[Federal Register Volume 74, Number 80 (Tuesday, April 28, 2009)]
[Proposed Rules]
[Pages 19158-19164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9639]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 127

[Docket No. USCG-2007-27022]
RIN 1625-AB13


Revision of LNG and LHG Waterfront Facility General Requirements

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to revise the requirements for 
waterfront facilities handling liquefied natural gas (LNG) and 
liquefied hazardous gas (LHG). The proposed revisions would bring the 
regulations up to date with existing industry practices and current 
Coast Guard policy implemented due to increased emphasis on security 
since the events of September 11, 2001. These revisions would harmonize 
the Coast Guard's regulations for LNG with those established by the 
Federal Energy Regulatory Commission (FERC), the agency responsible for 
permitting onshore and near-shore LNG terminals. This proposed 
rulemaking would not affect LNG deepwater ports.

DATES: Comments and related material must either be submitted to our 
online docket via http://www.regulations.gov on or before June 29, 2009 
or reach the Docket Management Facility by that date. Comments sent to 
the Office of Management and Budget (OMB) on collection of information 
must reach OMB on or before June 29, 2009.

ADDRESSES: You may submit comments identified by docket number USCG-
2007-27022 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these methods. For 
instructions on submitting comments, see the ``Public Participation and 
Request for Comments'' portion of the SUPPLEMENTARY INFORMATION section 
below.
    Collection of Information Comments: If you have comments on the 
collection of information discussed in section V.D. of this NPRM, you 
must also send comments to the Office of Information and Regulatory 
Affairs (OIRA), Office of Management and Budget. To ensure that your 
comments to OIRA are received on time, the preferred methods are by e-
mail to <a href="/cdn-cgi/l/email-protection#137c7a61724c6066717e7a60607a7c7d537c7e713d767c633d747c65"><span class="__cf_email__" data-cfemail="523d3b20330d2127303f3b21213b3d3c123d3f307c373d227c353d24">[email protected]</span></a> (include the docket number and 
``Attention: Desk Officer for Coast Guard, DHS'' in the subject line of 
the e-mail) or fax at 202-395-6566. An alternate, though slower, method 
is by U.S. mail to the Office of Information and Regulatory Affairs, 
Office of Management and Budget, 725 17th Street, NW., Washington, DC 
20503, ATTN: Desk Officer, U.S. Coast Guard.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call CDR Patrick Clark, CG-5222, U.S. Coast Guard, telephone 202-
372-1410. If you have questions on viewing or submitting material to 
the docket, call Ms. Renee V. Wright, Program Manager, Docket 
Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble

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

I. Public Participation and Request for Comments

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

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2007-27022), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online, or by fax, mail or hand delivery, but please use only one of 
these means. We recommend that you include your name and a mailing 
address, an e-mail address, or a phone number in the body of your 
document so that we can contact you if we have questions regarding your 
submission.
    To submit your comment online, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert ``USCG-2007-27022'' in the Docket ID box, press Enter, 
and then click on the balloon shape in the Actions column. If you 
submit your comments by mail or hand delivery, submit them in an 
unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit them by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope.

[[Page 19159]]

    We will consider all comments and material received during the 
comment period and may change this proposed rule based on your 
comments.

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert (USCG-2007-27022) in the Docket ID box, press Enter, and 
then click on the item in the Docket ID column. If you do not have 
access to the Internet, you may view the docket online by visiting the 
Docket Management Facility in Room W12-140 on the ground floor of the 
Department of Transportation West Building, 1200 New Jersey Avenue, 
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays. We have an agreement with the 
Department of Transportation to use the Docket Management Facility.

C. Privacy Act

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

D. Public Meetings

    We do not now plan to hold a public meeting. But, you may submit a 
request for one to the Docket Management Facility at the address under 
ADDRESSES explaining why one would be beneficial. If we determine that 
a public meeting would aid this rulemaking, we will hold one at a time 
and place announced by a notice in the Federal Register.

