Notice of Proposed Policy Clarification Concerning Designation of Adjacent Coastal States for Deepwater Port License Applications, 14411-14413 [2013-05007]

Download as PDF Federal Register / Vol. 78, No. 43 / Tuesday, March 5, 2013 / Notices emcdonald on DSK67QTVN1PROD with NOTICES 1493). Each of these 12 applicants has requested renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the requirement specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption requirements. These factors provide an adequate basis for predicting each driver’s ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption. Request for Comments FMCSA will review comments received at any time concerning a particular driver’s safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by April 4, 2013. FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published notices of final disposition announcing its decision to exempt these 12 individuals from the vision requirement in 49 CFR 391.41(b)(10). The final decision to grant an exemption to each of these individuals was made on the merits of each case and made only after careful consideration of the comments received to its notices of applications. The notices of applications stated in detail the qualifications, experience, and medical condition of each applicant for an exemption from the vision requirements. That information is available by consulting the above cited Federal Register publications. Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of VerDate Mar<15>2010 15:14 Mar 04, 2013 Jkt 229001 the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver. Issued on: February 27, 2013. Larry W. Minor, Associate Administrator for Policy. [FR Doc. 2013–05096 Filed 3–4–13; 8:45 am] BILLING CODE 4910–EX–P DEPARTMENT OF TRANSPORTATION Maritime Administration Notice of Proposed Policy Clarification Concerning Designation of Adjacent Coastal States for Deepwater Port License Applications Maritime Administration, DOT. Notice of proposed policy clarification. AGENCY: ACTION: SUMMARY: The Maritime Administration (‘‘MarAd’’) is seeking comments on a proposed policy clarification for deepwater port license applications. Specifically, nautical miles shall be applied when designating Adjacent Coastal States under 33 U.S.C. 1508(a)(1). DATES: Written public comments regarding this MarAd policy clarification shall be submitted by April 4, 2013. ADDRESSES: The public docket for USCG–2012–0927 is maintained by the: Department of Transportation, Docket Management Facility, West Building, Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590–0001. The Federal Docket Management Facility accepts hand-delivered submissions and makes docket contents available for public inspection and copying at this address between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Facility telephone number is 202–366–9329, the fax number is 202–493–2251, and the Web site for electronic submissions or for electronic access to docket contents is https://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Ms. Yvette Fields, Maritime Administration, at (202) 366–0926 or Yvette.Fields@dot.gov. If you have questions regarding viewing the Docket, contact Renee V. Wright, Program Manager, Docket Operations, at (202) 493–0402. SUPPLEMENTARY INFORMATION: MarAd has reviewed policies and practices with regard to designation of Adjacent Coastal States (‘‘ACS’’) in the deepwater PO 00000 Frm 00148 Fmt 4703 Sfmt 4703 14411 port application licensing process. In past applications and public notices, MarAd found inconsistency in the use of units of distance in describing the distance between proposed deepwater ports and ACS. Under 33 U.S.C. 1508(a)(1), when issuing a Notice of Application, MarAd, as designated by the Secretary of Transportation, shall designate as an ACS ‘‘any coastal State which (A) would be directly connected by pipeline to a deepwater port as proposed in an application, or (B) would be located within 15 miles of any such proposed deepwater port.’’ In general, in its publications, MarAd adopted the units of measurement provided by the deepwater port license applicants in their description of their proposed deepwater ports. At different times, MarAd used statute miles (approximately .87 nautical miles) or nautical miles (approximately 1.15 statute miles) in describing the location of deepwater ports in its publications. Due to the configuration and the physical location of proposed deepwater port projects in prior applications, the use of statute or nautical miles did not impact the designation of an ACS, since these projects were either connected to the ACS directly by pipeline, or were within both 15 statute and 15 nautical miles from those states. As a result, MarAd was not required to clarify which unit of