unique information about the
safety and security of the waterway (76
FR 78190). In our NPRM we provided
notice and opportunity for public
comment on this optional participation
of local government entities in the
reconsideration process. Like State and
local governments, Indian tribal
governments in the vicinity of a facility
may be able to provide unique
information regarding safety and
security issues affecting the suitability
of certain waterways, and logically
would be included among the entities
that may choose to request
reconsideration. Adding Indian tribal
governments to the list of entities will
avoid any ambiguity as to their
inclusion, and does not alter the intent
or expected effect of the rule.
Separately, the Coast Guard slightly
reworded new § 127.010(c)(1) for clarity.
Both changes are nonsubstantive
clarifications for which prior notice and
public comment is unnecessary under 5
U.S.C. 553(b)(B).
VI. Regulatory Analyses
We developed this rule after
considering numerous statutes and
executive orders related to rulemaking.
Below we summarize our analyses
based on 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 final
rule has not been designated a
‘‘significant regulatory action’’ under
section 3(f) of Executive Order 12866.
Accordingly, the final rule has not been
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reviewed by the Office of Management
and Budget.
We received no public comments
from industry and we received no
additional information or data that
would alter our assessment of the
NPRM. Therefore, we adopt the
Preliminary Regulatory Analysis for the
NPRM as final. A summary of the
analysis follows:
This rule clarifies 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 also provides a separate
process for LOR reconsideration for
facility owners or operators and State,
local, or Indian tribal government in the
vicinity of the facility. If an LNG or LHG
facility owner or operator or State, local,
or Indian tribal 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
process applies only to LORs issued
after the effective date of the rule.
We do not expect this rule to impose
new regulatory costs on the LNG/LHG
industry because an LNG or LHG facility
owner or operator and State, local, or
Indian tribal 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 rule replaces
the existing process for reconsideration
with the process in new § 127.010, and
applies to new LORs issued after the
effective date of the rule, not to LORs
already issued. For these reasons, no
change in either the burden or the
frequency of requests 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 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. The
Coast Guard received no comments from
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the Small Business Administration on
this rule.
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 burden or the frequency of
requests as a result of this rulemaking.
Therefore, the Coast Guard certifies
under 5 U.S.C. 605(b) that this final rule
will not have a significant economic
impact on a substantial number of small
entities.
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 rule
will not result in such an expenditure,
we do discuss the effects of this rule
elsewhere in this preamble.
C. Assistance for Small Entities
Under section 213(a) of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104–121),
we offered to assist small entities in
understanding the rule so that they
could better evaluate its effects on them
and participate in the rulemaking. The
Coast Guard 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).
H. Civil Justice Reform
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).
E. Federalism
A rule has implications for federalism
under Executive Order 13132,
Federalism, if it has a substantial direct
effect on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government. We have
analyzed this 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
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G. Taking of Private Property
This rule will 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.
This 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 rule under
Executive Order 13045, Protection of
Children from Environmental Health
Risks and Safety Risks. This rule is not
an economically significant rule and
does not create an environmental risk to
health or risk to safety that may
disproportionately affect children.
J. Indian Tribal Governments
This rule does not have tribal
implications under Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments. This
rule does give Indian tribal governments
in the vicinity of the facility the option
to request reconsideration of Coast
Guard LORs for that facility, but it does
not have a substantial direct effect on
one or more Indian tribes, on the
relationship between the Federal
Government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
Government and Indian tribes.
K. Energy Effects
We have analyzed this rule under
Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use. We have
determined that it is not a ‘‘significant
energy action’’ under that order because
it is not a ‘‘significant regulatory action’’
under Executive Order 12866 and is not
likely to have a significant adverse effect
on the supply, distribution, or use of
energy. The Administrator of the Office
of Information and Regulatory Affairs
has not designated it as a significant
energy action. Therefore, it does not
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require a Statement of Energy Effects
under Executive Order 13211.
PART 127—WATERFRONT FACILITIES
HANDLING LIQUEFIED NATURAL GAS
AND LIQUEFIED HAZARDOUS GAS
L. Technical Standards
The National Technology Transfer
and Advancement Act (15 U.S.C. 272
note) directs agencies to use voluntary
consensus standards in their regulatory
activities unless the agency provides
Congress, through the Office of
Management and Budget, with an
explanation of why using these
standards would be inconsistent with
applicable law or otherwise impractical.
