[Federal Register Volume 77, Number 229 (Wednesday, November 28, 2012)]
[Rules and Regulations]
[Pages 70886-70891]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-28794]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 127

[Docket No. USCG-2011-0227]
RIN 1625-AB67


Reconsideration of Letters of Recommendation for Waterfront 
Facilities Handling LNG and LHG

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: This final rule clarifies the role and purpose of the Letter 
of Recommendation (LOR) issued by the Coast Guard Captain of the Port 
regarding the suitability of a waterway for liquefied natural gas (LNG) 
or liquefied hazardous gas (LHG) marine traffic. It also establishes a 
separate process for reconsideration of LORs by the Coast Guard. The 
process applies only to LORs issued after the effective date of the 
rule.

DATES: This final rule is effective December 28, 2012.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2011-0227 and are available for inspection or 
copying at the 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, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays. You may also find this 
docket on the Internet by going to http://www.regulations.gov and 
inserting ``USCG-2011-0227'' in the ``Search'' box.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Mr. Ken Smith (CG-OES-2), U.S. Coast Guard; telephone 
(202) 372-1413, email Ken.A.Smith@uscg.mil. If you have questions on 
viewing the docket, call Renee V. Wright, Program Manager, Docket 
Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations
II. Regulatory History
III. Basis and Purpose
IV. Background
V. Discussion of Comments and Changes
VI. 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. Abbreviations

APA Administrative Procedure Act
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
NEPA National Environmental Policy Act of 1969
NPRM Notice of proposed rulemaking
Pub. L. Public Law
PWSA Ports and Waterways Safety Act of 1972, as amended
U.S.C. United States Code

II. Regulatory History

    On December 16, 2011, we published a notice of proposed rulemaking 
(NPRM) entitled ``Reconsideration of Letters of Recommendation for 
Waterfront Facilities Handling LNG and LHG'' in the Federal Register 
(76 FR

[[Page 70887]]

78188). We received two letters commenting on the proposed rule. No 
public meeting was requested and none was held.

III. Basis and Purpose

    Under existing regulations contained in 33 CFR part 127, an owner 
or operator intending to build a new waterfront facility handling 
liquefied natural gas (LNG) or liquefied hazardous gas (LHG), or 
planning new construction to expand or modify marine terminal 
operations in an existing waterfront facility that would result in an 
increase in the size and/or frequency of LNG or LHG marine traffic on 
the waterway associated with the proposed facility or modification to 
an existing facility, 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 COTP then issues, to the Federal, State, or local 
government agencies having jurisdiction for siting, construction, and 
operation of the facility, a Letter of Recommendation (LOR) as to the 
suitability of the waterway for LNG or LHG marine traffic related to 
the facility.
    The Coast Guard issues LORs pursuant to the authority of the Ports 
and Waterways Safety Act of 1972, as amended (PWSA) (33 U.S.C. 1221 et 
seq.). Section 813 of the Coast Guard Authorization Act of 2010 also 
directs the Coast Guard to make a recommendation to the Federal Energy 
Regulatory Commission (FERC) as to the suitability of marine traffic 
associated with a proposed waterside LNG facility (Pub. L. 111-281, 124 
Stat. 2905, 2999) (Oct. 15, 2010), and the LOR meets that requirement. 
This rule clarifies the role and purpose of the LOR, and establishes a 
separate process for reconsideration of LORs issued by the Coast Guard. 
This clarification and establishment of a new process are necessary 
because of confusion caused in part by the past practice of 
reconsidering LORs using the appeals process set forth in 33 CFR 
127.015. We issue this final rule under the authority of the statutes 
already described, as well as Department of Homeland Security 
Delegation No. 0170.1 and 33 CFR subpart 1.05.