measurement is the appropriate distance standard to apply when designating an ACS in Notices of Application. For proposed deepwater port locations where the chosen distance standard is significant to the designation of ACS (applications where the port location falls between 15 statute and 15 nautical miles of a potential ACS), however, clarification of the standard measure is necessary. For the sake of clarity in such instances, MarAd is issuing this notice of proposed policy clarification that nautical miles shall be applied when designating ACS under 33 U.S.C. 1508(a)(1). The Deepwater Port Act (‘‘DWPA’’ or the ‘‘Act’’) (33 U.S.C. 1501 et seq.) authorizes the Secretary of Transportation to issue licenses for the construction and operation of deepwater ports.1 A deepwater port is defined in Section 1502 of the Act as ‘‘any fixed or floating manmade structure other than a vessel, or any group of such structures, that are located beyond State seaward boundaries and that are used or intended for use as a port or terminal for 1 The Secretary of Transportation delegated to the Maritime Administrator the authority to ‘‘issue, transfer, amend, or reinstate a license for the construction and operation of a deepwater port.’’ 49 CFR 1.93(h)(1). E:\FR\FM\05MRN1.SGM 05MRN1 14412 Federal Register / Vol. 78, No. 43 / Tuesday, March 5, 2013 / Notices the transportation, storage, or further handling of oil or natural gas for transportation to any State * * * .’’ 2 Deepwater ports include ‘‘all components and equipment, including pipelines * * * to the extent they are located seaward of the high water mark.’’ 3 The DWPA provides for a mandatory designation of State(s) as ‘‘Adjacent Coastal State(s)’’ (‘‘ACS’’) if certain criteria are met. Those criteria are if the ACS: (1) Would be ‘‘directly connected by pipeline to a deepwater port,’’ or (2) ‘‘would be located within 15 miles of any such proposed deepwater port.’’ 4 The DWPA does not specify whether the 15 mile geographical limit for the automatic designation of an ACS should be marked in statute miles 5 or nautical miles.6 Congress did not specify how the 15 mile distance should be measured. Nevertheless, an examination of the entire statute and legislative history leads to the conclusion that Congress intended that for these purposes, where units of distance measurement are not specified as statute miles or nautical miles, those units of measurement should be read in terms of generally accepted nautical standards (i.e., nautical miles). In enacting the DWPA, Congress declared its purpose to be, among other things, to: ‘‘(1) authorize and regulate the location, ownership, construction, and operation of deepwater ports in waters beyond the territorial limits of the United States; [and] (2) provide for the protection of the marine and coastal environment to prevent or minimize any adverse impact which might occur as a consequence of the development of such ports.’’ 7 The Act defines the term ‘‘coastal environment’’ in relevant part as: ‘‘the navigable waters (including the lands therein and thereunder) and the adjacent shorelines (including waters therein and thereunder).8 The term ‘‘marine environment’’ is defined as including: ‘‘the coastal environment, waters of the contiguous zone, and waters of the high seas.’’ 9 2 33 U.S.C. 1502(9)(A). at § 1502(9)(B). 4 Id. at § 1502(1)(A)&(B). The Act also provides for a permissive designation of an ACS if, upon petition and provision of evidence, the Maritime Administrator determines that ‘‘there is a risk of damage to the coastal environment of such State equal to or greater than the risk posed to a State directly connected by pipeline to the proposed deepwater port.’’ 33 U.S.C. 1508(a)(2). 5 One statute mile equals 5280 feet. 6 One nautical mile equals 6076 feet. 7 33 U.S.C. 1501(1)&(2). 8 Id. at § 1502(5). 9 Id. at § 1502(12). emcdonald on DSK67QTVN1PROD with NOTICES 3 Id. VerDate Mar<15>2010 15:14 Mar 04, 2013 Jkt 229001 The DWPA does not provide further definition of the terms ‘‘territorial limits,’’ ‘‘navigable waters (including the lands therein and thereunder),’’ or ‘‘contiguous zone.’’ However, these jurisdictional boundaries have well accepted meanings both in international law and United States law and help clarify how the 15 mile jurisdictional area for automatic designation of an ACS should be measured. Article 1 of the Convention on the Territorial Sea and the Contiguous Zone establishes that a Coastal State’s sovereignty extends ‘‘beyond its land territory and internal waters, to a belt of sea adjacent to its coast, described as a territorial sea.’’ 10 Article 24 of the treaty also establishes that a Coastal State may exercise certain authorities in a ‘‘zone of the high seas contiguous to its territorial sea . * * *’’ 11 For purposes of the Treaty, both the Territorial Sea and the Contiguous Zone are measured from the ‘‘baseline,’’ normally the mean low water line along the coast of the United States. The United Nations Convention on the Law of the Sea (‘‘UNCLOS’’) further clarifies the breadth of a Coastal State’s jurisdiction in its Territorial Sea and Contiguous Zone by establishing a seaward limit of ‘‘12 nautical miles’’ and ‘‘24 nautical miles’’ respectively.12 Although the United States has not ratified UNCLOS, it has adopted the jurisdictional areas referenced in UNCLOS. In establishing its territorial limits, the United States has uniformly applied the international standard and used nautical miles as the unit of measurement.13 The Submerged Lands Act (‘‘SLA’’) was enacted in 1953.14 Its purpose was to ‘‘confirm and establish the titles of the States to lands beneath navigable waters within State boundaries and to the natural resources within such lands and waters, to provide for the use and control of said lands and resources, and to confirm the jurisdiction and control of the United States over the natural resources of the seabed of the Continental Shelf seaward of State boundaries.’’ 15 The SLA defines the term ‘‘boundaries’’ in relevant part to include: ‘‘the seaward boundaries of a State * * * but in no event shall the 10 15 U.S.T. 1606. This treaty was ratified by the United States on March 24, 1961, and entered into force on September 10, 1964. 11 Id. 12 UNCLOS Part II, Article 2 and Article 33. 13 See, e.g., Presidential Proclamation No. 5928 of December 27, 1998: ‘‘The territorial sea of the United States henceforth extends to 12 nautical miles from the baselines of the United States determined in accordance with international law.’’ 14 67 Stat. 29. 15 Id. PO 00000 Frm 00149 Fmt 4703 Sfmt 4703 term ‘boundaries’ be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico.’’ 16 The SLA also provides that ‘‘[t]he seaward boundary of each original coastal State is hereby approved and confirmed as a line three geographical miles distant from its coast line * * * .’’ 17 In the case of United States v. California, the Supreme Court considered the extent of submerged lands granted to the State of California by the SLA. After reviewing the SLA and its legislative history, the Court concluded that the SLA ‘‘effectively grants each State on the Pacific coast all submerged lands shoreward of a line three geographical miles from its coast line * * * .’’ 18 The Court further explained that ‘‘one English, statute, or land mile equals approximately .87 geographical, marine, or nautical mile. The conventional ‘3-mile limit’ under international law refers to three geographical miles, or approximately 3.45 land miles.’’ 19 In defining the term ‘‘coastal environment,’’ the DWPA explicitly refers to ‘‘navigable waters (including the lands therein and thereunder).’’ 20 This definition is similar to what is found in the SLA’s statement of purpose (‘‘lands beneath navigable waters within State boundaries’’). As noted above, the SLA confers upon States title to, and ownership of, the ‘‘lands beneath navigable waters within their boundaries,’’ and applies geographical (nautical) miles for that purpose. The legislative history of the DWPA reveals that Congress viewed ACS status as a jurisdictional issue. For example, in the Conference Report to the DWPA, the State’s role in approving a deepwater port is discussed in terms of the threemile limit which is measured in nautical miles. Congress recognized that ‘‘under the Submerged Lands Act * * * the States have either exclusive or concurrent authority with the Federal government over most activities within the 3-mile limit,’’ 21 which is measured in geographical (nautical) miles. Moreover, the Senate Report noted, a Coastal State’s jurisdiction would end at the State’s three-nautical mile seaward boundary and the State would have no authority over the offshore activity. 16 43 U.S.C. 1301(b). at § 1312. 18 U.S. v. California, 381 U.S. 139 at 148 (May 17, 1965). 19 Id. at Fn. 8. 20 See Fn. 16 supra. 21 1974 U.S.C.C.A.N. 7529 at 7538. 