CCLME.ORG - 33 CFR PART 148ЧDEEPWATER PORTS: GENERAL

(continued) a State not named as an adjacent coastal State in the notice may request to be designated as one if the environmental risks to it are equal to or greater than the risks posed to a State directly connected by pipeline to the proposed deepwater port.

(b) The request must:

(1) Be submitted in writing to the Commandant (G-M) within 14 days after the date of publication of the notice of application in the Federal Register;

(2) Be signed by the Governor of the State;

(3) List the facts and any available documentation or analyses concerning the risk of damage to the coastal environment of the State; and

(4) State why the State believes the risk of damage to its coastal environment is equal to or greater than the risk to a State connected by a pipeline to the proposed deepwater port.

(c) Upon receipt of a request, the Commandant (G-M) sends a copy of the State's request to the Administrator of the National Oceanic and Atmospheric Administration (NOAA) and asks for the Administrator's recommendations within an amount of time that will allow the Commandant (G-M) 45 days from receipt of the request to determine the matter.

(d) If after receiving NOAA's recommendations, the Commandant (G-M) determines that the State should be considered as an adjacent coastal State, the Commandant (G-M) designates it as an adjacent coastal State. If the Commandant (G-M) denies the request, the Commandant (G-M) notifies the Governor of the requesting State of the denial.

з 148.221 What must I do to make a claim or object to a claim?
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(a) Persons required to furnish information under this part may assert a claim of privilege or immunity as grounds for relief from the requirement. The claim must be submitted in writing to the Commandant (G-M).

(b) If the claim concerns a document protected from disclosure under 33 U.S.C. 1513(b), the document must be placed in a sealed envelope with the name of the person claiming the protection, the applicant's name, the date or anticipated date of the application, and a brief statement of the basis of the claim. If a number of documents are involved, they must be grouped according to the nature of the claim and both the documents and their envelopes must be numbered using a self-explanatory numbering system.

(c) If the claim concerns the attorney-client privilege, the claim must identify the communication by date, type, persons making and receiving it, and general subject matter. If the required information is in a separable part of a communication, such as an attachment to a letter, the separate part must be identified the same way as the communication. The identification must be filed with the Commandant (G-M).

(d) A Federal or State agency, the applicant, an affiliate of the applicant, or other interested person may object to a claim. The objection must be in writing, must include a brief statement of the basis for the objection, and must identify the document to which the claim applies.

(e) Commandant (G-M) determines issues raised by claims filed under this section and may specify procedures to be used to resolve the issues. Any person may submit recommendations to the Commandant (G-M) as to the procedures to be used.

(f) The presiding officer at any formal or informal hearing may allow claims or objections that could be filed under this section to be made and may issue a decision or refer the matter to the Commandant (G-M).

(g) The filing of a claim under this section, other than a claim under paragraph (b) of this section, stays the time for meeting any deadline for submitting information related to an issue raised in a claim or objection. However, the filing of a claim does not stay the periods for processing and reviewing applications, unless the Commandant (G-M) determines that compliance with the requirement is material to the processing of the application within the required time. If the Commandant (G-M) determines that the information is material, the Commandant (G-M) may suspend the processing of the application. The period of suspension is not counted toward the time limits in 33 U.S.C. 1503(c)(6), 1504(d)(3), (e)(2), and (g), and 1508(b)(1).

Public Meetings
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з 148.222 When must public meetings be held?
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(a) Before a license is issued, at least one public meeting under 33 U.S.C. 1504(g) must be held in each adjacent coastal State.

(b) The Commandant (G-M), in coordination with the Administrator of the Maritime Administration, shall publish a notice of public meetings in the Federal Register and mails or delivers a copy of the notice to the applicant, to each adjacent coastal State, and to all who request a copy.

(c) Anyone may attend the public meeting(s) and provide oral or written information. The presiding officer may limit the time for providing oral information.

з 148.227 How is a public meeting reported?
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(a) After completion of a meeting, the presiding officer forwards a report on the hearing to the Commandant (G-M) for docketing.

(b) The report contains at least:

(1) An overview of the factual issues addressed;

(2) A transcript or recording of the meeting; and

(3) A copy of all material submitted to the presiding officer.

(c) During the hearing, the presiding officer announces the information that the report must contain.

Formal Hearings
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з 148.228 What if a formal evidentiary hearing is necessary?
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(a) After all public meetings under 148.222 are concluded, the Commandant (G-MSO), in coordination with the Administrator of the Maritime Administration, considers whether there are one or more specific and material factual issues that may be resolved by a formal evidentiary hearing.

(b) If the Commandant (G-M), in coordination with the Administrator of the Maritime Administration, determines that one or more issues under paragraph (a) of this section exist, the Coast Guard will hold at least one formal evidentiary hearing under 5 U.S.C. 554 in the District of Columbia.

(c) The Commandant (G-MSO) files a request for assignment of an administrative law judge (ALJ) with the ALJ Docketing Center. The Chief Administrative Law Judge designates an ALJ or other person to conduct the hearing.