IV. Background

    As described above, the Coast Guard issues an LOR in response to an 
LOI received from an owner or operator intending to build a new 
waterfront facility handling LNG or LHG, or planning new construction 
to expand or modify marine terminal operations in an existing facility 
that would result in an increase in the size and/or frequency of LNG or 
LHG marine traffic on the waterway associated with the proposed 
facility or modification to an existing facility. The LOR is intended 
to provide an expert, unbiased recommendation as to whether the 
waterway and port infrastructure can safely and securely support the 
anticipated marine traffic associated with the new or modified 
facility.
    Prior to May 2010, the COTP issued the LOR to the owner or operator 
of the facility as well as to the State and local government agencies 
with jurisdiction. However, in 2010 the Coast Guard changed that 
process in a final rule updating the LOI and LOR regulations 
(``Revision of LNG and LHG Waterfront Facility General Requirements,'' 
75 FR 29420 (May 26, 2010)). Currently, the Coast Guard issues the LOR 
to the Federal, State, or local government agency having jurisdiction 
for siting, construction, and operation of the waterfront facility 
(referred to in this document as the ``jurisdictional agency''), and 
sends a copy to the owner or operator of the proposed facility. The 
majority of recent LOR recipients have been facilities handling LNG, 
and FERC is the jurisdictional agency with exclusive authority to 
approve or deny an application for the siting, construction, expansion, 
and operation of an LNG terminal. FERC has incorporated into its 
regulations the Coast Guard's requirement that the facility owner or 
operator submit an LOI (33 CFR 127.007), making submission of the LOI 
to the Coast Guard a required element of the facility owner or 
operator's application for FERC approval (18 CFR 157.21(a)(1)). 
Following the receipt of the facility owner or operator's LOI, the COTP 
issues the LOR to FERC, as part of FERC's public comment and decision 
making process, as a function of the Coast Guard's subject matter 
expertise (33 CFR 127.009). Unlike the LOI, the LOR is not a pre-filing 
or a permitting requirement under FERC regulations, and is not a 
required element of the facility owner or operator's application to 
FERC. The LOR is the Coast Guard's ``comment'' on FERC's proposed 
action.
    Several issued LORs have invited the recipient to request 
reconsideration of the LOR pursuant to 33 CFR 127.015, which provides 
that ``[a]ny person directly affected by an action taken under this 
part may request reconsideration by the Coast Guard officer responsible 
for that action.'' The process set forth in Sec.  127.015 is the same 
that an owner or operator would use to appeal agency actions described 
elsewhere in Part 127, such as a COTP's Order to suspend operations. 
The use of Sec.  127.015 to request reconsideration of LORs, however, 
has led to confusion about the nature and proper role of the LOR. This 
is in part because use of the words ``action'' and ``final agency 
action'' in Sec.  127.015 create confusion as to whether the LOR is an 
agency action for purposes of the Administrative Procedure Act (APA) (5 
U.S.C. 551 et seq.). While we believe LORs should be subject to 
internal Coast Guard review, we did not intend to suggest that an LOR 
is an agency action, or that the LOR conveys a right or obligation.
    As we explained in the NPRM, the LOR is not an ``agency action'' as 
that term is defined by the APA or understood in the context of 
enforceable legal actions. To constitute agency action for purposes of 
the APA, an activity must constitute, in whole or in part, an agency 
rule, order, license, sanction, relief, or the equivalent or denial 
thereof, or failure to act (5 U.S.C. 551(13)). The LOR is none of 
these. The LOR neither entitles nor forbids an owner or operator to 
construct or modify an LNG or LHG facility. The Coast Guard has no 
authority to site or license waterfront facilities handling LNG or LHG. 
Rather, the Coast Guard provides its LOR to an agency that does have 
that authority--the jurisdictional agency--to inform that agency's 
review of the siting, construction, or operation of a facility. The LOR 
is a recommendation, and is not legally enforceable on or by any agency 
or person, including the Coast Guard.
    As discussed above, we believe that some of the past confusion 
regarding the nature of LORs stems from the Coast Guard's use of 33 CFR 
127.015 for LOR reconsiderations. The process in Sec.  127.015 is 
designed for appeals of agency actions taken under the authority of 
Part 127,\1\ and using that same process for internal reconsideration 
of LORs inadvertently caused confusion between the two. In particular, 
Sec.  127.015 applies to ``[a]ny person directly affected by an action 
taken under this part,'' and using that language in reference to an 
unenforceable recommendation is inapt.
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    \1\ The Coast Guard does take agency action with respect to LNG 
and LHG facilities when it enforces its rules addressing the 
operation, maintenance, personnel training, firefighting, and 
security of the marine transfer area of waterfront facilities that 
handle LNG or LHG cargos, and when the COTP issues an Order 
directing vessel operations. See the detailed discussion in the NPRM 
(76 FR 78189).
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    The Coast Guard seeks to resolve the resulting confusion and, 
further, believes the process in Sec.  127.015 is inappropriately 
complicated and lengthy in light of the LOR's role as a recommendation 
to another agency in the context of that agency's permitting

[[Page 70888]]

process. The LOR is intended to inform the jurisdictional agency's 
process, and therefore should be available to the jurisdictional agency 
early in that process. A reconsideration process that results in 
revisions to the LOR after the jurisdictional agency's decision does 
not serve the purpose of the LOR.