17 Id. E:\FR\FM\05MRN1.SGM 05MRN1 Federal Register / Vol. 78, No. 43 / Tuesday, March 5, 2013 / Notices Consistent with Congress’ view of ACS status as a jurisdictional issue, the use of nautical miles to determine ACS status allows for an extension of the State’s jurisdiction to be measured consistently with the measures of jurisdiction required by law. Absent this interpretation, a State’s jurisdiction that is measured in nautical miles would then subsequently be extended by Congress under a different unit of measurement. In addition to the legislative history, the regulatory history of the Deepwater Ports program provides additional support for interpreting the DWPA to apply nautical miles to ACS designations. The original Final Rule in 33 CFR part 148 published on November 10, 1975, defined mile for the purposes of the regulations as a nautical mile.22 Though the definition for ‘‘mile’’ was subsequently removed in a May 20, 2003, Notice of Proposed Rulemaking and does not appear in the Final Rule published on September 29, 2006, 33 CFR part 2 indicates that nautical miles are the appropriate units of measurement to be employed for determining United States Coast Guard jurisdictional definitions where such jurisdictional definitions are not otherwise provided.23 As a result of its interpretation of the DWPA, its legislative history, and implementing regulations, MarAd proposes to apply nautical miles when designating ACS in future Notices of Application under 33 U.S.C. 1508(a)(1). Request for Comments MarAd is seeking comment on the proposed policy clarification and invites interested parties to visit its Web site for background information. MarAd will consider comments in formulating a final notice of policy clarification. DEPARTMENT OF TRANSPORTATION Maritime Administration [Docket No. MARAD–2013 0019] Requested Administrative Waiver of the Coastwise Trade Laws: Vessel LUCKY DUCK; Invitation for Public Comments Maritime Administration, Department of Transportation. ACTION: Notice. AGENCY: SUMMARY: As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below. DATES: Submit comments on or before April 4, 2013. ADDRESSES: Comments should refer to docket number MARAD–2013–0019. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at https://www.regulations.gov. All comments will become part of this docket and will be available for inspection and copying at the above address between 10 a.m. and 5 p.m., E.T., Monday through Friday, except federal holidays. An electronic version of this document and all documents entered into this docket is available on the World Wide Web at https:// www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23–453, Washington, DC 20590. Telephone 202– 366–0903, Email Linda.Williams@dot.gov. Dated: February 28, 2013. By Order of the Maritime Administrator. Julie P. Agarwal, Secretary, Maritime Administration. [FR Doc. 2013–05007 Filed 3–4–13; 8:45 am] BILLING CODE 4910–81–P emcdonald on DSK67QTVN1PROD with NOTICES SUPPLEMENTARY INFORMATION: 22 40 FR 52401 (Nov. 10, 1975). 33 CFR 2.1(a) (‘‘The purpose of this part is to define terms the U. S. Coast Guard uses in regulations, policies, and procedures, to determine whether it has jurisdiction on certain waters where specific jurisdictional definitions are not otherwise provided.’’). 23 See VerDate Mar<15>2010 15:14 Mar 04, 2013 Jkt 229001 As described by the applicant the intended service of the vessel LUCKY DUCK is: Intended Commercial Use Of Vessel: ‘‘The vessel is to be operated as a sailing instruction vessel with a licensed captain and no more than six passengers in San Francisco Bay and outside the Golden Gate. The course will be three days long, with the students living PO 00000 Frm 00150 Fmt 4703 Sfmt 4703 14413 aboard and sailing to different areas of the Bay each day. There will be no more than ten courses offered in a calendar year. This program is being offered to local residents in Orange County, Calif.’’ Geographic Region: ‘‘California’’. The complete application is given in DOT docket MARAD–2013–0019 at https://www.regulations.gov. Interested parties may comment on the effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.flag vessels. If MARAD determines, in accordance with 46 U.S.C. 12121 and MARAD’s regulations at 46 CFR part 388, that the issuance of the waiver will have an unduly adverse effect on a U.S.vessel builder or a business that uses U.S.-flag vessels in that business, a waiver will not be granted. Comments should refer to the docket number of this notice and the vessel name in order for MARAD to properly consider the comments. Comments should also state the commenter’s interest in the waiver application, and address the waiver criteria given in § 388.4 of MARAD’s regulations at 46 CFR Part 388. Privacy Act Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT’s complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477–78). By Order of the Maritime Administrator. Dated: February 26, 2013. Julie P. Agarwal, Secretary, Maritime Administration. [FR Doc. 2013–05061 Filed 3–4–13; 8:45 am] BILLING CODE 4910–81–P DEPARTMENT OF TRANSPORTATION Maritime Administration [Docket No. MARAD–2013 0018] Requested Administrative Waiver of the Coastwise Trade Laws: Vessel LILYANNA; Invitation for Public Comments Maritime Administration, Department of Transportation. ACTION: Notice. AGENCY: SUMMARY: As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build E:\FR\FM\05MRN1.SGM 05MRN1