II. Abbreviations

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
NPRM Notice of proposed rulemaking
NVIC Navigation and Vessel Inspection Circular
OMB Office of Management and Budget
Sec.  Section symbol
U.S.C. United States Code
WSA Waterway Suitability Assessment

III. Background and Purpose

    Over the last few years, there has been a substantial increase in 
the worldwide production and transportation of liquefied natural gas 
(LNG). Currently, the United States consumes about 25 percent of the 
world's annual natural gas production. Over the next 20 years, U.S. 
natural gas consumption is projected to increase by 40 percent, and our 
domestic gas production is not expected to meet this need. Therefore, 
this likely shortfall may be resolved by increasing marine LNG imports. 
Currently, there are eight waterfront LNG facilities in the United 
States: seven are import facilities, and one is an export facility. To 
meet rising demand, the energy industry has submitted dozens of 
proposals to build LNG import terminals along our coasts, and an 
unspecified number of proposals are in the early planning stages.
    We have not seen, and do not expect, a similar increase in the 
production and transportation of other forms of liquefied hazardous gas 
(LHG). Although LNG and LHG facilities and the cargoes they handle are 
different in nature, we believe the vessels that transport these 
cargoes pose similar risks to the waterway environment and the area 
surrounding the facility when transfer operations are underway.
    Safety and security of our ports and waterways have become 
paramount concerns since the events of September 11, 2001. Currently, 
the owner or operator intending to construct, modify, or reactivate an 
LNG or LHG facility must submit a Letter of Intent (LOI) to the Coast 
Guard. Information obtained in the LOI enables the Coast Guard to 
provide specific recommendations, in a Letter of Recommendation (LOR), 
to the agencies having jurisdiction. The LOR serves as the Coast 
Guard's official recommendation to the jurisdictional agency as to the 
suitability of the waterway for the proposed facility.
    In the case of LNG facilities regulated by the Federal Energy 
Regulatory Commission (FERC), the LOI has been augmented by a Waterway 
Suitability Assessment (WSA). The WSA is a risk-based assessment 
process designed to document and address all safety and security 
concerns related to the movement of LNG in U.S. ports and waterways. As 
discussed below, FERC regulations have required since 2005 that 
prospective applicants for FERC authorization to site, construct and 
operate LNG terminals submit WSAs to the Coast Guard; guidance on 
submission of WSAs is provided in Navigation and Vessel Inspection 
Circular (NVIC) 05-08, available online at http://uscg.mil/hq/cg5/nvic/2000s.asp.
    The proposed rule would establish the WSA requirement in Coast 
Guard regulations, better aligning the regulations of the Coast Guard 
and FERC with regard to LNG. Although FERC generally does not regulate 
LHG facilities, this proposed rule would establish the WSA requirement 
for both LNG and LHG facilities because of the similarities between 
these cargoes.

A. Discussion of FERC Regulations in Regard to LNG

    FERC regulates LNG import facilities located onshore or in state 
waters, but generally does not regulate facilities receiving marine 
deliveries of LHG. This section provides background information 
specific to FERC-regulated LNG facilities.
    On October 18, 2005, FERC published a final rule in the Federal 
Register (70 FR 60426) implementing the Energy Policy Act of 2005 and 
creating procedures for the review of LNG terminals and other natural 
gas facilities. The FERC final rule amended 18 CFR parts 153 and 157 by 
requiring LNG and other natural gas facility owners and operators 
(referred collectively herein as ``LNG owners and operators'') to 
submit WSAs to the U.S. Coast Guard as part of the FERC pre-filing 
process. Although the WSA currently is required by FERC regulations, 
not Coast Guard regulations, the Coast Guard considers the WSA in 
developing its LOR.
    Prospective applicants seeking FERC's authorization to site, 
construct, and operate new LNG facilities, and some prospective 
applicants seeking authority to make modifications to an existing or 
approved LNG terminal, are required by FERC to make an initial filing 
to FERC and, concurrently, submit a Letter of Intent (LOI) and a 
Preliminary WSA to the Coast Guard. After the submission of the initial 
filing, the Director of FERC's Office of Energy Projects (Director) 
determines whether the applicant may begin the pre-filing process. If 
the prospective applicant meets the requirements to begin the pre-
filing process, the Director will issue a notice that begins the pre-
filing process.
    During the pre-filing process, the prospective applicant must 
satisfy several requirements, including the requirement in 18 CFR 
157.21(f) that a prospective applicant ``[c]ertify that a Follow-on WSA 
will be submitted to the U.S. Coast Guard no later than the filing of 
an application with the Commission