Voluntary consensus standards are
technical standards (e.g., specifications
of materials, performance, design, or
operation; test methods; sampling
procedures; and related management
systems practices) that are developed or
adopted by voluntary consensus
standards bodies.
This rule does not use technical
standards. Therefore, we did not
consider the use of voluntary consensus
standards.
M. Environment
We have analyzed this 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. 4321–4370h), and
have concluded that this action is one
of a category of actions that do not
individually or cumulatively have a
significant effect on the human
environment. This rule involves
creating a separate process for
reconsideration of LORs and is
categorically excluded under section
2.B.2, figure 2–1, paragraph (34)(a) of
the Instruction, which includes
regulations that are editorial or
procedural, such as those updating
addresses or establishing application
procedures. An environmental analysis
checklist and a categorical exclusion
determination are available in the
docket where indicated under the
ADDRESSES section of this preamble.
List of Subjects in 33 CFR Part 127
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Fire prevention, Harbors, Hazardous
substances, Natural gas, Reporting and
recordkeeping requirements, Security
measures.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 127 as follows:
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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 § 127.009 to read as follows:
§ 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;
(3) Locks, bridges, or other man-made
obstructions in the waterway;
(4) Following factors adjacent to the
facilitysuch 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,
local, or Indian tribal 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, local, or Indian tribal
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
December 28, 2012. For LORs issued
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Fmt 4700
Sfmt 4700
prior to that date, persons requesting
reconsideration must follow the process
set forth in § 127.015.
■ 3. Add § 127.010 to read as follows:
§ 127.010 Reconsideration of the Letter of
Recommendation.
(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
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 District Commander
should instruct the COTP to 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 this paragraph (c), 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
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Federal Register / Vol. 77, No. 229 / Wednesday, November 28, 2012 / Rules and Regulations
§ 127.009(c) may request
reconsideration of that revised LOR
using the process beginning in
paragraph (a) of this section.
If
you have questions on this temporary
rule, call or email Ensign William
Hawn, U.S. Coast Guard Sector San
Francisco; telephone (415) 399–7442 or
email at D11-PFMarineEvents@uscg.mil. If you have
questions on viewing the docket, call
Renee V. Wright, Program Manager,
Docket Operations, telephone (202)
366–9826.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
Dated: November 14, 2012.
J.G. Lantz,
Director of Commercial Regulations and
Standards, U.S. Coast Guard.
[FR Doc. 2012–28794 Filed 11–27–12; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF HOMELAND
SECURITY
Table of Acronyms
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
Coast Guard
33 CFR Part 165
[Docket No. USCG–2012–0945]
RIN 1625–AA00
Safety Zone; Bay Bridge Construction,
San Francisco Bay, San Francisco, CA
Coast Guard, DHS.
ACTION: Temporary final rule.
AGENCY:
The Coast Guard is
establishing a temporary safety zone in
the navigable waters of the San
Francisco Bay near Yerba Buena Island,
CA in support of the Bay Bridge
Construction Safety Zone from
November 1, 2012 through July 31,
2013. This safety zone is being
established to protect mariners
transiting the area from the dangers
associated with over-head construction
operations. Unauthorized persons or
vessels are prohibited from entering
into, transiting through, or remaining in
the safety zone without permission of
the Captain of the Port or their
designated representative.
DATES: This rule is effective with actual
notice from 12:01 a.m. on November 1,
2012 through November 28, 2012. This
rule is effective in the Federal Register
from November 28, 2012 until 11:59
p.m. on July 31, 2013.
ADDRESSES: Documents mentioned in
this preamble are part of docket USCG–
2012–0945. To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type the docket
number in the ‘‘SEARCH’’ box and click
‘‘SEARCH.’’ Click on Open Docket
Folder on the line associated with this
rulemaking. You may also visit 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.
erowe on DSK2VPTVN1PROD with
SUMMARY:
VerDate Mar<15>2010
11:33 Nov 27, 2012
Jkt 229001
A. Regulatory History and Information
The Coast Guard is issuing this final
rule without prior notice and
opportunity to comment pursuant to
authority under section 4(a) of the
Administrative Procedure Act (APA) (5
U.S.C. 553(b)). This provision
authorizes an agency to issue a rule
without prior notice and opportunity to
comment when the agency for good
cause finds that those procedures are
‘‘impracticable, unnecessary, or contrary
to the public interest.’’