Agencies

[Federal Register Volume 78, Number 43 (Tuesday, March 5, 2013)]
[Notices]
[Pages 14411-14413]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-05007]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Maritime Administration


Notice of Proposed Policy Clarification Concerning Designation of 
Adjacent Coastal States for Deepwater Port License Applications

AGENCY: Maritime Administration, DOT.

ACTION: Notice of proposed policy clarification.

-----------------------------------------------------------------------

SUMMARY: The Maritime Administration (``MarAd'') is seeking comments on 
a proposed policy clarification for deepwater port license 
applications. Specifically, nautical miles shall be applied when 
designating Adjacent Coastal States under 33 U.S.C. 1508(a)(1).

DATES: Written public comments regarding this MarAd policy 
clarification shall be submitted by April 4, 2013.

ADDRESSES: The public docket for USCG-2012-0927 is maintained by the: 
Department of Transportation, Docket Management Facility, West 
Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., 
Washington, DC 20590-0001.
    The Federal Docket Management Facility accepts hand-delivered 
submissions and makes docket contents available for public inspection 
and copying at this address between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays. The Facility telephone number is 202-
366-9329, the fax number is 202-493-2251, and the Web site for 
electronic submissions or for electronic access to docket contents is 
https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Yvette Fields, Maritime 
Administration, at (202) 366-0926 or Yvette.Fields@dot.gov. If you have 
questions regarding viewing the Docket, contact Renee V. Wright, 
Program Manager, Docket Operations, at (202) 493-0402.