[[Page 19160]]

(for LNG terminal facilities and modifications thereto, if 
appropriate). The applicant must certify that the U.S. Coast Guard has 
indicated that a Follow-on WSA is not required, if appropriate.''
    The prospective applicant must wait at least 180 days after the 
commencement of the FERC pre-filing process in order to start the FERC 
filing process. Thus, the FERC regulations result in the LOI being 
submitted at least 180 days before the applicant files its application 
for authorization to construct the facility with FERC, even though the 
existing Coast Guard regulations for new and modified facilities 
require the LOI be submitted at least 60 days before construction 
begins.

IV. Discussion of Proposed Rule

    This proposed rule would align Coast Guard regulations for LNG in 
33 CFR part 127 with the existing FERC requirements in 18 CFR parts 153 
and 157. Due to the similarities between LNG and LHG, and between LNG 
and LHG regulations throughout part 127, this rulemaking would maintain 
the consistent application by the Coast Guard of these regulations for 
both LNG and LHG.
    The Coast Guard proposes amending the LOI submission requirements 
in Sec.  127.007 to provide more time for review and, in the case of 
LNG, to ensure consistency with the requirements established by FERC. 
Current Coast Guard regulations require an owner or operator seeking to 
construct or modify an LNG or LHG facility to submit the LOI to the 
Coast Guard at least 60 days before construction begins. For 
reactivation of inactive facilities under current regulations, the LOI 
is required at least 60 days before transferring LNG or LHG. The 
proposed rule would require the LOI be submitted earlier and, to 
accommodate FERC regulations, would result in slightly different LOI 
submission requirements for LNG facilities as compared to LHG 
facilities.
    For LNG facility owners or operators seeking to construct or modify 
a facility, the LOI would be submitted no later than the date the owner 
or operator files a pre-filing request with FERC under 18 CFR parts 153 
and 157, but in all cases at least one year prior to the start of 
construction. For inactive existing LNG facilities seeking 
reactivation, the LOI would be submitted no later than the date the 
owner or operator files a pre-filing request with FERC under 18 CFR 
parts 153 and 157, but in all cases at least one year prior to the 
start of transfer operations.
    For LHG facilities seeking construction or modification, the LOI 
would be submitted no later than the date the owner or operator files 
with the federal or state agency having jurisdiction, but in all cases 
at least one year prior to the start of construction. For inactive LHG 
facilities seeking reactivation, the LOI would be submitted no later 
than the date the owner or operator files with the federal or state 
agency having jurisdiction, but in all cases at least one year prior to 
the start of transfer operations.
    With regard to the content of the LOI submitted by LNG and LHG 
facilities, the Coast Guard proposes to add a requirement that the 
owner or operator provide the name, address, and telephone number of 
the federal, state, or local agency having jurisdiction. To accommodate 
the possibility that an owner or operator may need to submit charts 
showing waterways longer than 25 kilometers, we propose adding the 
words ``at least'' in Sec.  127.007(c)(7).
    In order to harmonize this regulation with FERC's regulations 
requiring the submission of a WSA, and to address emergent security 
concerns that resulted from the attacks of September 11, 2001, we 
propose to establish in Sec.  127.007(e) the requirement that a WSA be 
submitted by an owner or operator seeking to construct or modify an LNG 
or LHG facility. A WSA would not be required to reactivate an inactive 