Under 5 U.S.C. 553(b)(B), the Coast
Guard finds that good cause exists for
not publishing a notice of proposed
rulemaking (NPRM) with respect to this
rule because publishing an NPRM
would be impracticable. The Coast
Guard received notification of the load
transfer operations on September 25,
2012 and the event would occur before
the rulemaking process would be
completed. Because of the dangers
posed by over-head construction of the
Bay Bridge, the safety zone is necessary
to provide for the safety of mariners
transiting the area.
Under 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for
making this rule effective less than 30
days after publication in the Federal
Register. For the reasons stated above,
delaying the effective date would be
impracticable.
B. Basis and Purpose
The legal basis for the proposed
temporary rule is the Ports and
Waterways Safety Act which authorizes
the Coast Guard to establish safety zones
(33 U.S.C. 1221 et seq.).
CALTRANS will sponsor the Bay
Bridge Construction Safety Zone on
November 1, 2012 through July 31,
2013, in the navigable waters of the San
Francisco Bay near Yerba Buena Island,
CA. Construction is scheduled to take
place from 12:01 a.m. on November 1,
2012 until 11:59 p.m. on July 31, 2013.
Upon commencement of the over-head
PO 00000
Frm 00007
Fmt 4700
Sfmt 4700
70891
construction for the Self-Anchored
Suspension Span, the safety zone will
encompass the navigable waters of the
San Francisco Bay within a box
connected by the following points:
37°49′06″ N, 122°21′17″ W; 37°49′01″ N,
122°21′12″ W; 37°48′48″ N, 122°21′35″
W; 37°48′53″ N, 122°21′40″ W (NAD 83).
The construction is necessary to
facilitate the completion of the Bay
Bridge project. The Bay Bridge is
constructed using a self-anchoring
suspension system that requires
frequent installation and removal of
false work on and around the bridge. A
safety zone is needed to establish a
temporary limited access area on the
waters surrounding the load transfer
operation. A safety zone is necessary to
protect mariners transiting the area from
the dangers associated with the
construction of the Bay Bridge SelfAnchoring Suspension Span.
C. Discussion of the Final Rule
The Coast Guard is establishing a
safety zone in navigable waters around
and under the Bay Bridge within a box
connected by the following points:
37°49′06″ N, 122°21′17″ W; 37°49′01″ N,
122°21′12″ W; 37°48′48″ N, 122°21′35″
W; 37°48′53″ N, 122°21′40″ W (NAD 83)
during construction operations.
Construction on the Self-Anchoring
Suspension Span is scheduled to take
place from 12:01 a.m. on November 1,
2012 until 11:59 p.m. on July 31, 2013.
At the conclusion of the construction
operations the safety zone shall
terminate. The Captain of the Port San
Francisco (COTP) will notify the
maritime community of periods during
which this zone will be enforced via
Broadcast Notice to Mariners in
accordance with 33 CFR 165.7.
The effect of the temporary safety
zone will be to restrict navigation in the
vicinity of the construction operations.
Except for persons or vessels authorized
by the Coast Guard Patrol Commander,
no person or vessel may enter or remain
in the restricted area.
D. Regulatory Analyses
We developed this rule after
considering numerous statutes and
executive orders related to rulemaking.
Below we summarize our analyses
based on 13 of these statutes and
executive orders.
1. Regulatory Planning and Review
This rule is not a significant
regulatory action under section 3(f) of
Executive Order 12866, Regulatory
Planning and Review, as supplemented
by Executive Order 13563, Improving
Regulation and Regulatory Review, and
does not require an assessment of
E:\FR\FM\28NOR1.SGM
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Agencies
[Federal Register Volume 77, Number 229 (Wednesday, November 28, 2012)]
[Rules and Regulations]
[Pages 70886-70891]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-28794]
=======================================================================
-----------------------------------------------------------------------
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule clarifies 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 establishes a
separate process for reconsideration of LORs by the Coast Guard. The
process applies only to LORs issued after the effective date of the
rule.
DATES: This final rule is effective December 28, 2012.
ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-2011-0227 and are available for inspection or
copying at the 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, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays. You may also find this
docket on the Internet by going to https://www.regulations.gov and
inserting ``USCG-2011-0227'' in the ``Search'' box.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Mr. Ken Smith (CG-OES-2), U.S. Coast Guard; telephone
(202) 372-1413, email Ken.A.Smith@uscg.mil. If you have questions on
viewing the docket, call Renee V. Wright, Program Manager, Docket
Operations, telephone (202) 366-9826.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Abbreviations
II. Regulatory History
III. Basis and Purpose
IV. Background
V. Discussion of Comments and Changes
VI. 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. Abbreviations
APA Administrative Procedure Act
CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FERC Federal Energy Regulatory Commission
FR Federal Register
LHG Liquefied hazardous gas
LNG Liquefied natural gas
LOI Letter of Intent
LOR Letter of Recommendation
NEPA National Environmental Policy Act of 1969
NPRM Notice of proposed rulemaking
Pub. L. Public Law
PWSA Ports and Waterways Safety Act of 1972, as amended
U.S.C. United States Code
II. Regulatory History
On December 16, 2011, we published a notice of proposed rulemaking
(NPRM) entitled ``Reconsideration of Letters of Recommendation for
Waterfront Facilities Handling LNG and LHG'' in the Federal Register
(76 FR
[[Page 70887]]
78188). We received two letters commenting on the proposed rule. No
public meeting was requested and none was held.
III. Basis and Purpose
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 waterfront 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 (LOI) to the
Captain of the Port (COTP) of the zone in which the facility is or will
be located. The COTP then issues, to the Federal, State, or local
government agencies having jurisdiction for siting, construction, and
operation of the facility, a Letter of Recommendation (LOR) as to the
suitability of the waterway for LNG or LHG marine traffic related to
the facility.
The Coast Guard issues LORs pursuant to the authority of the Ports
and Waterways Safety Act of 1972, as amended (PWSA) (33 U.S.C. 1221 et
seq.). Section 813 of the Coast Guard Authorization Act of 2010 also
directs the Coast Guard to make a recommendation to the Federal Energy
Regulatory Commission (FERC) as to the suitability of marine traffic
associated with a proposed waterside LNG facility (Pub. L. 111-281, 124
Stat. 2905, 2999) (Oct. 15, 2010), and the LOR meets that requirement.
This rule clarifies the role and purpose of the LOR, and establishes a
separate process for reconsideration of LORs issued by the Coast Guard.
This clarification and establishment of a new process are necessary
because of confusion caused in part by the past practice of
reconsidering LORs using the appeals process set forth in 33 CFR
127.015. We issue this final rule under the authority of the statutes
already described, as well as Department of Homeland Security
Delegation No. 0170.1 and 33 CFR subpart 1.05.
IV. Background
As described above, the Coast Guard issues an LOR in response to an
LOI received from an owner or operator intending to build a new
waterfront facility handling LNG or 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. 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 marine 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. However, in 2010 the Coast Guard changed that
process in a final rule updating the LOI and LOR regulations
(``Revision of LNG and LHG Waterfront Facility General Requirements,''
75 FR 29420 (May 26, 2010)). 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. The
majority of recent LOR recipients have been facilities handling LNG,
and FERC is the jurisdictional agency with exclusive authority to
approve or deny an application for the siting, construction, expansion,
and operation of an LNG terminal. FERC has incorporated into its
regulations the Coast Guard's requirement that the facility owner or
operator submit an LOI (33 CFR 127.007), making submission of the LOI
to the Coast Guard a required element of the facility owner or
operator's application for FERC approval (18 CFR 157.21(a)(1)).
Following the receipt of the facility owner or operator's LOI, the COTP
issues the LOR to FERC, as part of FERC's public comment and decision
making process, as a function of the Coast Guard's subject matter
expertise (33 CFR 127.009). Unlike the LOI, the LOR is not a pre-filing
or a permitting requirement under FERC regulations, and is not a
required element of the facility owner or operator's application to
FERC. The LOR is the Coast Guard's ``comment'' on FERC's proposed
action.
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 use of 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 (APA) (5
U.S.C. 551 et seq.). While we believe LORs should be subject to
internal Coast Guard review, we did not intend to suggest that an LOR
is an agency action, or that the LOR conveys a right or obligation.
As we explained in the NPRM, the LOR is not an ``agency action'' as
that term is defined by the APA or understood in the context of
enforceable legal actions. To constitute agency action for purposes of
the APA, 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.
As discussed above, we believe that some of the past confusion
regarding the 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,\1\ 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.
---------------------------------------------------------------------------
\1\ 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, and when the COTP issues an Order
directing vessel operations. See the detailed discussion in the NPRM
(76 FR 78189).
---------------------------------------------------------------------------
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
[[Page 70888]]
process. The LOR is intended to inform the jurisdictional agency's
process, and therefore should be available to the jurisdictional agency
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.