(d) The recommended findings and the record developed in a hearing under paragraph (b) of this section are considered by the Administrator of the Maritime Administration in deciding whether to approve or deny a license.

з 148.230 How is notice of a formal hearing given?
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(a) The Commandant (G-M) publishes a notice of the hearing in the Federal Register and sends a notice of the hearing to the applicant, to each adjacent coastal State, and to each person who requests such a notice.

(b) The notice of the hearing includes the applicant's name, the name of the ALJ assigned to conduct the hearing, a list of the factual issues to be resolved, the address of the place where documents are to be filed, and the address where a copy of the rules of practice, procedure, and evidence to be used at the hearing is available.

з 148.232 What are the rules for a formal hearing?
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(a) The Commandant (G-M) determines the rules for each formal hearing. Unless otherwise specified in this part, the Commandant (G-M) applies the rules of practice, procedure, and evidence in part 20 of this chapter.

(b) The Commandant (G-M) sends a written copy of the procedure to the applicant, each person intervening in the proceedings, and each person who requests a copy.

з 148.234 What are the limits of an administrative law judge's jurisdiction?
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(a) An ALJ's jurisdiction begins upon assignment to a proceeding.

(b) An ALJ's jurisdiction ends after the recommended findings are filed with the Commandant (G-M) or immediately after the ALJ issues a notice of withdrawal from the proceeding.

з 148.236 What authority does an administrative law judge have?
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When assigned to a formal hearing, an ALJ may:

(a) Administer oaths and affirmations;

(b) Issue subpoenas;

(c) Issue rules of procedure for written evidence;

(d) Rule on offers of proof and receive evidence;

(e) Examine witnesses;

(f) Rule on motions of the parties;

(g) Suspend or bar an attorney from representing a person in the proceeding for unsuitable conduct;

(h) Exclude any person for disruptive behavior during the hearing;

(i) Set the hearing schedule;

(j) Certify questions to the Commandant (G-M);

(k) Proceed with a scheduled session of the hearing in the absence of a party who has failed to appear;

(l) Extend or shorten a non-statutorily imposed deadline under this subpart within the 240 day time limit for the completion of public hearings in 33 U.S.C. 1504(g);

(m) Set deadlines not specified in this subpart or the Act; and

(n) Take any other action authorized by or consistent with this subpart, the Act, or 5 U.S.C. 551Ц559.

з 148.238 Who are the parties to a formal hearing?
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The parties to a formal hearing are:

(a) The applicant;

(b) The Commandant (G-M); and

(c) Any person intervening in the proceedings.

з 148.240 How does a State or a person intervene in a formal hearing?
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(a) Any person or adjacent coastal State may intervene in a formal hearing.

(b) A person must file a petition of intervention within 10 days after notice of the formal hearing is issued. The petition must:

(1) Be addressed to the ALJ Docketing Center;

(2) Identify the issues and the petitioner's interest in those issues; and

(3) Designate the name and address of a person who can be served if the petition is granted.

(c) An adjacent coastal State need only file a notice of intervention with the ALJ Docketing Center.

(d) The ALJ has the authority to limit the scope and period of intervention during the proceeding.

(e) If the ALJ denies a petition of intervention, the petitioner may file a notice of appeal with the ALJ Docketing Center within 7 days of the denial. A brief may be submitted with the notice of appeal. Parties who wish to file a brief in support of or against the notice of appeal may do so within 7 days of the filing of the notice.

(f) The Commandant (G-M) will rule on the appeal. The ALJ does not have to delay the proceedings for intervention appeals.

з 148.242 How does a person who is not a party to a formal hearing present evidence at the hearing?
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(a) For a person who is not a party to a formal hearing to present evidence at the hearing, the person must send a petition to present evidence to the ALJ Docketing Center before the beginning of the formal hearing. The petition must describe the evidence that the person will present and show its relevance to the issues listed in the notice of formal hearing.

(b) If a petition is granted, the ruling will specify which evidence is approved to be presented at the hearing.

з 148.244 Who must represent the parties at a formal hearing?
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(a) All organizations that are parties to the proceeding must be represented by an attorney. Individuals may represent themselves.

(b) Any attorney representing a party to the proceeding must file a notice of appearance according to з20.301(b) of this chapter.

(c) Each attorney must be in good standing and licensed to practice before a court of the United States or the highest court of any State, territory, or possession of the United States.

з 148.246 When is a document considered filed and where must it be filed?
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(a) If a document to be filed is submitted by mail, it is considered filed on the date it is postmarked. If a document is submitted by hand delivery or electronically, it is considered filed on the date received by the clerk.

(b) File all documents and other materials related to an administrative proceeding at the U.S. Coast Guard Administrative Law Center, Attention: Hearing Docket Clerk, room 412, 40 South Gay Street, Baltimore, MD, 21201Ц4022.

з 148.248 What happens when a document does not contain all necessary information?
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Any document that does not satisfy the requirements in зз20.303 and 20.304 of this chapter will be returned to the person who submitted it with a statement of the reasons for denial.

