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


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DEPARTMENT OF TRANSPORTATION

Maritime Administration


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

AGENCY: Maritime Administration, DOT.

ACTION: Notice of proposed policy clarification.

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

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

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

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

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

[[Page 14412]]

the transportation, storage, or further handling of oil or natural gas 
for transportation to any State * * * .'' \2\ Deepwater ports include 
``all components and equipment, including pipelines * * * to the extent 
they are located seaward of the high water mark.'' \3\ The DWPA 
provides for a mandatory designation of State(s) as ``Adjacent Coastal 
State(s)'' (``ACS'') if certain criteria are met. Those criteria are if 
the ACS: (1) Would be ``directly connected by pipeline to a deepwater 
port,'' or (2) ``would be located within 15 miles of any such proposed 
deepwater port.'' \4\ The DWPA does not specify whether the 15 mile 
geographical limit for the automatic designation of an ACS should be 
marked in statute miles \5\ or nautical miles.\6\
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    \1\ The Secretary of Transportation delegated to the Maritime 
Administrator the authority to ``issue, transfer, amend, or 
reinstate a license for the construction and operation of a 
deepwater port.'' 49 CFR 1.93(h)(1).
    \2\ 33 U.S.C. 1502(9)(A).
    \3\ Id. at Sec.  1502(9)(B).
    \4\ Id. at Sec.  1502(1)(A)&(B). The Act also provides for a 
permissive designation of an ACS if, upon petition and provision of 
evidence, the Maritime Administrator determines that ``there is a 
risk of damage to the coastal environment of such State equal to or 
greater than the risk posed to a State directly connected by 
pipeline to the proposed deepwater port.'' 33 U.S.C. 1508(a)(2).
    \5\ One statute mile equals 5280 feet.
    \6\ One nautical mile equals 6076 feet.
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    Congress did not specify how the 15 mile distance should be 
measured. Nevertheless, an examination of the entire statute and 
legislative history leads to the conclusion that Congress intended that 
for these purposes, where units of distance measurement are not 
specified as statute miles or nautical miles, those units of 
measurement should be read in terms of generally accepted nautical 
standards (i.e., nautical miles).
    In enacting the DWPA, Congress declared its purpose to be, among 
other things, to: ``(1) authorize and regulate the location, ownership, 
construction, and operation of deepwater ports in waters beyond the 
territorial limits of the United States; [and] (2) provide for the 
protection of the marine and coastal environment to prevent or minimize 
any adverse impact which might occur as a consequence of the 
development of such ports.'' \7\ The Act defines the term ``coastal 
environment'' in relevant part as: ``the navigable waters (including 
the lands therein and thereunder) and the adjacent shorelines 
(including waters therein and thereunder).\8\ The term ``marine 
environment'' is defined as including: ``the coastal environment, 
waters of the contiguous zone, and waters of the high seas.'' \9\
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    \7\ 33 U.S.C. 1501(1)&(2).
    \8\ Id. at Sec.  1502(5).
    \9\ Id. at Sec.  1502(12).
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    The DWPA does not provide further definition of the terms 
``territorial limits,'' ``navigable waters (including the lands therein 
and thereunder),'' or ``contiguous zone.'' However, these 
jurisdictional boundaries have well accepted meanings both in 
international law and United States law and help clarify how the 15 
mile jurisdictional area for automatic designation of an ACS should be 
measured. Article 1 of the Convention on the Territorial Sea and the 
Contiguous Zone establishes that a Coastal State's sovereignty extends 
``beyond its land territory and internal waters, to a belt of sea 
adjacent to its coast, described as a territorial sea.'' \10\ Article 
24 of the treaty also establishes that a Coastal State may exercise 
certain authorities in a ``zone of the high seas contiguous to its 
territorial sea . * * *'' \11\ For purposes of the Treaty, both the 
Territorial Sea and the Contiguous Zone are measured from the 
``baseline,'' normally the mean low water line along the coast of the 
United States. The United Nations Convention on the Law of the Sea 
(``UNCLOS'') further clarifies the breadth of a Coastal State's 
jurisdiction in its Territorial Sea and Contiguous Zone by establishing 
a seaward limit of ``12 nautical miles'' and ``24 nautical miles'' 
respectively.\12\ Although the United States has not ratified UNCLOS, 
it has adopted the jurisdictional areas referenced in UNCLOS. In 
establishing its territorial limits, the United States has uniformly 
applied the international standard and used nautical miles as the unit 
of measurement.\13\
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    \10\ 15 U.S.T. 1606. This treaty was ratified by the United 
States on March 24, 1961, and entered into force on September 10, 
1964.
    \11\ Id.
    \12\ UNCLOS Part II, Article 2 and Article 33.
    \13\ See, e.g., Presidential Proclamation No. 5928 of December 
27, 1998: ``The territorial sea of the United States henceforth 
extends to 12 nautical miles from the baselines of the United States 
determined in accordance with international law.''
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    The Submerged Lands Act (``SLA'') was enacted in 1953.\14\ Its 
purpose was to ``confirm and establish the titles of the States to 
lands beneath navigable waters within State boundaries and to the 
natural resources within such lands and waters, to provide for the use 
and control of said lands and resources, and to confirm the 
jurisdiction and control of the United States over the natural 
resources of the seabed of the Continental Shelf seaward of State 
boundaries.'' \15\ The SLA defines the term ``boundaries'' in relevant 
part to include: ``the seaward boundaries of a State * * * but in no 
event shall the term `boundaries' be interpreted as extending from the 
coast line more than three geographical miles into the Atlantic Ocean 
or the Pacific Ocean, or more than three marine leagues into the Gulf 
of Mexico.'' \16\ The SLA also provides that ``[t]he seaward boundary 
of each original coastal State is hereby approved and confirmed as a 
line three geographical miles distant from its coast line * * * .'' 
\17\ In the case of United States v. California, the Supreme Court 
considered the extent of submerged lands granted to the State of 
California by the SLA. After reviewing the SLA and its legislative 
history, the Court concluded that the SLA ``effectively grants each 
State on the Pacific coast all submerged lands shoreward of a line 
three geographical miles from its coast line * * * .'' \18\ The Court 
further explained that ``one English, statute, or land mile equals 
approximately .87 geographical, marine, or nautical mile. The 
conventional `3-mile limit' under international law refers to three 
geographical miles, or approximately 3.45 land miles.'' \19\
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    \14\ 67 Stat. 29.
    \15\ Id.
    \16\ 43 U.S.C. 1301(b).
    \17\ Id. at Sec.  1312.
    \18\ U.S. v. California, 381 U.S. 139 at 148 (May 17, 1965).
    \19\ Id. at Fn. 8.
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    In defining the term ``coastal environment,'' the DWPA explicitly 
refers to ``navigable waters (including the lands therein and 
thereunder).'' \20\ This definition is similar to what is found in the 
SLA's statement of purpose (``lands beneath navigable waters within 
State boundaries''). As noted above, the SLA confers upon States title 
to, and ownership of, the ``lands beneath navigable waters within their 
boundaries,'' and applies geographical (nautical) miles for that 
purpose.
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    \20\ See Fn. 16 supra.
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    The legislative history of the DWPA reveals that Congress viewed 
ACS status as a jurisdictional issue. For example, in the Conference 
Report to the DWPA, the State's role in approving a deepwater port is 
discussed in terms of the three-mile limit which is measured in 
nautical miles. Congress recognized that ``under the Submerged Lands 
Act * * * the States have either exclusive or concurrent authority with 
the Federal government over most activities within the 3-mile limit,'' 
\21\ which is measured in geographical (nautical) miles. Moreover, the 
Senate Report noted, a Coastal State's jurisdiction would end at the 
State's three-nautical mile seaward boundary and the State would have 
no authority over the offshore activity.
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    \21\ 1974 U.S.C.C.A.N. 7529 at 7538.