existing LNG or LHG facility, unless the owner or operator sought 
modification or expansion of marine transfer operations.
    The proposed WSA would consist of a Preliminary WSA and a Follow-on 
WSA, described in proposed Sec. Sec.  127.007(f) and (g). The 
Preliminary WSA would be submitted at the same time as the LOI. The 
Follow-on WSA would be submitted at least 180 days before transfer of 
LNG or LHG, except in the case of an LNG facility that is required to 
submit an application to FERC. An LNG facility required to submit an 
application to FERC would submit the Follow-on WSA to the Coast Guard 
no later than the date the owner or operator files its application with 
FERC.
    The proposed regulations in 33 CFR 127.007(f) and (g) delineate the 
content of the WSA. According to the proposed text, the Preliminary 
WSA, which is an outline of what the fully detailed Follow-on WSA will 
contain, must provide an introductory explanation of the following: (1) 
Port characterization; (2) characterization of the facility and tanker 
route; (3) risk assessment for maritime safety and security; (4) risk 
management strategies; and (5) resource needs for maritime safety, 
security, and response. The Follow-on WSA would contain a detailed 
analysis of the topics in the Preliminary WSA, and a detailed analysis 
of any other safety or security impacts to the port and waterway 
identified by the Captain of the Port (COTP) and not otherwise covered 
in the list of subjects discussed in the Preliminary WSA.
    The LOR described in 33 CFR 127.009 represents the Coast Guard's 
recommendation as to the suitability of the waterway for LNG or LHG 
marine traffic. Current regulations provide for an LOR issued by the 
Coast Guard to the facility owner or operator and the state or local 
agencies having jurisdiction. In order to better reflect the role of 
federal agencies, including FERC's role in the permitting of LNG 
facilities, the Coast Guard proposes to issue the LOR to the federal, 
state, or local government agencies having jurisdiction. The Coast 
Guard also proposes to add other identified safety and security issues 
to the list of items considered by the COTP prior to issuing the LOR.
    Several years may pass between the issuance of the LOR and the 
operation of the facility. Therefore, the Coast Guard proposes to add a 
reporting requirement designed to keep the WSA up-to-date during the 
period between the issuance of the LOR and the start of facility 
operations. The new Sec.  127.007(h) would require owners or operators 
of LNG and LHG facilities that have completed the Preliminary and the 
Follow-On portions of a WSA, but not begun operation, to annually 
review their WSAs and provide an annual written report to the COTP. The 
owners or operators would be required to update the WSAs in the event 
of any change in conditions affecting the suitability of the waterway 
for LNG or LHG traffic. For example, changes to the port environment, 
LNG or LHG facility, or the LNG or LHG tanker route may constitute 
valid reasons when the WSA would need to be revised and updated. A 
report also would be required at least 30 days, but not more than 60 
days, prior to the start of operations.
    These proposed changes to Sec.  127.007 would require renumbering 
of certain paragraphs mentioned in Sec.  127.001, ``Applicability,'' 
which references paragraphs in Sec.  127.007. The Coast Guard proposes 
to update the paragraph references accordingly.
    Finally, to reflect security considerations by the Coast Guard 
after the events of September 11, 2001, the Coast Guard proposes to add 
46 U.S.C. Ch. 701 ``Port Security'' to its authority citation for these 
regulations.

[[Page 19161]]

V. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and executive orders related to rulemaking. Below, we summarize our 
analyses based on 13 of these statutes or Executive orders.

