Policy Clarification Concerning Designation of Adjacent Coastal States for Deepwater Port License Applications, 25349-25351 [2013-10080]
Download as PDF
<![CDATA[
pmangrum on DSK3VPTVN1PROD with NOTICES
Federal Register / Vol. 78, No. 83 / Tuesday, April 30, 2013 / Notices
Federal Railroad Administration (FRA)
for a waiver of compliance from certain
provisions of the Federal railroad safety
regulations contained at 49 CFR Part
223, Safety Glazing Standards–
Locomotives, Passenger Cars and
Cabooses. FRA assigned the petition
Docket Number FRA–2013–0035.
LIRR has petitioned FRA for a waiver
of compliance from the glazing
requirements set forth in 49 CFR 223.11
for its locomotive LIRR 5, which was
constructed by General Electric in 1950.
LIRR operates on approximately 1.5
miles of track, and the majority of its
operations are through rural or lightly
populated areas. In its petition, LIRR
states that the existing glazing in its
locomotive is in good condition, and it
has no history of glazing-related
accidents or injuries.
A copy of the petition, as well as any
written communications concerning the
petition, is available for review online at
www.regulations.gov and in person at
the U.S. Department of Transportation’s
Docket Operations Facility, 1200 New
Jersey Avenue SE., W12–140,
Washington, DC 20590. The Docket
Operations Facility is open from 9 a.m.
to 5 p.m., Monday through Friday,
except Federal Holidays.
Interested parties are invited to
participate in these proceedings by
submitting written views, data, or
comments. FRA does not anticipate
scheduling a public hearing in
connection with these proceedings since
the facts do not appear to warrant a
hearing. If any interested party desires
an opportunity for oral comment, they
should notify FRA, in writing, before
the end of the comment period and
specify the basis for their request.
All communications concerning these
proceedings should identify the
appropriate docket number and may be
submitted by any of the following
methods:
• Web site: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
• Fax: 202–493–2251.
• Mail: Docket Operations Facility,
U.S. Department of Transportation, 1200
New Jersey Avenue SE., W12–140,
Washington, DC 20590.
• Hand Delivery: 1200 New Jersey
Avenue SE., Room W12–140,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal Holidays.
Communications received by June 14,
2013 will be considered by FRA before
final action is taken. Comments received
after that date will be considered as far
as practicable.
Anyone is able to search the
electronic form of any written
VerDate Mar<15>2010
13:22 Apr 29, 2013
Jkt 229001
communications and comments
received into any of our dockets by the
name of the individual submitting the
comment (or signing the document, if
submitted on behalf of an association,
business, labor union, etc.). See https://
www.regulations.gov/#!privacyNotice
for the privacy notice of regulations.gov
or interested parties may review DOT’s
complete Privacy Act Statement in the
Federal Register published on April 11,
2000 (65 FR 19477).
Issued in Washington, DC, on April 24,
2013.
Robert C. Lauby,
Deputy Associate Administrator for
Regulatory and Legislative Operations.
[FR Doc. 2013–10074 Filed 4–29–13; 8:45 am]
BILLING CODE 4910–06–P
DEPARTMENT OF TRANSPORTATION
Maritime Administration
Policy Clarification Concerning
Designation of Adjacent Coastal States
for Deepwater Port License
Applications
Maritime Administration,
Department of Transportation.
ACTION: Notice of policy clarification.
AGENCY:
SUMMARY: The Maritime Administration
(‘‘MarAd’’) is providing this notice to
clarify its policy on the unit of distance
measurement to apply when designating
Adjacent Coastal States (‘‘ACS’’) under
the agency’s Deepwater Ports licensing
program.
FOR FURTHER INFORMATION CONTACT: Ms.
Yvette Fields, Director of the Office of
Deepwater Ports and Offshore Activity,
Maritime Administration, Room W21–
309, 1200 New Jersey Ave. SE.,
Washington, DC 20590;
Yvette.Fields@dot.gov; phone (202) 366–
0926.