V. Discussion of Comments and Changes
The Coast Guard received two letters commenting on this proposed
rulemaking: one from the Attorney General for the State of Rhode
Island, and one from the Rhode Island Department of Environmental
Management. Both commenters expressed the opinion that issuance of an
LOR constitutes an agency action under the APA, and one expressed the
opinion that the issuance of an LOR is a major federal action that
triggers the environmental impact analysis requirements of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370h). The
Coast Guard disagrees with these comments.
Pursuant to the Natural Gas Act, as amended, FERC possesses the
exclusive authority to approve or deny an application for the siting,
construction, expansion, and operation of a waterfront LNG facility
(see 15 U.S.C. 717b(e)). Similarly, for proposals to site, construct,
expand, or operate a waterfront LHG facility, the agency with
jurisdiction (Federal, State, or local) over the project possesses
approval authority. The agency with jurisdiction over the proposed
action of siting, constructing, or operating the waterfront LNG or LHG
facility serves as the lead agency responsible for complying with the
applicable environmental review requirements.
Issuance of an LOR is not an ``action'' by the Coast Guard under
the APA or NEPA. The LOR is not the functional equivalent of a permit
or a form of permission that substantively affects a license, nor is it
a ``determination'' that can be enforced. The Coast Guard has no
jurisdiction to authorize the siting, construction, and operation of
waterfront LNG and LHG facilities. Jurisdictional agencies, such as
FERC, are not required to issue or deny a license or other
authorization based on the recommendations contained in an LOR, or
impose any recommended mitigation measures as terms of the
authorization, even where the LOR is required. The Coast Guard has no
authority over the content of the jurisidictional agency's license or
permit. Although the Coast Guard is required to provide recommendations
to FERC under section 813 of the Coast Guard Authorization Act of 2010,
(Pub. L. 111-281, 124 Stat. 2905, 2999 (Oct. 15, 2010)), FERC is not
prohibited from issuing an order without having received a Coast Guard
recommendation. For these reasons, the LOR does not ``substantively
affect'' a license or licensing process as suggested by the commenters.
The LOR merely provides information for the jurisdictional agency to
consider in its own deliberative process.
Furthermore, issuing an LOR neither authorizes nor prohibits vessel
transit to or from the LNG or LHG facility. If safety or security
concerns prompted the Coast Guard to address vessel operations near the
facility, the Coast Guard Captain of the Port (COTP) would do so in a
COTP order; that COTP order would be issued pursuant to specific
authority granted by the Ports and Waterways Safety Act (PWSA) (33
U.S.C. 1221 et seq.) that is wholly independent of, and does not rely
on or enforce, an LOR. To interpret the LOR as a Federal agency action
under the APA would impermissibly detract from the jurisdictional
agency's authority to license the siting, construction, and operation
of LNG and LHG waterfront facilities.
Issuing an LOR is not a major Federal action that triggers an
independent duty to prepare an environmental impact analysis under
NEPA. NEPA requires FERC, as the responsible official for the
permitting process, to consult with agencies that have special
expertise with respect to any environmental impact involved (42 U.S.C.
4332(C)). There is no requirement, however, that the agency consulted
prepare a separate environmental impact statement (42 U.S.C. 4332; see
also 40 CFR 1501.5). The Coast Guard, as an agency with subject matter
expertise in matters affecting the safety and security of the waterway,
serves as a cooperating agency to the jurisdictional agency (see 40 CFR
1501.6). In this role as a cooperating agency, and in accordance with
33 CFR Part 127, the Coast Guard makes its recommendation as to the
suitability of the waterway to the Federal, State, or local government
agency with jurisdiction. This recommendation, communicated in the LOR,
is a document to be used in the jurisdictional agency's permitting
process. There is no requirement that it independently comply with NEPA
or other environmental compliance statutes.
For the reasons explained above, the LOR is not an ``agency
action'' under the APA or a major Federal action under NEPA. The Coast
Guard has made no change to the proposed rule in response to the
comments received.
The Coast Guard did change the rule by adding the words ``Indian
tribal government'' to the list of entities that may request
reconsideration of the LOR pursuant to the revised Sec. 127.009(c),
with conforming changes in revised Sec. 127.009(d). As we explained in
our NPRM, new Sec. 127.009(c) is intended to provide opportunity for
additional discussion with governmental entities in the vicinity of the
facility who may have unique information about the safety and security
of the waterway (76 FR 78190). In our NPRM we provided notice and
opportunity for public comment on this optional participation of local
government entities in the reconsideration process. Like State and
local governments, Indian tribal governments in the vicinity of a
facility may be able to provide unique information regarding safety and
security issues affecting the suitability of certain waterways, and
logically would be included among the entities that may choose to
request reconsideration. Adding Indian tribal governments to the list
of entities will avoid any ambiguity as to their inclusion, and does
not alter the intent or expected effect of the rule.