SUPPLEMENTARY INFORMATION: MarAd has reviewed policies and practices 
with regard to designation of Adjacent Coastal States (``ACS'') in the 
deepwater port application licensing process. In past applications and 
public notices, MarAd found inconsistency in the use of units of 
distance in describing the distance between proposed deepwater ports 
and ACS.
    Under 33 U.S.C. 1508(a)(1), when issuing a Notice of Application, 
MarAd, as designated by the Secretary of Transportation, shall 
designate as an ACS ``any coastal State which (A) would be directly 
connected by pipeline to a deepwater port as proposed in an 
application, or (B) would be located within 15 miles of any such 
proposed deepwater port.'' In general, in its publications, MarAd 
adopted the units of measurement provided by the deepwater port license 
applicants in their description of their proposed deepwater ports. At 
different times, MarAd used statute miles (approximately .87 nautical 
miles) or nautical miles (approximately 1.15 statute miles) in 
describing the location of deepwater ports in its publications.
    Due to the configuration and the physical location of proposed 
deepwater port projects in prior applications, the use of statute or 
nautical miles did not impact the designation of an ACS, since these 
projects were either connected to the ACS directly by pipeline, or were 
within both 15 statute and 15 nautical miles from those states. As a 
result, MarAd was not required to clarify which unit of measurement is 
the appropriate distance standard to apply when designating an ACS in 
Notices of Application. For proposed deepwater port locations where the 
chosen distance standard is significant to the designation of ACS 
(applications where the port location falls between 15 statute and 15 
nautical miles of a potential ACS), however, clarification of the 
standard measure is necessary. For the sake of clarity in such 
instances, MarAd is issuing this notice of proposed policy 
clarification that nautical miles shall be applied when designating ACS 
under 33 U.S.C. 1508(a)(1).
    The Deepwater Port Act (``DWPA'' or the ``Act'') (33 U.S.C. 1501 et 
seq.) authorizes the Secretary of Transportation to issue licenses for 
the construction and operation of deepwater ports.\1\ A deepwater port 
is defined in Section 1502 of the Act as ``any fixed or floating 
manmade structure other than a vessel, or any group of such structures, 
that are located beyond State seaward boundaries and that are used or 
intended for use as a port or terminal for

[[Page 14412]]

the transportation, storage, or further handling of oil or natural gas 
for transportation to any State * * * .'' \2\ Deepwater ports include 
``all components and equipment, including pipelines * * * to the extent 
they are located seaward of the high water mark.'' \3\ The DWPA 
provides for a mandatory designation of State(s) as ``Adjacent Coastal 
State(s)'' (``ACS'') if certain criteria are met. Those criteria are if 
the ACS: (1) Would be ``directly connected by pipeline to a deepwater 
port,'' or (2) ``would be located within 15 miles of any such proposed 
deepwater port.'' \4\ The DWPA does not specify whether the 15 mile 
geographical limit for the automatic designation of an ACS should be 
marked in statute miles \5\ or nautical miles.\6\
---------------------------------------------------------------------------

    \1\ The Secretary of Transportation delegated to the Maritime 
Administrator the authority to ``issue, transfer, amend, or 
reinstate a license for the construction and operation of a 
deepwater port.'' 49 CFR 1.93(h)(1).
    \2\ 33 U.S.C. 1502(9)(A).
    \3\ Id. at Sec.  1502(9)(B).
    \4\ Id. at Sec.  1502(1)(A)&(B). The Act also provides for a 
permissive designation of an ACS if, upon petition and provision of 
evidence, the Maritime Administrator determines that ``there is a 
risk of damage to the coastal environment of such State equal to or 
greater than the risk posed to a State directly connected by 
pipeline to the proposed deepwater port.'' 33 U.S.C. 1508(a)(2).
    \5\ One statute mile equals 5280 feet.
    \6\ One nautical mile equals 6076 feet.
---------------------------------------------------------------------------

    Congress did not specify how the 15 mile distance should be 
measured. Nevertheless, an examination of the entire statute and 
legislative history leads to the conclusion that Congress intended that 
for these purposes, where units of distance measurement are not 
specified as statute miles or nautical miles, those units of 
measurement should be read in terms of generally accepted nautical 
standards (i.e., nautical miles).
    In enacting the DWPA, Congress declared its purpose to be, among 
other things, to: ``(1) authorize and regulate the location, ownership, 
construction, and operation of deepwater ports in waters beyond the 
territorial limits of the United States; [and] (2) provide for the 
protection of the marine and coastal environment to prevent or minimize 
any adverse impact which might occur as a consequence of the 
development of such ports.'' \7\ The Act defines the term ``coastal 
environment'' in relevant part as: ``the navigable waters (including 
the lands therein and thereunder) and the adjacent shorelines 
(including waters therein and thereunder).\8\ The term ``marine 
environment'' is defined as including: ``the coastal environment, 
waters of the contiguous zone, and waters of the high seas.'' \9\
---------------------------------------------------------------------------