SUPPLEMENTARY INFORMATION: MarAd
has reviewed policies and practices
with regard to the designation of ACS in
the deepwater port application licensing
process. In past applications and public
notices, MarAd found inconsistency in
the use of units of distance to describe
the distance between proposed
deepwater ports and ACS.
Under 33 U.S.C. 1508(a)(1), when
issuing a Notice of Application, MarAd,
as delegated 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
PO 00000
Frm 00098
Fmt 4703
Sfmt 4703
25349
of measurement provided by the
deepwater port license applicants in
their descriptions of proposed
deepwater ports. At different times,
MarAd used statute miles
(approximately 0.87 nautical miles) or
nautical miles (approximately 1.15
statute miles) to describe the location of
deepwater ports in its publications.
Due to the configuration and physical
location of proposed deepwater port
projects in prior applications, the use of
either statute or nautical miles did not
impact the designation of ACS, since
those 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. However, for proposed
port locations where the chosen
distance standard is significant to the
designation of ACS (applications where
the port location falls beyond 15 statute
miles but within 15 nautical miles of a
potential ACS), clarification of the
distance standard is necessary. For the
sake of clarity in such instances, MarAd
is issuing this Final Notice of 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
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: (1) If
the ACS would be ‘‘directly connected
by pipeline to a deepwater port,’’ or (2)
‘‘would be located within 15 miles of
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. Sec. 1502(9)(B).
E:\FR\FM\30APN1.SGM
30APN1
25350
Federal Register / Vol. 78, No. 83 / Tuesday, April 30, 2013 / Notices
pmangrum on DSK3VPTVN1PROD with NOTICES
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 measured 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
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
4 Id. 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 5,280 feet.
6 One nautical mile equals 6,076 feet.
7 33 U.S.C. 1501(a)(1–2).
8 Id. Sec. 1502(5).
9 Id. Sec. 1502(12).
VerDate Mar<15>2010
13:22 Apr 29, 2013
Jkt 229001
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 U.S. 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 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,18 the Supreme
Court considered the extent of
10 15 U.S.T. 1606 (U.S. Treaty). This treaty was
ratified by the United States on March 24, 1961, and
entered into force on September 10, 1964.
11 Id.
12 United Nations Convention on the Law of the
Sea, Art. 2–3, Art. 33, Dec. 10, 1982, 1833 U.N.T.S.
397.
13 See, e.g., Proclamation No. 5928, 54 FR 777
(Dec. 27, 1988) (‘‘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.
16 43 U.S.C. 1301(b).
17 Id. § 1312.
18 U.S. v. California, 381 U.S. 139(1965).
PO 00000
Frm 00099
Fmt 4703
Sfmt 4703
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 * * *.’’ 19 The
Court further explained that ‘‘one
English, statute, or land mile equals
approximately 0.87 geographical,
marine, or nautical mile. The
conventional ‘3-mile limit’ under
international law refers to three
geographical miles, or approximately
3.45 land miles.’’ 20
In defining the term ‘‘coastal
environment’’, the DWPA explicitly
refers to ‘‘navigable waters (including
the lands therein and thereunder).’’ 21
This definition is similar to what is
found in the SLA’s statement of purpose
(‘‘lands beneath navigable waters within
State boundaries’’ 22). As noted above,
the SLA confers upon States possession
of title to, and ownership of the ‘‘lands
beneath navigable waters within [their]
boundaries,’’ 23 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,’’ 24 which is measured
in geographical (nautical) miles.
Moreover, the Senate Report noted, a
coastal State’s jurisdiction would
normally end at the State’s threenautical mile seaward boundary and the
State would have no authority over
offshore activity beyond that point.
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.
19 381
U.S.C. at 148.
at Fn. 8.
21 See supra Fn. 16.
22 67 Stat. 29.
23 Id.
24 1974 U.S.C.C.A.N. 7529, 7538.
20 Id.
E:\FR\FM\30APN1.SGM
30APN1
Federal Register / Vol. 78, No. 83 / Tuesday, April 30, 2013 / Notices
In addition to the legislative history,
the regulatory history of the Deepwater
Ports program provides further 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.25
Although the definition for ‘‘mile’’ was
subsequently removed in a May 20,
2003 Notice of Proposed Rulemaking
and did 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.26
Discussion of Comments
MarAd published a Notice of
Proposed Policy Clarification on
Tuesday, March 5, 2013 (78 FR 14411).