A. Regulatory Planning and Review

    This proposed rule is not a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866, Regulatory Planning and Review, 
and does not require an assessment of potential costs and benefits 
under section 6(a)(3) of that Order. Accordingly, OMB has not reviewed 
it under that Order.
    In this proposed rule, the Coast Guard seeks to revise the 
requirements for waterfront facilities handling LNG or LHG. For LNG 
waterfront facilities, this rulemaking proposes to align the Coast 
Guard's submission deadlines with those of FERC. For LHG waterfront 
facilities, this rulemaking would align the Coast Guard's submission 
deadlines to match the application timeline for the federal, state, or 
local agency having jurisdiction, but in no case less than one year 
prior to the start of construction. The Coast Guard believes it is 
necessary to require a WSA for both types of facilities and to provide 
consistency with FERC's regulations regarding LNG facilities. This 
proposed rule would also provide consistency for other Coast Guard 
regulations that address both LNG and LHG facilities.
    As noted above, the LOI is not a new requirement for LNG 
facilities. The WSA also is not a new requirement for LNG facilities: 
Starting in 2005, FERC regulations required that LNG facility owners 
and or operators submit the LOI earlier than required by the Coast 
Guard regulations, and submit a Preliminary and Follow-on WSA to the 
Coast Guard. The proposed procedure for the owner or operator to submit 
a WSA to the Coast Guard would not be new for the LNG industry because 
LNG facility owners and operators have been submitting WSAs to the 
Coast Guard since 2005; guidance on submission is provided in NVIC 05-
08. As of July 22, 2008, we have received 18 WSAs for LNG waterfront 
facilities.
    We expect new waterfront LNG facilities that become operational in 
the future will not incur additional costs over and above existing 
waterfront LNG facilities as a result of this proposed rule, because 
the LNG industry has been conducting WSAs as a common industry 
practice. We also expect existing LNG facilities will continue to 
operate according to industry standards and similarly would not incur 
additional regulatory costs. The proposed rule would eliminate industry 
confusion as the Coast Guard aligns its regulations with those of FERC.
    As noted above, the submission of an LOI is not a new requirement 
for LHG facilities. The submission of a WSA for LHG facilities would be 
a new requirement and would apply only to new LHG facilities or 
existing facilities that seek to expand or modify operations. Only one 
LHG facility has submitted a proposal to the Coast Guard to expand 
operations; this proposal currently is under review with regulatory 
authorities pursuant to existing regulations. In the future, the Coast 
Guard expects only one to two new or existing LHG facilities per year 
may become operational or may seek to expand or modify maritime 
operations.
    Additionally, the Coast Guard contacted several industry 
representatives and obtained cost estimates for completing a WSA. The 
estimates varied greatly and are a function of the waterway environment 
and the geographic location and uniqueness of each facility. Cost 
estimates were between $80,000 and $1.2 million per WSA. At the margin, 
we believe that these costs would have minimal effect on an LHG 
facility owner or operator's decision to expand operations.
    Finally, this proposed rule would benefit the economy by ensuring 
the proposed waterway is suitable for the safe and secure navigation of 
LNG or LHG vessels and the transfer of these cargoes.
    The collection of information burden associated with this proposed 
rule is discussed in section D, below.

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.
    Large corporations own the eight 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 101 LHG facilities 
operating in the U.S. Therefore, the Coast Guard certifies under 5 
U.S.C. 605(b) that this proposed rule would not have a significant 
economic impact on a substantial number of small entities. If you think 
that your business, organization, or governmental jurisdiction 
qualifies as a small entity and that this rule would have a significant 
economic impact on it, please submit a comment to the Docket Management 
Facility at the address under ADDRESSES. In your comment, explain why 
you think it qualifies and how and to what degree this rule would 
economically affect it.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please consult with the Coast Guard personnel 
listed in the FOR FURTHER INFORMATION CONTACT section of this proposed 
rule. 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.