    \7\ 33 U.S.C. 1501(1)&(2).
    \8\ Id. at Sec.  1502(5).
    \9\ Id. at Sec.  1502(12).
---------------------------------------------------------------------------

    The DWPA does not provide further definition of the terms 
``territorial limits,'' ``navigable waters (including the lands therein 
and thereunder),'' or ``contiguous zone.'' However, these 
jurisdictional boundaries have well accepted meanings both in 
international law and United States law and help clarify how the 15 
mile jurisdictional area for automatic designation of an ACS should be 
measured. Article 1 of the Convention on the Territorial Sea and the 
Contiguous Zone establishes that a Coastal State's sovereignty extends 
``beyond its land territory and internal waters, to a belt of sea 
adjacent to its coast, described as a territorial sea.'' \10\ Article 
24 of the treaty also establishes that a Coastal State may exercise 
certain authorities in a ``zone of the high seas contiguous to its 
territorial sea . * * *'' \11\ For purposes of the Treaty, both the 
Territorial Sea and the Contiguous Zone are measured from the 
``baseline,'' normally the mean low water line along the coast of the 
United States. The United Nations Convention on the Law of the Sea 
(``UNCLOS'') further clarifies the breadth of a Coastal State's 
jurisdiction in its Territorial Sea and Contiguous Zone by establishing 
a seaward limit of ``12 nautical miles'' and ``24 nautical miles'' 
respectively.\12\ Although the United States has not ratified UNCLOS, 
it has adopted the jurisdictional areas referenced in UNCLOS. In 
establishing its territorial limits, the United States has uniformly 
applied the international standard and used nautical miles as the unit 
of measurement.\13\
---------------------------------------------------------------------------

    \10\ 15 U.S.T. 1606. This treaty was ratified by the United 
States on March 24, 1961, and entered into force on September 10, 
1964.
    \11\ Id.
    \12\ UNCLOS Part II, Article 2 and Article 33.
    \13\ See, e.g., Presidential Proclamation No. 5928 of December 
27, 1998: ``The territorial sea of the United States henceforth 
extends to 12 nautical miles from the baselines of the United States 
determined in accordance with international law.''
---------------------------------------------------------------------------

    The Submerged Lands Act (``SLA'') was enacted in 1953.\14\ Its 
purpose was to ``confirm and establish the titles of the States to 
lands beneath navigable waters within State boundaries and to the 
natural resources within such lands and waters, to provide for the use 
and control of said lands and resources, and to confirm the 
jurisdiction and control of the United States over the natural 
resources of the seabed of the Continental Shelf seaward of State 
boundaries.'' \15\ The SLA defines the term ``boundaries'' in relevant 
part to include: ``the seaward boundaries of a State * * * but in no 
event shall the term `boundaries' be interpreted as extending from the 
coast line more than three geographical miles into the Atlantic Ocean 
or the Pacific Ocean, or more than three marine leagues into the Gulf 
of Mexico.'' \16\ The SLA also provides that ``[t]he seaward boundary 
of each original coastal State is hereby approved and confirmed as a 
line three geographical miles distant from its coast line * * * .'' 
\17\ In the case of United States v. California, the Supreme Court 
considered the extent of submerged lands granted to the State of 
California by the SLA. After reviewing the SLA and its legislative 
history, the Court concluded that the SLA ``effectively grants each 
State on the Pacific coast all submerged lands shoreward of a line 
three geographical miles from its coast line * * * .'' \18\ The Court 
further explained that ``one English, statute, or land mile equals 
approximately .87 geographical, marine, or nautical mile. The 
conventional `3-mile limit' under international law refers to three 
geographical miles, or approximately 3.45 land miles.'' \19\
---------------------------------------------------------------------------