Interested persons were invited to
submit comments on the proposed
policy clarification by April 4, 2013.
MarAd received one comment. The
comment and MarAd’s response is set
forth in the following paragraph.
Clean Ocean Action, a coalition of
diverse groups interested in improving
the water quality of the New Jersey and
New York coastal marine environment
offered their support of the agency’s
analysis stating,
Clearly, the MARAD analysis of the
Congressional Record, international law, and
related domestic U.S. law properly led to the
conclusion that ‘‘miles’’, for the purposes of
Deepwater Ports, means nautical miles.
MarAd values Clean Ocean Action’s
input.
Accordingly, as a result of its
interpretation of the DWPA, its
legislative history, and implementing
regulations, MarAd will apply nautical
miles when designating ACS in future
Notices of Application under 33 U.S.C.
1508(a)(1).
Authority: 33 U.S.C. 1501, et seq.; 49 CFR
1.93(h)(1).
Dated: April 24, 2013.
By Order of the Maritime Administrator.
Julie Agarwal,
Secretary, Maritime Administration.
pmangrum on DSK3VPTVN1PROD with NOTICES
[FR Doc. 2013–10080 Filed 4–29–13; 8:45 am]
BILLING CODE 4910–81–P
25 40
FR 52554 (Nov. 10, 1975).
33 CFR 2.1(a) (‘‘The purpose of this part
is to define terms the 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.’’)
26 See
VerDate Mar<15>2010
13:22 Apr 29, 2013
Jkt 229001
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
[Docket No. NHTSA–2013–0002]
Reports, Forms, and Recordkeeping
Requirements
National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation.
ACTION: Notice.
AGENCY:
SUMMARY: In compliance with the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.), this notice
announces that the Information
Collection Request (ICR) abstracted
below has been forwarded to the Office
of Management and Budget (OMB) for
review and comment. The ICR describes
the nature of the information collection
and the expected burden. The Federal
Register Notice with a 60-day comment
period was published on January 11,
2013.
DATES: Comments must be received on
or before May 30, 2013.
ADDRESSES: Send comments, within 30
days, to the Office of Information and
Regulatory Affairs, Office of
Management and Budget, 725–17th
Street NW., Washington, DC 20503,
Attention: NHTSA Desk Officer.
Comments are invited on: Whether
the proposed collection of information
is necessary for the proper performance
of the functions of the Department,
including whether the information will
have practical utility; the accuracy of
the Department’s estimate of the burden
of the proposed information collection;
ways to enhance the quality, utility and
clarity of the information to be
collected; and ways to minimize the
burden of the collection of information
on respondents, including the use of
automated collection techniques or
other forms of information technology.
A Comment to OMB is most effective
if OMB receives it within 30 days of
publication.
FOR FURTHER INFORMATION CONTACT:
Mike Joyce, NHTSA, 1200 New Jersey
Avenue SE., W52–238, NPO–520,
Washington, DC 20590. Mr. Joyce’s
telephone number is (202) 366–5600
and email address is
mike.joyce@dot.gov.
Docket: For access to the docket to
read background documents, go to
https://www.regulations.gov, or the street
address listed above. Follow the online
instructions for accessing the dockets.
SUPPLEMENTARY INFORMATION: In
compliance with the Paperwork
Reduction Act of 1995, NHTSA
PO 00000
Frm 00100
Fmt 4703
Sfmt 4703
25351
previously opened a docket for a 60-day
comment period. Based upon comment
to the docket, NHTSA modified its
research plan. This notice announces
that the ICR abstracted below has been
forwarded to OMB for review and
comment. The ICR describes the nature
of the information collection and the
expected burden. This is a request for
new collection.
Title: Advanced Crash Avoidance
Technologies Consumer Research.
OMB Control Number: 2127–XXXX.
Form Number: None.
Type of Request: New collection.