Separately, the Coast Guard slightly reworded new Sec.
127.010(c)(1) for clarity. Both changes are nonsubstantive
clarifications for which prior notice and public comment is unnecessary
under 5 U.S.C. 553(b)(B).
VI. Regulatory Analyses
We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 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 final rule has not been designated a
``significant regulatory action'' under section 3(f) of Executive Order
12866. Accordingly, the final rule has not been
[[Page 70889]]
reviewed by the Office of Management and Budget.
We received no public comments from industry and we received no
additional information or data that would alter our assessment of the
NPRM. Therefore, we adopt the Preliminary Regulatory Analysis for the
NPRM as final. A summary of the analysis follows:
This rule clarifies 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 also provides a separate process for LOR
reconsideration for facility owners or operators and State, local, or
Indian tribal government in the vicinity of the facility. If an LNG or
LHG facility owner or operator or State, local, or Indian tribal
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 process applies only to LORs issued
after the effective date of the rule.
We do not expect this rule to impose new regulatory costs on the
LNG/LHG industry because an LNG or LHG facility owner or operator and
State, local, or Indian tribal 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 rule replaces the existing process for
reconsideration with the process in new Sec. 127.010, and applies to
new LORs issued after the effective date of the rule, not to LORs
already issued. For these reasons, no change in either the burden or
the frequency of requests 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 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.
The Coast Guard received no comments from the Small Business
Administration on this rule.
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 burden or the frequency of
requests as a result of this rulemaking. Therefore, the Coast Guard
certifies under 5 U.S.C. 605(b) that this final rule will not have a
significant economic impact on a substantial number of small entities.
C. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking. The Coast Guard
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).
E. Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this 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 rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.
G. Taking of Private Property
This rule will 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 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 rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
J. Indian Tribal Governments
This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments.
This rule does give Indian tribal governments in the vicinity of the
facility the option to request reconsideration of Coast Guard LORs for
that facility, but it does not have a substantial direct effect on one
or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
K. Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not
[[Page 70890]]
require a Statement of Energy Effects under Executive Order 13211.
L. Technical Standards
The National Technology Transfer and Advancement Act (15 U.S.C. 272
note) directs agencies to use voluntary consensus standards in their
regulatory activities unless the agency provides Congress, through the
Office of Management and Budget, with an explanation of why using these
standards would be inconsistent with applicable law or otherwise
impractical. Voluntary consensus standards are technical standards
(e.g., specifications of materials, performance, design, or operation;
test methods; sampling procedures; and related management systems
practices) that are developed or adopted by voluntary consensus
standards bodies.
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
M. Environment
We have analyzed this 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. 4321-4370h), and have concluded
that this action is one of a category of actions that do not
individually or cumulatively have a significant effect on the human
environment. This rule involves creating a separate process for
reconsideration of LORs and is categorically excluded under section
2.B.2, figure 2-1, paragraph (34)(a) of the Instruction, which includes
regulations that are editorial or procedural, such as those updating
addresses or establishing application procedures. An environmental
analysis checklist and a categorical exclusion determination are
available in the docket where indicated under the ADDRESSES section of
this preamble.
List of Subjects in 33 CFR Part 127
Fire prevention, Harbors, Hazardous substances, Natural gas,
Reporting and recordkeeping requirements, Security measures.
For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 127 as follows:
PART 127--WATERFRONT FACILITIES HANDLING LIQUEFIED NATURAL GAS AND
LIQUEFIED HAZARDOUS GAS
0
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.
0
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 facilitysuch 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, local, or Indian tribal
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, local, or
Indian tribal 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 December 28, 2012. For LORs issued prior to that date, persons
requesting reconsideration must follow the process set forth in Sec.
127.015.
0
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 District
Commander should instruct the COTP to 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 this paragraph (c), 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
[[Page 70891]]
Sec. 127.009(c) may request reconsideration of that revised LOR using
the process beginning in paragraph (a) of this section.
Dated: November 14, 2012.
J.G. Lantz,
Director of Commercial Regulations and Standards, U.S. Coast Guard.
[FR Doc. 2012-28794 Filed 11-27-12; 8:45 am]
BILLING CODE 9110-04-P