    \14\ 67 Stat. 29.
    \15\ Id.
    \16\ 43 U.S.C. 1301(b).
    \17\ Id. at Sec.  1312.
    \18\ U.S. v. California, 381 U.S. 139 at 148 (May 17, 1965).
    \19\ Id. at Fn. 8.
---------------------------------------------------------------------------

    In defining the term ``coastal environment,'' the DWPA explicitly 
refers to ``navigable waters (including the lands therein and 
thereunder).'' \20\ This definition is similar to what is found in the 
SLA's statement of purpose (``lands beneath navigable waters within 
State boundaries''). As noted above, the SLA confers upon States title 
to, and ownership of, the ``lands beneath navigable waters within their 
boundaries,'' and applies geographical (nautical) miles for that 
purpose.
---------------------------------------------------------------------------

    \20\ See Fn. 16 supra.
---------------------------------------------------------------------------

    The legislative history of the DWPA reveals that Congress viewed 
ACS status as a jurisdictional issue. For example, in the Conference 
Report to the DWPA, the State's role in approving a deepwater port is 
discussed in terms of the three-mile limit which is measured in 
nautical miles. Congress recognized that ``under the Submerged Lands 
Act * * * the States have either exclusive or concurrent authority with 
the Federal government over most activities within the 3-mile limit,'' 
\21\ which is measured in geographical (nautical) miles. Moreover, the 
Senate Report noted, a Coastal State's jurisdiction would end at the 
State's three-nautical mile seaward boundary and the State would have 
no authority over the offshore activity.
---------------------------------------------------------------------------

    \21\ 1974 U.S.C.C.A.N. 7529 at 7538.

---------------------------------------------------------------------------

[[Page 14413]]

    Consistent with Congress' view of ACS status as a jurisdictional 
issue, the use of nautical miles to determine ACS status allows for an 
extension of the State's jurisdiction to be measured consistently with 
the measures of jurisdiction required by law. Absent this 
interpretation, a State's jurisdiction that is measured in nautical 
miles would then subsequently be extended by Congress under a different 
unit of measurement.
    In addition to the legislative history, the regulatory history of 
the Deepwater Ports program provides additional support for 
interpreting the DWPA to apply nautical miles to ACS designations. The 
original Final Rule in 33 CFR part 148 published on November 10, 1975, 
defined mile for the purposes of the regulations as a nautical 
mile.\22\ Though the definition for ``mile'' was subsequently removed 
in a May 20, 2003, Notice of Proposed Rulemaking and does not appear in 
the Final Rule published on September 29, 2006, 33 CFR part 2 indicates 
that nautical miles are the appropriate units of measurement to be 
employed for determining United States Coast Guard jurisdictional 
definitions where such jurisdictional definitions are not otherwise 
provided.\23\
---------------------------------------------------------------------------

    \22\ 40 FR 52401 (Nov. 10, 1975).
    \23\ See 33 CFR 2.1(a) (``The purpose of this part is to define 
terms the U. S. Coast Guard uses in regulations, policies, and 
procedures, to determine whether it has jurisdiction on certain 
waters where specific jurisdictional definitions are not otherwise 
provided.'').
---------------------------------------------------------------------------

    As a result of its interpretation of the DWPA, its legislative 
history, and implementing regulations, MarAd proposes to apply nautical 
miles when designating ACS in future Notices of Application under 33 
U.S.C. 1508(a)(1).

Request for Comments

    MarAd is seeking comment on the proposed policy clarification and 
invites interested parties to visit its Web site for background 
information. MarAd will consider comments in formulating a final notice 
of policy clarification.

    Dated: February 28, 2013.

    By Order of the Maritime Administrator.
Julie P. Agarwal,
Secretary, Maritime Administration.
[FR Doc. 2013-05007 Filed 3-4-13; 8:45 am]
BILLING CODE 4910-81-P

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.