Affected Public: For the focus group
phase of this collection, NHTSA plans
to conduct a total of 9 focus groups,
each lasting approximately two hours.
In each group, 8 participants will be
seated. Therefore, a total of 72 people
will participate in the group sessions.
For recruiting of these participants,
however, a total of 108 potential
participants (12 per group) will be
recruited via telephone screening calls,
which are estimated to take 10 minutes
per call. Based on experience, it is
prudent to recruit up to 12 people per
group in order to ensure at least 8 will
appear at the focus group facility at the
appointed time.
Thus, the total burden per person
actually participating in this focus
group phase of research is estimated to
be 130 minutes (10 minutes for the
screening/recruiting telephone call plus
120 minutes in the focus group
discussion session). Additionally, the
total burden per person recruited (but
not participating in the discussions) is
10 minutes. Therefore, the total annual
estimated burden imposed by this
portion of the collection is
approximately 162 hours.
NHTSA also plans to conduct eight
30-minute dealer interviews.
Accounting for recruiting and
interviewing time, the total annual
estimated burden imposed by this
portion of the collection is
approximately 8 hours.
In total, the annual estimated burden
imposed by this collection of
information is approximately 170 hours.
Estimated Total Annual Burden: 170
hours.
Number of Respondents: 80.
Abstract: The National Highway
Traffic Safety Administration (NHTSA)
was established by the Highway Safety
Act of 1970 (23 U.S.C. 101) to carry out
a Congressional mandate to reduce the
mounting number of deaths, injuries,
and economic losses resulting from
motor vehicle crashes on the Nation’s
highways. In support of this mission,
NHTSA proposes to conduct a limited
number of focus group sessions and in-
E:\FR\FM\30APN1.SGM
30APN1
]]>Agencies
[Federal Register Volume 78, Number 83 (Tuesday, April 30, 2013)]
[Notices]
[Pages 25349-25351]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10080]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Maritime Administration
Policy Clarification Concerning Designation of Adjacent Coastal
States for Deepwater Port License Applications
AGENCY: Maritime Administration, Department of Transportation.
ACTION: Notice of policy clarification.
-----------------------------------------------------------------------
SUMMARY: The Maritime Administration (``MarAd'') is providing this
notice to clarify its policy on the unit of distance measurement to
apply when designating Adjacent Coastal States (``ACS'') under the
agency's Deepwater Ports licensing program.
FOR FURTHER INFORMATION CONTACT: Ms. Yvette Fields, Director of the
Office of Deepwater Ports and Offshore Activity, Maritime
Administration, Room W21-309, 1200 New Jersey Ave. SE., Washington, DC
20590; Yvette.Fields@dot.gov; phone (202) 366-0926.
SUPPLEMENTARY INFORMATION: MarAd has reviewed policies and practices
with regard to the designation of ACS in the deepwater port application
licensing process. In past applications and public notices, MarAd found
inconsistency in the use of units of distance to describe the distance
between proposed deepwater ports and ACS.
Under 33 U.S.C. 1508(a)(1), when issuing a Notice of Application,
MarAd, as delegated 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 descriptions
of proposed deepwater ports. At different times, MarAd used statute
miles (approximately 0.87 nautical miles) or nautical miles
(approximately 1.15 statute miles) to describe the location of
deepwater ports in its publications.
Due to the configuration and physical location of proposed
deepwater port projects in prior applications, the use of either
statute or nautical miles did not impact the designation of ACS, since
those 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. However, for proposed
port locations where the chosen distance standard is significant to the
designation of ACS (applications where the port location falls beyond
15 statute miles but within 15 nautical miles of a potential ACS),
clarification of the distance standard is necessary. For the sake of
clarity in such instances, MarAd is issuing this Final Notice of 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 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[hellip]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: (1) If the ACS would be
``directly connected by pipeline to a deepwater port,'' or (2) ``would
be located within 15 miles of
[[Page 25350]]
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 measured 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. Sec. 1502(9)(B).
\4\ Id. 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 5,280 feet.
\6\ One nautical mile equals 6,076 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(a)(1-2).