з 148.250 Who must be served before a document is filed?
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Before a document may be filed by any party, it first must be served upon:

(a) All other parties; and

(b) The Commandant (G-M).

з 148.252 What is the procedure for having a subpoena served?
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(a) A party may submit a request for a subpoena to the ALJ. The request must show the relevance and scope of the evidence sought.

(b) Requests should be submitted sufficiently in advance of the hearing so that exhibits and witnesses can be included in the lists required by з20.601 of this chapter but may be submitted later before the end of the hearing if good cause is shown for the late submission.

(c) A request for a subpoena must be submitted to the ALJ.

(d) A proposed subpoena, such as the form in http://cgweb.comdt.uscg.mil/g-cj/subpoena.doc, must be submitted with the request. If you do not use this form, the proposed subpoena must contain:

(1) The docket number of the proceedings;

(2) The captions УDepartment of Homeland Security,Ф УCoast Guard,Ф and УLicensing of deepwater port for coastal waters off (insert name of the coastal State closest to the proposed deepwater port and the docket number of the proceeding)Ф;

(3) The name and the address of the office of the ALJ;

(4) For a subpoena to give testimony, a statement commanding the person to whom the subpoena is directed to attend the formal hearing and give testimony;

(5) For a subpoena to produce documentary evidence, a statement commanding the person to produce designated documents, books, papers, or other tangible things at a designated time or place; and

(6) An explanation of the procedure in з20.309(d) of this chapter and paragraph (h) of this section for quashing a subpoena.

(e) The procedure for serving a subpoena must follow rule 45 of the Federal Rules of Civil Procedure, unless the ALJ authorizes another procedure.

(f) The witness fees for a subpoenaed witness are the same as the fees for witnesses subpoenaed in U.S. District Courts. The person requesting the subpoena must pay these fees.

(g) When serving a subpoena, a party must include witness fees in the form of a check to the individual or organization for one day plus mileage or, in the case of a government-issued subpoena, a form SFЦ1157 for reimbursement for witness fees and mileage.

(h) Any person served with a subpoena has 10 days from the time of service to move to quash the subpoena.

(i) If a person does not comply with a subpoena, the ALJ decides whether judicial enforcement of the subpoena is necessary. If the ALJ decides it is, the Commandant (G-M) reviews this decision.

з 148.254 How is a transcript of the hearing prepared?
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(a) Under the supervision of the ALJ, the reporter prepares a verbatim transcript of the hearing. Nothing may be deleted from the transcript, unless ordered by the ALJ and noted in the transcript.

(b) After a formal hearing is completed, the ALJ certifies and forwards the record, including the transcript, to the clerk to be placed into the docket.

(c) At any time within the 20 days after the record is docketed, the ALJ may make corrections to the certified transcript. When corrections are filed, they are attached as appendices.

(d) Any motion to correct the record must be submitted within 10 days after the record is docketed.

з 148.256 What happens at the conclusion of a formal hearing?
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After closing the record of a formal hearing, the ALJ prepares a recommended finding on the issues that were the subject of the hearing. The ALJ submits that finding to the Commandant (G-M).

Approval or Denial of the Application
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з 148.276 When must the application be approved or denied?
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(a) In 33 U.S.C. 1504, the Deepwater Port Act provides strict timelines for action on a license application, which if closely observed can lead to action in just under 1 year. The Coast Guard can recommend that MARAD suspend the process if an applicant fails to provide timely information or requests additional time to comply with a request.

(b) The Coast Guard must conduct public hearings in each adjacent Coastal State within 240 days of publication of the notice of receipt of a deepwater port application.

(c) An application must be approved or denied within 90 days after the close of the public hearing period specified in paragraph (b) of this section.

з 148.277 How may Federal agencies and States participate in the application process?
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(a) Under з148.209, Federal agencies and adjacent coastal States are sent copies of the application. The agencies and States are encouraged to begin submitting their comments at that time.

(b) To be considered, comments from Federal agencies and adjacent coastal States must be received by the Commandant (G-M) within 45 days after the close of the public hearing period specified in з148.276(b). Separate comment periods will apply to the review of documents created during the NEPA process. Both Commandant (G-M) and MARAD review the comments received.

(c) Comments should identify problems, if any, and suggest possible solutions.

з 148.279 What are the criteria for approval or denial of an application?
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The criteria for approving or denying a license application appear in 33 U.S.C. 1503.

з 148.281 What happens when more than one application is submitted for an oil deepwater port for the same application area?
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(a) When more than one application is submitted for an oil deepwater port for the same application area under 33 U.S.C. 1504(d), only one application is approved. Except as provided in paragraph (b) of this section, applicants receive priority in the following order:

(1) An adjacent coastal State (or combination of States), political subdivision of the State, or an agency or instrumentality, including a wholly owned corporation of the State;

(2) A person that is:

(i) Not engaged in producing, refining, or marketing oil;

(ii) Not an affiliate of a person engaged in producing, refining, or marketing oil; or

(iii) Not an affiliate of an affiliate of a person engaged in producing, refining, or marketing oil; and then

(3) Any other applicant.