D. Collection of Information

    This proposed rule would call for the collection of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As 
defined in 5 CFR 1320.3(c), ``collection of information'' comprises 
reporting, recordkeeping, monitoring, posting, labeling, and other, 
similar actions. The title and description of the information 
collections, a description of those who must collect the information, 
and an estimate of the total annual burden follow. The estimate covers 
the time for reviewing instructions, searching existing sources of 
data, gathering and maintaining the data needed, and completing and 
reviewing the collection.
    We do not expect new collection of information burdens would be 
placed on LNG facilities because these facilities are currently subject 
to FERC's regulations. The current reporting requirements for LNG 
facilities are in line with industry practices and would require only 
an adjustment to an existing OMB-approved collection of information 
(OMB control number 1625-0049) as LNG facilities update their paperwork 
requirements. Similarly, the same collection of information for LHG 
facilities regarding WSAs and LOIs would require a revision if these 
facilities intend to

[[Page 19162]]

expand operations in the future or if there is new construction. 
However, the existing collection of information requires a revision to 
include WSAs for LHG facilities (WSAs that have been submitted to the 
Coast Guard are from LNG facilities only). We request comments from the 
public regarding the time it takes to complete a WSA, the burden hours 
associated to perform a WSA, and the labor costs.
    This proposed rule modifies one existing OMB-approved collection, 
1625-0049 (formerly 2115-0552). The request for approval of this 
Collection of Information is available in the docket where indicated 
under the ``Public Participation and Request for Comments'' section of 
this preamble.
    The summary of the revised collection follows:
    Title: Waterfront Facilities Handling Liquefied Natural Gas (LNG) 
and Liquefied Hazardous Gas (LHG).
    Summary of the Collection of Information: The Coast Guard requires 
the submittal of a letter of intent (LOI) for LNG and LHG facilities 
that plan new construction or intend to expand existing operations and 
to alert the Coast Guard of transfers of LNG or LHG, in bulk. In 
addition, a waterway suitability assessment would be required for a 
facility that intends to expand maritime operations or a new 
construction, which requires an LOI.
    Need for Information: The LOI is needed to alert the cognizant 
Coast Guard Captain of the Port (COTP) that a waterfront facility plans 
to conduct transfers of LNG or LHG, in bulk. It also provides a point 
of contact at the facility. Once the Coast Guard receives the letter, 
the COTP can direct the necessary enforcement activity to ensure that 
the operator complies with the other requirements in 33 CFR part 127. 
The LOI also provides the information used by the COTP to determine the 
suitability of the waterway, on which the waterfront facility is 
located, for LNG or LHG vessel traffic. Changes to the information in 
the LOI are required to be submitted whenever they occur.
    Proposed Use of Information: This information is required to ensure 
COTPs learn of the opening or reopening of a waterfront facility 
handling LNG or LHG far enough in advance to allocate resources, to 
enforce construction and design standards, and to plan enforcement 
strategy. Also, COTPs would have the information necessary to properly 
evaluate the suitability of a waterway for vessels carrying LNG or LHG.
    Description of the Respondents: Respondents are the facilities 
themselves.
    Number of Respondents: The existing OMB-approved number of 
respondents is 109. There are plans now for future facilities to become 
operational.
    Frequency of Response: The existing OMB-approved number of 
responses is 3,059 annually. This proposed rule would increase that 
number by 230. The total number of responses would be 3,289.
    Burden of Response: The existing OMB-approved burden of response is 
the same for the proposed rule. We have maintained our estimates of the 
frequency of response for each item in the collection based on industry 
information, and we have added information regarding a WSA.
    Estimate of Total Annual Burden: The existing OMB-approved total 
annual burden is 2,838 hours. This proposed rule would increase that 
number by 5,077 hours, which includes 4,928 hours for the addition of a 
WSA to the collection of information. All of the original items in the 
collection, notwithstanding the WSA, only account for a 149-hour 
increase. The estimated total annual burden would be 7,915 hours.
    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), we have submitted a copy of this proposed rule to the Office 
of Management and Budget (OMB) for its review of the collection of 
information.
    We ask for public comment on the proposed collection of information 
to help us determine how useful the information is; whether it can help 
us perform our functions better; whether it is readily available 
elsewhere; how accurate our estimate of the burden of collection is; 
how valid our methods for determining burden are; how we can improve 
the quality, usefulness, and clarity of the information; and how we can 
minimize the burden of collection.
    If you submit comments on the collection of information, submit 
them both to OMB and to the Docket Management Facility where indicated 
under ADDRESSES, by the date under DATES.
    You need not respond to a collection of information unless it 
displays a currently valid control number from OMB. Before the 
requirements for this collection of information become effective, we 
will publish notice in the Federal Register of OMB's decision to 
approve, modify, or disapprove the collection.