\8\ Id. Sec. 1502(5).
\9\ Id. 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 U.S. has uniformly applied the
international standard and used nautical miles as the unit of
measurement.\13\
---------------------------------------------------------------------------
\10\ 15 U.S.T. 1606 (U.S. Treaty). This treaty was ratified by
the United States on March 24, 1961, and entered into force on
September 10, 1964.
\11\ Id.
\12\ United Nations Convention on the Law of the Sea, Art. 2-3,
Art. 33, Dec. 10, 1982, 1833 U.N.T.S. 397.
\13\ See, e.g., Proclamation No. 5928, 54 FR 777 (Dec. 27, 1988)
(``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,\18\ 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 * * *.'' \19\ The Court
further explained that ``one English, statute, or land mile equals
approximately 0.87 geographical, marine, or nautical mile. The
conventional `3-mile limit' under international law refers to three
geographical miles, or approximately 3.45 land miles.'' \20\
---------------------------------------------------------------------------
\14\ 67 Stat. 29.
\15\ Id.
\16\ 43 U.S.C. 1301(b).
\17\ Id. Sec. 1312.
\18\ U.S. v. California, 381 U.S. 139(1965).
\19\ 381 U.S.C. at 148.
\20\ Id. at Fn. 8.
---------------------------------------------------------------------------
In defining the term ``coastal environment'', the DWPA explicitly
refers to ``navigable waters (including the lands therein and
thereunder).'' \21\ This definition is similar to what is found in the
SLA's statement of purpose (``lands beneath navigable waters within
State boundaries'' \22\). As noted above, the SLA confers upon States
possession of title to, and ownership of the ``lands beneath navigable
waters within [their] boundaries,'' \23\ and applies geographical
(nautical) miles for that purpose.
---------------------------------------------------------------------------
\21\ See supra Fn. 16.
\22\ 67 Stat. 29.
\23\ Id.
---------------------------------------------------------------------------
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,'' \24\ which is measured in geographical (nautical) miles.
Moreover, the Senate Report noted, a coastal State's jurisdiction would
normally end at the State's three-nautical mile seaward boundary and
the State would have no authority over offshore activity beyond that
point.
---------------------------------------------------------------------------
\24\ 1974 U.S.C.C.A.N. 7529, 7538.
---------------------------------------------------------------------------
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.
[[Page 25351]]
In addition to the legislative history, the regulatory history of
the Deepwater Ports program provides further 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.\25\
Although the definition for ``mile'' was subsequently removed in a May
20, 2003 Notice of Proposed Rulemaking and did 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.\26\
---------------------------------------------------------------------------
\25\ 40 FR 52554 (Nov. 10, 1975).
\26\ See 33 CFR 2.1(a) (``The purpose of this part is to define
terms the 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.'')
---------------------------------------------------------------------------
Discussion of Comments
MarAd published a Notice of Proposed Policy Clarification on
Tuesday, March 5, 2013 (78 FR 14411). Interested persons were invited
to submit comments on the proposed policy clarification by April 4,
2013. MarAd received one comment. The comment and MarAd's response is
set forth in the following paragraph.
Clean Ocean Action, a coalition of diverse groups interested in
improving the water quality of the New Jersey and New York coastal
marine environment offered their support of the agency's analysis
stating,
Clearly, the MARAD analysis of the Congressional Record,
international law, and related domestic U.S. law properly led to the
conclusion that ``miles'', for the purposes of Deepwater Ports,
means nautical miles.
MarAd values Clean Ocean Action's input.
Accordingly, as a result of its interpretation of the DWPA, its
legislative history, and implementing regulations, MarAd will apply
nautical miles when designating ACS in future Notices of Application
under 33 U.S.C. 1508(a)(1).
Authority: 33 U.S.C. 1501, et seq.; 49 CFR 1.93(h)(1).
Dated: April 24, 2013.
By Order of the Maritime Administrator.
Julie Agarwal,
Secretary, Maritime Administration.
[FR Doc. 2013-10080 Filed 4-29-13; 8:45 am]
BILLING CODE 4910-81-P