(b) MARAD may also approve one of the proposed deepwater ports if it determines that that port will best serve the national interest. In making this determination, MARAD considers:

(1) The degree to which each deepwater port will affect the environment, as determined under the review criteria in subpart G to this part;

(2) The differences between the anticipated completion dates of the deepwater ports; and

(3) The differences in costs for construction and operation of the ports that would be passed on to consumers of oil.

(c) This section does not apply to applications for natural gas deepwater ports.

з 148.283 When is the application process stopped before the application is approved or denied?
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The Commandant (G-M) recommends to MARAD that the application process be suspended before the application is approved or denied if:

(a) All applications are withdrawn before MARAD approves one of them; or

(b) There is only one application; it is incomplete, and the applicant does not respond to a request by the Commandant (G-M) for further information, as per з148.107.

Subpart DЧLicenses
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з 148.300 What does this subpart concern?
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This subpart concerns the license for a deepwater port and the procedures for transferring, amending, suspending, reinstating, revoking, and enforcing a license.

з 148.305 What is included in a deepwater port license?
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A deepwater port license contains information about the licensee and the port, and conditions of operation that are set by MARAD. Licenses are issued in conformance with the Deepwater Ports Act of 1974, as amended, and with rules and policies of MARAD that implement that Act.

з 148.307 Who may consult with the Commandant (G-M) on developing the conditions of a license?
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Federal agencies, the adjacent coastal States, and the owner of the deepwater port may consult with the Commandant (G-M) on the conditions of the license being developed under 33 U.S.C. 1503(e).

з 148.310 How long does a license last?
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Each license remains in effect indefinitely unless:

(a) It is suspended or revoked by MARAD; or

(b) It is surrendered by the owner.

з 148.315 How is a license amended, transferred, or reinstated?
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(a) MARAD may amend, transfer, or reinstate a license if it finds that the amendment, transfer, or reinstatement is consistent with the requirements of the Act and this subchapter.

(b) The owner must submit a request for an amendment, transfer, or reinstatement to the Commandant (G-M).

з 148.320 How is a license enforced, suspended, or revoked?
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MARAD may enforce, suspend, or revoke a license under 33 U.S.C. 1507(c).

Subpart EЧSite Evaluation and Pre-Construction Testing
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з 148.400 What does this subpart do?
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(a) This subpart prescribes requirements under 33 U.S.C. 1504(b) for the activities that are involved in site evaluation and pre-construction testing at potential locations for deepwater ports and that may:

(1) Adversely affect the environment;

(2) Interfere with authorized uses of the Outer Continental Shelf; or

(3) Pose a threat to human health and welfare.

(b) For the purpose of this subpart, Уsite evaluation and pre-construction testingФ means studies performed at potential deepwater port locations, including:

(1) Preliminary studies to determine the feasibility of a site;

(2) Detailed studies of the topographic and geologic structure of the ocean bottom to determine its ability to support offshore structures and other equipment; and

(3) Studies done for the preparation of the environmental analysis required under з148.105.

з 148.405 What are the procedures for notifying the Commandant (G-M) of proposed site evaluation and pre-construction testing?
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(a) Any person who wants to conduct site evaluation and pre-construction testing at a potential site for a deepwater port must submit a written notice to the Commandant (G-M) at least 30 days before the beginning of the evaluation or testing. The Commandant (G-M) advises and coordinates with appropriate Federal agencies and the States concerning activities covered by this subpart.

(b) The written notice must include the following:

(1) The names of all parties participating in the site evaluation and pre-construction testing;

(2) The type of activities and the way they will be conducted;

(3) Charts showing where the activities will be conducted and the locations of all offshore structures, including pipelines and cables, in or near the proposed area;

(4) The specific purpose for the activities;

(5) The dates when the activities will begin and end;

(6) The available data on the environmental consequences of the activities;

(7) A preliminary report, based on existing data, of the historic and archeological significance of the area where the proposed activities are to take place. A report of each contact made with any appropriate State liaison officer for historic preservation must be included; and

(8) Additional information, if necessary, in individual cases.

(c) For the following activities, the notice need have only the information required in paragraphs (b)(1), (b)(2), and (b)(5) of this section, as well as a general indication of the proposed location and purpose of the activities:

(1) Gravity and magneto-metric measurements;

(2) Bottom and sub-bottom acoustic profiling without the use of explosives;

(3) Sediment sampling of a limited nature using either core or grab samplers, if geological profiles indicate no discontinuities that may have archeological significance;

(4) Water and biotic sampling, if the sampling does not adversely affect shellfish beds, marine mammals, or an endangered species, or if the sampling is permitted by another Federal agency;

(5) Meteorological measurements, including the setting of instruments;

(6) Hydrographic and oceanographic measurements, including the setting of instruments; and

(7) Small diameter core sampling to determine foundation conditions.