E. Federalism

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

F. Unfunded Mandates Reform Act

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

G. Taking of Private Property

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

H. Civil Justice Reform

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

I. Protection of Children

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

J. Indian Tribal Governments

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

K. Energy Effects

    We have analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply,

[[Page 19163]]

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 require a Statement of Energy Effects 
under Executive Order 13211.

L. Technical Standards

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

M. Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Directive 0023.1 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a 
preliminary determination that this action is one of a category of 
actions which do not individually or cumulatively have a significant 
effect on the human environment. Therefore, this rule is categorically 
excluded, under section 2.B.2. Figure 2-1, paragraph 34(a), of the 
Instruction and neither an environmental assessment nor an 
environmental impact statement is required. This proposed regulation 
concerns the submission of an LOI and a WSA. This involves the 
gathering of data and information that would involve no physical change 
to the environment. A preliminary ``Environmental Analysis Check List'' 
supporting this determination is available in the docket where 
indicated under the ``Public Participation and Request for Comments'' 
section of this preamble. We seek any comments or information that may 
lead to discovery of a significant environmental impact from this 
proposed rule.

List of Subjects in 33 CFR Part 127

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

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

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

    1. Revise the authority citation for part 127 to read as follows:

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


Sec.  127.001  [Amended]

    2. In Sec.  127.001(c), remove the words ``Sections 127.007(c), 
(d), and (e)'' and add in their place the words ``Sections 127.007(b), 
(c), and (d)''.
    3. In Sec.  127.001(e), remove the words ``Sections 127.007(c), 
(d), and (e)'' and add in their place the words ``Sections 127.007(b), 
(c), and (d)''.
    4. Revise Sec.  127.007 to read as follows:


Sec.  127.007  Letter of intent and waterway suitability assessment.

    (a) An owner or operator intending to build a new waterfront 
facility handling LNG or LHG, or an owner or operator planning new 
construction to expand or modify marine terminal operations in an 
existing waterfront facility handling LNG or LHG, 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 LOI must meet the requirements 
in paragraph (c) of this section.
    (1) The owner or operator of an LNG facility must submit the LOI to 
the COTP no later than the date that the owner or operator files a pre-
filing request with the Federal Energy Regulatory Commission (FERC) 
under 18 CFR parts 153 and 157, but, in all cases, at least one year 
prior to the start of construction.
    (2) The owner or operator of an LHG facility must submit the LOI to 
the COTP no later than the date that the owner or operator files with 
the federal or state agency having jurisdiction, but, in all cases, at 
least one year prior to the start of construction.
    (b) An owner or operator intending to reactivate an inactive 
existing waterfront facility must submit an LOI that meets paragraph 
(c) of this section to the COTP of the zone in which the facility is 
located.
    (1) The owner or operator of an LNG facility must submit the LOI to 
the COTP no later than the date the owner or operator files a pre-
filing request with FERC under 18 CFR parts 153 and 157, but, in all 
cases, at least one year prior to the start of LNG transfer operations.
    (2) The owner or operator of an LHG facility must submit the LOI to 
the COTP no later than the date the owner or operator files with the 
federal or state agency having jurisdiction, but, in all cases, at 
least one year prior to the start of LHG transfer operations.
    (c) Each LOI must contain--
    (1) The name, address, and telephone number of the owner and 
operator;
    (2) The name, address, and telephone number of the federal, state, 
or local agency having jurisdiction;
    (3) The name, address, and telephone number of the facility;
    (4) The physical location of the facility;
    (5) A description of the facility;
    (6) The LNG or LHG vessels' characteristics and the frequency of 
LNG or LHG shipments to or from the facility; and
    (7) Charts showing waterway channels and identifying commercial, 
industrial, environmentally sensitive, and residential areas in and 
adjacent to the waterway used by the LNG or LHG vessels en route to the 
facility, within at least 25 kilometers (15.5 miles) of the facility.
    (d) The owner or operator who submits an LOI under paragraphs (a) 
or (b) must notify the COTP in writing within 15 days of any of the 
following:
    (1) There is any change in the information submitted under 
paragraphs (c)(1) through (c)(7) of this section; or
    (2) No LNG or LHG transfer operations are scheduled within the next 
12 months.
    (e) A facility owner or operator who intends to build a new 
waterfront LNG or LHG facility, or a facility owner or operator who 
plans new construction on an existing waterfront LNG or LHG facility, 
must file a waterway suitability assessment (WSA) with the COTP of the 
zone in which the facility is or will be located. The WSA must consist 
of a Preliminary WSA and a Follow-on WSA. A COTP may request additional 
information during review of the Preliminary WSA or Follow-on WSA.
    (f) The Preliminary WSA must:
    (1) Be submitted to the COTP with the LOI; and
    (2) Provide an initial explanation of the following:
    (i) Port characterization;
    (ii) Characterization of the LNG or LHG facility and LNG or LHG 
tanker route;