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[[Page 14413]]

    Consistent with Congress' view of ACS status as a jurisdictional 
issue, the use of nautical miles to determine ACS status allows for an 
extension of the State's jurisdiction to be measured consistently with 
the measures of jurisdiction required by law. Absent this 
interpretation, a State's jurisdiction that is measured in nautical 
miles would then subsequently be extended by Congress under a different 
unit of measurement.
    In addition to the legislative history, the regulatory history of 
the Deepwater Ports program provides additional support for 
interpreting the DWPA to apply nautical miles to ACS designations. The 
original Final Rule in 33 CFR part 148 published on November 10, 1975, 
defined mile for the purposes of the regulations as a nautical 
mile.\22\ Though the definition for ``mile'' was subsequently removed 
in a May 20, 2003, Notice of Proposed Rulemaking and does not appear in 
the Final Rule published on September 29, 2006, 33 CFR part 2 indicates 
that nautical miles are the appropriate units of measurement to be 
employed for determining United States Coast Guard jurisdictional 
definitions where such jurisdictional definitions are not otherwise 
provided.\23\
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    \22\ 40 FR 52401 (Nov. 10, 1975).
    \23\ See 33 CFR 2.1(a) (``The purpose of this part is to define 
terms the U. S. Coast Guard uses in regulations, policies, and 
procedures, to determine whether it has jurisdiction on certain 
waters where specific jurisdictional definitions are not otherwise 
provided.'').
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    As a result of its interpretation of the DWPA, its legislative 
history, and implementing regulations, MarAd proposes to apply nautical 
miles when designating ACS in future Notices of Application under 33 
U.S.C. 1508(a)(1).

Request for Comments

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

    Dated: February 28, 2013.

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