(d) A separate written notice is required for each site.

з148.410 What are the conditions for conducting site evaluation and pre-construction testing?
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(a) No persons may conduct site evaluation and pre-construction testing unless they comply with this subpart and other applicable laws.

(b) Measures must be taken to prevent or minimize the effect of activities under 148.400(a).

з148.415 When conducting site evaluation and pre-construction testing, what must be reported?
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(a) When conducting site evaluation or pre-construction testing, the following must be immediately reported by any means to the Commandant (G-M):

(1) Any evidence of objects of cultural, historical, or archeological significance;

(2) Any adverse effect on the environment;

(3) Any interference with authorized uses of the Outer Continental Shelf;

(4) Any threat to human health and welfare; and

(5) Any adverse effect on an object of cultural, historical, or archeological significance.

(b) Within 120 days after the site evaluation or pre-construction testing, a final written report must be submitted to the Commandant (G-M) that contains:

(1) A narrative description of the activities performed;

(2) A chart, map, or plat of the area where the activities occurred;

(3) The dates that the activities were performed;

(4) Information on the adverse effects of items reported under paragraph (a) of this section;

(5) Data on the historical or archeological significance of the area where the activities were conducted, including a report by an underwater archeologist; and

(6) Any additional information required by the Commandant (G-M) on a case-by-case basis.

з148.420 When may the Commandant (G-M) suspend or prohibit site evaluation or pre-construction testing?
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(a) The Commandant (G-M) may order, either in writing or orally with written confirmation, the prohibition or immediate suspension of any activity related to site evaluation or pre-construction testing, when the activity threatens harm to:

(1) Human life;

(2) Biota;

(3) Property;

(4) Cultural resources;

(5) Any valuable mineral deposits; or

(6) The environment.

(b) The Commandant (G-M) will consult with the applicant on measures to remove the cause for suspension.

(c) The Commandant (G-M) may lift a suspension after the applicant assures the Commandant (G-M) that the activity will no longer cause the threat on which the suspension was based.

Subpart FЧExemption From or Adjustments to Requirements in This Subchapter
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з148.500 What does this subpart do?
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This subpart provides procedures for requesting an exemption from a requirement in this subchapter. Commandant (G-M) and MARAD coordinate in evaluating requests for exemption from the requirements in this subchapter.

з148.505 How do I apply for an exemption?
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(a) Any person required to comply with a requirement in this subchapter may submit a petition for exemption from that requirement.

(b) The petition must be submitted in writing to the Commandant (G-M).

(c) The Commandant (G-M) may require the petition to provide an alternative to the requirement.

з148.510 What happens when a petition for exemption involves the interests of an adjacent coastal State?
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If the petition for exemption concerns an adjacent coastal State, the Commandant (G-M) forwards the petition to the Governor of the State for the Governor's recommendation.

з148.515 When is an exemption allowed?
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The Commandant (G-M) may recommend that MARAD allow an exemption if he or she determines that:

(a) Compliance with the requirement would be contrary to public interest;

(b) Compliance with the requirement would not enhance safety or the health of the environment;

(c) Compliance with the requirement is not practical because of local conditions or because the materials or personnel needed for compliance are unavailable;

(d) National security or national economy justifies a departure from the rules; or

(e) The alternative, if any, proposed in the petition would:

(1) Ensure comparable or greater safety, protection of the environment, and quality of construction, maintenance, and operation of the deepwater port; and

(2) Be consistent with recognized principles of international law.

з 148.600 What is the limit of financial liability?
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The financial limit for liability for deepwater ports is set in accordance with section 1004 of the Oil Pollution Act of 1990 (33 U.S.C. 2704).

з 148.605 How is the limit of liability determined?
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(a) The Coast Guard may lower the $350,000,000 limit of liability for deepwater ports set by 33 U.S.C. 2704(a)(4), pursuant to paragraph (d) of that section.

(b) Requests to adjust the limit of liability for a deepwater port must be submitted to Commandant (G-M). Adjustments are established by a rulemaking that may take place concurrently with the processing of the deepwater port license application.

Subpart GЧEnvironmental Review Criteria for Deepwater Ports
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з 148.700 How does the Deepwater Port Act interact with other Federal and State laws?
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Nothing in this subpart supersedes any Federal, tribal, or State requirements for the protection of the environment. The applicant must prepare and submit applications to each respective agency that requires a permit or license to operate the port. A list of Federal and State agencies that require certification includes but is not limited to the Environmental Protection Agency (for clean air and clean water permits), the Research and Special Programs Administration (Office of Pipeline Safety) or the Mineral Management Service (or both) for pipeline approvals, and the appropriate state environmental agency.