[[Page 19164]]

    (iii) Risk assessment for maritime safety and security;
    (iv) Risk management strategies; and
    (v) Resource needs for maritime safety, security, and response.
    (g) The Follow-on WSA must:
    (1) Be submitted to the COTP as follows:
    (i) The owner or operator of an LNG facility must submit the 
Follow-on WSA to the COTP no later than the date the owner or operator 
files its application with FERC pursuant to 18 CFR parts 153 or 157, or 
if no application to FERC is required, at least 180 days before the 
owner or operator begins transferring LNG.
    (ii) The owner or operator of an LHG facility must submit the 
Follow-on WSA to the COTP in all cases at least 180 days before the 
owner or operator begins transferring LHG.
    (2) Contain a detailed analysis of the elements listed in 
Sec. Sec.  127.009(d) and (e) of this part below.
    (h) Until the facility begins operation, owners or operators must:
    (1) Annually review their WSAs and submit a report to the COTP as 
to whether changes are required. The deadline for the required annual 
report should coincide with the date of the COTP's letter of 
recommendation, which indicates review and validation of the Follow-on 
WSA has been completed.
    (2) In the event that revisions to the WSA are needed, report to 
the COTP the details of the necessary revisions, along with a timeline 
for completion.
    (3) Update the WSA if there are any changes in conditions, such as 
changes to the port environment, the LNG or LHG facility, or the tanker 
route, that would affect the suitability of the waterway for LNG or LHG 
traffic.
    (4) Submit a final report to the COTP at least 30 days, but not 
more than 60 days, prior to the start of operations.
    5. Revise Sec.  127.009 to read as follows:


Sec.  127.009  Letter of recommendation.

    After the COTP receives the letter of intent under Sec.  127.007(a) 
or (b), the COTP issues a letter of recommendation to the federal, 
state, or local government agencies having jurisdiction, as to the 
suitability of the waterway for LNG or LHG marine traffic, based on 
the--
    (a) Information submitted under Sec.  127.007;
    (b) Density and character of marine traffic in the waterway;
    (c) Locks, bridges, or other man-made obstructions in the waterway;
    (d) Following factors adjacent to the facility such as:
    (1) Depths of the water;
    (2) Tidal range;
    (3) Protection from high seas;
    (4) Natural hazards, including reefs, rocks, and sandbars;
    (5) Underwater pipelines and cables;
    (6) Distance of berthed vessel from the channel and the width of 
the channel; and
    (e) Other safety and security issues identified.

    Dated: April 22, 2009.
Howard L. Hime,
Acting Director of Commercial Regulations and Standards, U.S. Coast 
Guard.
[FR Doc. E9-9639 Filed 4-27-09; 8:45 am]
BILLING CODE 4910-15-P


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