з 148.702 How were the environmental review criteria developed?
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Under 33 U.S.C. 1505, the Commandant (G-M) must establish environmental review criteria for use in evaluating a proposed deepwater port. In developing these criteria, the Coast Guard considered the requirements for compliance with Federal and state mandates for the protection of the environment contained in, but not limited to, such guidance as published by:

(a) The Council on Environmental Quality (40 CFR parts 1500Ц1508);

(b) Department of Transportation (DOT) Order 5610.10C (Procedures for Considering Environmental Impacts); and

(c) U.S. Coast Guard Instruction M16475.1D (National Environmental Policy Act Implementing Procedures and Policy for Considering Environmental Impacts).

з 148.705 What is determined by the environmental evaluation?
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(a) The environmental criteria to be used in evaluating a license application are established by general consensus of expertise, scientific opinion, public interest, and institutional requirements, such as laws and regulations established for the protection of the environment. Criteria that may be established in future environmental regulations or other requirements to protect the environment will also be used.

(b) The environmental criteria to be used in evaluating a license application are applied to all relevant aspects of:

(1) The fabrication, construction, operation, and decommissioning phases of a deepwater port;

(2) The operations of the vessels that serve the port;

(3) The port's servicing and support activities;

(4) Shore based construction and fabrication sites;

(5) Shore side supporting facilities (if appropriate) for the proposed location; and

(6) The No Action alternative and other reasonable alternatives.

(c) The criteria are also applied in a manner that takes into account the cumulative effects of other reasonably foreseeable actions as outlined in з148.708.

з 148.707 What type of criteria will be used in an environmental review and how will they be applied?
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The license application will be reviewed for the deepwater port's effects on the environment and for the environment's effects on the port and any of its shore side support facilities. The environmental evaluation will be applied to the phases of construction, operation, and decommissioning of the proposed location and at least one alternative site. The evaluation will determine:

(a) The effect on the environment including but not limited to impacts on endangered species; essential fish habitat; marine sanctuaries; archaeological, cultural and historic sites; water; air; coastal zone management; coastal barrier resources; wetlands; and floodplains;

(b) The effect on oceanographic currents and wave patterns;

(c) The potential risks to a deepwater port from waves, winds, weather, and geological conditions and the steps that can be taken to protect against or minimize these dangers; and

(d) The effect on human health and welfare, including socioeconomic impacts, environmental justice and protection of children from environmental health and safety risks.

з 148.708 Must the applicant's proposal reflect potential regulations?
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Although a regulation is of no effect until it has been officially promulgated, to minimize the subsequent impact that potential regulations may have on a licensee, an applicant can and should reflect reasonably foreseeable environmental regulations in planning, operating, and decommissioning a deepwater port.

з 148.709 How are these criteria reviewed and revised?
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The Commandant (G-M) periodically reviews and may revise these criteria. Reviews and revisions are conducted in accordance with 148.700 of this subpart. The criteria established are consistent with the National Environmental Policy Act (42 U.S.C. 4321Ц4347).

з 148.710 What environmental conditions must be satisfied?
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(a) MARAD may issue a license to construct a deepwater port under the Act, with or without conditions, if certain specified conditions are met. The relevant environmental considerations include, but are not limited to the following:

(1) Construction and operation of the deepwater port will be in the national interest and consistent with national security and other national policy goals and objectives, including energy sufficiency, environmental quality, and protection from the threat of terrorist attack and other subversive activity against persons and property on the port and the vessels and crews calling at the port; and

(2) Under the environmental review criteria in з148.707 of this subpart, the applicant has demonstrated that the deepwater port will be fabricated, constructed, operated, and decommissioned using the best available technology to prevent or minimize adverse impact on the environment (33 U.S.C. 1503(c)(3) and 1504).

(b) Under 33 U.S.C. 1504(f), these criteria must be considered in the preparation of a single, detailed environmental impact statement or environmental assessment for all timely applications covering a single application area. Additionally, 33 U.S.C. 1504(i)(3) specifies that, if more than one application is submitted for an Уapplication areaФ (as defined in 33 U.S.C. 1504(d)(2)), the criteria must be used, among other factors, in determining whether any one proposed deepwater port clearly best serves the national interest.

з 148.715 How is an environmental review conducted?
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The environmental review of a proposed deepwater port and reasonable alternatives consists of Federal, tribal, state, and public review of the following two parts:

(a) An evaluation of the proposal's completeness of environmental information and quality of assessment, probable environmental impacts, and identification of procedures or technology that might prevent or minimize probable adverse environmental impacts; and

(b) An evaluation of the effort made under the proposal to prevent or minimize its probable environmental impacts. This evaluation will assess the applicant's consideration of the criteria in зз148.720 through 148.740 of this subpart.

з 148.720 What are the siting criteria?
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In accordance with з148.715(b), the proposed and alternative sites for the deepwater port will be evaluated on the basis of how well each:

(a) Optimizes location to prevent or minimize detrimental environmental effects;

(b) Minimizes the space needed for safe and efficient operation;

(c) Locates offshore components in areas with stable sea-bottom characteristics;

(d) Locates onshore components where stable foundations can be developed;

(e) Minimizes the potential for interference with its safe operation from existing offshore structures and activities;

(f) Minimizes the danger posed to safe navigation by surrounding water depths and currents;

(g) Avoids extensive dredging or removal of natural obstacles such as reefs;

(h) Minimizes the danger to the port, its components, and tankers calling at the port from storms, earthquakes, or other natural hazards;

(i) Maximizes the permitted use of existing work areas, facilities, and access routes;

(j) Minimizes the environmental impact of temporary work areas, facilities, and access routes;

(k) Maximizes the distance between the port and its components and critical habitats including commercial and sport fisheries, threatened or endangered species habitats, wetlands, floodplains, coastal resources, marine management areas, and essential fish habitats;

(l) Minimizes the displacement of existing or potential mining, oil or gas production or transportation uses;

(m) Takes advantage of areas already allocated for similar use, without overusing such areas;

(n) Avoids permanent interference with natural processes or features that are important to natural currents and wave patterns; and

(o) Avoids dredging in areas where sediments contain high levels of heavy metals, biocides, oil or other pollutants or hazardous materials and in areas designated wetlands or other protected coastal resources.

з 148.722 Should the construction plan incorporate best available technology and recommended industry practices?
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Each applicant must submit a proposed construction plan. It must incorporate best available technology and recommended industry practices as directed in 148.730.

з 148.725 What are the design, construction and operational criteria?
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In accordance with 148.720(b), the deepwater port proposal and reasonable alternatives will be evaluated on the basis of how well they:

(a) Reflect the use of best available technology in design, construction procedures, operations, and decommissioning;

(b) Include safeguards, backup systems, procedures, and response plans to minimize the possibility and consequences of pollution incidents such as spills and discharges, while permitting safe operation with appropriate safety margins under maximum operating loads and the most adverse operating conditions;

(c) Provide for safe, legal, and environmentally sound waste disposal, resource recovery, affected area reclamation, and enhanced use of spoil and waste;

(d) Avoid permanent interference with natural processes or features that are important to natural currents and wave patterns;

(e) Avoid groundwater drawdown or saltwater intrusion, and minimizes mixing salt, fresh, and brackish waters;

(f) Avoid disrupting natural sheet flow, water flow, and drainage patterns or systems;

(g) Avoid interference with biotic populations, especially breeding habitats or migration routes;

(h) Maximize use of existing facilities;

(i) Provide personnel trained in oil spill prevention at critical locations identified in the accident analysis;

(j) Provide personnel trained in oil spill mitigation; and

(k) Plan for safe and effective removal of the deepwater port in the event of its decommissioning.

з 148.730 What are the land use and coastal zone management criteria?
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In accordance with з148.715(b), the deepwater port proposal and reasonable alternatives will be evaluated on the basis of how well they:

(a) Accord with existing and planned land use, including management of the coastal region, for which purpose the proposal must be accompanied by a consistency determination from appropriate state agencies;

(b) Adhere to proposed local and State master plans;

(c) Minimize the need for special exceptions, zoning variances, or non-conforming uses;

(d) Plan floodplain uses in ways that will minimize wetlands loss, flood damage, the need for Federally-funded flood protection or flood relief, or any decrease in the public value of the floodplain as an environmental resource; and

(e) Avoid permanent alteration or harm to wetlands and take positive steps to minimize adverse effects on wetlands.

з 148.735 What are other critical criteria that must be evaluated?
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In accordance with з148.715(b), the deepwater port proposal and reasonable alternatives will be evaluated on the basis of how well they:

(a) Avoid detrimental effects on human health and safety;

(b) Pose no compromise to national security;

(c) Account for the historic, archeological, and cultural significance of the area, including any potential requirements for historical preservation;

(d) Minimize harmful impacts to minorities and children; and

(e) Plan for serious consideration of the proposal that offers the least potential for environmental harm to the region or potential mitigation actions, when conflict exists between two or more proposed uses for a site.

з 148.737 What environmental statutes must an applicant follow?
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(a) In constructing and operating a deepwater port, the port must comply with all applicable Federal, State, and tribal environmental statutes. A list of the applicable Federal statutes includes but is not limited to: Abandoned Shipwreck Act (ASA), 43 U.S.C. 2102, et seq.; American Indian Religious Freedom Act (AIRFA), 42 U.S.C. 1996, et seq.; Antiquities Act, 16 U.S.C. 433, et seq.; Archeological and Historic Preservation Act (AHPA), 16 U.S.C. 469; Archeological Resources Protection Act (AHPA), 16 U.S.C. 470 aa-ll, et seq.; Architectural Barriers Act, 42 U.S.C. 4151, et seq.; Clean Air Act (CAA), Pub.L. 95Ц95, 42 U.S.C. 7401, et seq.; Clean Water Act of 1977 (CWA), Pub.L. 95Ц217, 33 U.S.C. 1251, et seq.; Coastal Barrier Resources Act (CBRA), Pub.L. 97Ц348, 16 U.S.C. 3510, et seq.; Coastal Zone Management Act (CZMA), Pub.L. 92Ц583, 16 U.S.C. 1451, et seq.; Community Environmental Response Facilitation Act (CERFA), 42 U.S.C. 9620, et seq.; Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), also commonly referred to as SUPERFUND, Pub.L. 96Ц510, 26 U.S.C. 4611, et seq.; Consultation and Coordination With Indian Tribal Governments, E.O. 13175, 65 FR 67249; Coral Reef Protection, E.O. 13089, 63 FR 32701; Department of Transportation Act, Section 4(f), Pub.L. 89Ц670, 49 U.S.C. 303, Section 4(f), et seq.; Emergency Planning and Community Right-to-Know Act, 42 U.S.C. 11001Ц11050, et seq.; Endangered Species Act of 1973 (ESA), Pub.L. 93Ц205, 16 U.S.C. 1531, et seq.; Energy Efficiency and Water Conservation at Federal Facilities, E.O. 12902, 59 FR 11463; Environmental Effects Abroad of Major Federal Agencies, E.O. 12114, 44 FR 1957; Environmental Quality Improvement Act, Pub.L. 98Ц581, 42 U.S.C. 4371, et seq.; Farmlands Protection Policy Act, Pub.L. 97Ц98, 7 U.S.C. 4201, et seq.; Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, E.O. 12898, 59 FR 7629; Federal Compliance with Pollution Control Standards, E.O. 12088, 43 FR 47707; Federal Insecticide, Fungicide, and Rodenticide Act, Pub.L. 86Ц139, 7 U.S.C. 135, et seq.; Federal Records Act (FRA), 44 U.S.C. 2101Ц3324, et seq.; Federalism, E.O. 13083, Fish and Wildlife Act of 1956, Pub.L. 85Ц888, 16 U.S.C. 742, et seq.; Fish and Wildlife Coordination Act, Pub.L. 85Ц624, 16 U.S.C. 661, et seq.; Fisheries Conservation and Recovery Act of 1976, Pub.L. 94Ц265, 16 U.S.C. 1801, et seq.; Flood Disaster Protection Act, 42 U.S.C. 4001, et seq.; Floodplain Management and Protection, E.O. 11988, 42 FR 26951; Greening the Government Through Leadership in Environmental Management, E.O. 13148, 65 FR 24595; Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition, E.O. 13101, 63 FR 49643; Historic Sites Act, 16 U.S.C. 46, et seq.; Indian Sacred Sites, E.O. 13007, 61 FR 26771; Intergovernmental Review of Federal Programs, E.O. 12372, 47 FR 30959; Invasive Species, E.O. 13112, 64 FR 6183; Locating Federal Facilities on Historic Properties in our Nation's Central Cities, E.O. 13006, 61 FR 26071; Magnuson-Stevens Fishery Conservation and Management Act as amended through October 11, 1996, 16 U.S.C. 1801, et seq.; Marine Mammal Protection Act of 1972 (MMPA), Pub.L. 92Ц522, 16 U.S.C. 1361; Marine Protected Areas, E.O. 13158, 65 FR 24909; Marine Protection, Research, and Sanctuaries Act of 1972, Pub.L. 92Ц532, 16 U.S.C. 1431, et seq. and 33 U.S.C. 1401, et seq.; Migratory Bird Treaty Act, 16 U.S.C. 703Ц712, et seq.; National Environmental Policy Act of 1969 (NEPA), Pub.L. 91Ц190, 42 U.S.C. 4321, et seq.; National Historic Preservation Act of 1996 (NHPA), Pub.L. 89Ц665, 16 U.S.C. 470, et seq.; Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3001, et seq.; Noise Control Act of 1972, Pub.L. 92Ц574, 42 U.S.C. 4901, et seq.; Pollution Prevention Act of 1990 (PPA), 42 U.S.C. 13101Ц13109, et seq.; Protection and Enhancement of Cultural Environmental Quality, E.O. 11593, 36 FR 8921; Protection and Enhancement of Environmental Quality, E.O. 11514, 35 FR 4247; Protection of Children from Environmental Health and Safety Risks, E.O. 13045, 62 FR 19885; Protection of Wetlands, E.O. 11990, 42 FR 26961; Recreational Fisheries, E.O. 12962, 60 FR 307695; Requiring Agencies to Purchase Energy Efficient Computer Equipment, E.O. 12845, 58 FR 21887; Resource Conservation and Recovery Act of 1976 (RCRA), Pub.L. 94Ц580, 42 U.S.C. 6901, et seq.; Responsibilities of Federal Agencies to Protect Migratory Birds, E.O. 13186, 66 FR 3853; Safe Drinking Water Act (SDWA), Pub.L. 93Ц523, 42, U.S.C. 201, et seq.; Toxic Substances Control Act (TSCA), 7 U.S.C. 136, et seq.; and Wild and Scenic Rivers Act, Pub.L. 90Ц542, 16 U.S.C. 1271, et seq.

(b) In addition, the port must comply with the applicable NEPA requirements for preparation of a single, detailed environmental study.