V. Discussion of Comments and Changes

    The Coast Guard received two letters commenting on this proposed 
rulemaking: one from the Attorney General for the State of Rhode 
Island, and one from the Rhode Island Department of Environmental 
Management. Both commenters expressed the opinion that issuance of an 
LOR constitutes an agency action under the APA, and one expressed the 
opinion that the issuance of an LOR is a major federal action that 
triggers the environmental impact analysis requirements of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370h). The 
Coast Guard disagrees with these comments.
    Pursuant to the Natural Gas Act, as amended, FERC possesses the 
exclusive authority to approve or deny an application for the siting, 
construction, expansion, and operation of a waterfront LNG facility 
(see 15 U.S.C. 717b(e)). Similarly, for proposals to site, construct, 
expand, or operate a waterfront LHG facility, the agency with 
jurisdiction (Federal, State, or local) over the project possesses 
approval authority. The agency with jurisdiction over the proposed 
action of siting, constructing, or operating the waterfront LNG or LHG 
facility serves as the lead agency responsible for complying with the 
applicable environmental review requirements.
    Issuance of an LOR is not an ``action'' by the Coast Guard under 
the APA or NEPA. The LOR is not the functional equivalent of a permit 
or a form of permission that substantively affects a license, nor is it 
a ``determination'' that can be enforced. The Coast Guard has no 
jurisdiction to authorize the siting, construction, and operation of 
waterfront LNG and LHG facilities. Jurisdictional agencies, such as 
FERC, are not required to issue or deny a license or other 
authorization based on the recommendations contained in an LOR, or 
impose any recommended mitigation measures as terms of the 
authorization, even where the LOR is required. The Coast Guard has no 
authority over the content of the jurisidictional agency's license or 
permit. Although the Coast Guard is required to provide recommendations 
to FERC under section 813 of the Coast Guard Authorization Act of 2010, 
(Pub. L. 111-281, 124 Stat. 2905, 2999 (Oct. 15, 2010)), FERC is not 
prohibited from issuing an order without having received a Coast Guard 
recommendation. For these reasons, the LOR does not ``substantively 
affect'' a license or licensing process as suggested by the commenters. 
The LOR merely provides information for the jurisdictional agency to 
consider in its own deliberative process.
    Furthermore, issuing an LOR neither authorizes nor prohibits vessel 
transit to or from the LNG or LHG facility. If safety or security 
concerns prompted the Coast Guard to address vessel operations near the 
facility, the Coast Guard Captain of the Port (COTP) would do so in a 
COTP order; that COTP order would be issued pursuant to specific 
authority granted by the Ports and Waterways Safety Act (PWSA) (33 
U.S.C. 1221 et seq.) that is wholly independent of, and does not rely 
on or enforce, an LOR. To interpret the LOR as a Federal agency action 
under the APA would impermissibly detract from the jurisdictional 
agency's authority to license the siting, construction, and operation 
of LNG and LHG waterfront facilities.
    Issuing an LOR is not a major Federal action that triggers an 
independent duty to prepare an environmental impact analysis under 
NEPA. NEPA requires FERC, as the responsible official for the 
permitting process, to consult with agencies that have special 
expertise with respect to any environmental impact involved (42 U.S.C. 
4332(C)). There is no requirement, however, that the agency consulted 
prepare a separate environmental impact statement (42 U.S.C. 4332; see 
also 40 CFR 1501.5). The Coast Guard, as an agency with subject matter 
expertise in matters affecting the safety and security of the waterway, 
serves as a cooperating agency to the jurisdictional agency (see 40 CFR 
1501.6). In this role as a cooperating agency, and in accordance with 
33 CFR Part 127, the Coast Guard makes its recommendation as to the 
suitability of the waterway to the Federal, State, or local government 
agency with jurisdiction. This recommendation, communicated in the LOR, 
is a document to be used in the jurisdictional agency's permitting 
process. There is no requirement that it independently comply with NEPA 
or other environmental compliance statutes.
    For the reasons explained above, the LOR is not an ``agency 
action'' under the APA or a major Federal action under NEPA. The Coast 
Guard has made no change to the proposed rule in response to the 
comments received.
    The Coast Guard did change the rule by adding the words ``Indian 
tribal government'' to the list of entities that may request 
reconsideration of the LOR pursuant to the revised Sec.  127.009(c), 
with conforming changes in revised Sec.  127.009(d). As we explained in 
our NPRM, new Sec.  127.009(c) is intended to provide opportunity for 
additional discussion with governmental entities in the vicinity of the 
facility who may have unique information about the safety and security 
of the waterway (76 FR 78190). In our NPRM we provided notice and 
opportunity for public comment on this optional participation of local 
government entities in the reconsideration process. Like State and 
local governments, Indian tribal governments in the vicinity of a 
facility may be able to provide unique information regarding safety and 
security issues affecting the suitability of certain waterways, and 
logically would be included among the entities that may choose to 
request reconsideration. Adding Indian tribal governments to the list 
of entities will avoid any ambiguity as to their inclusion, and does 
not alter the intent or expected effect of the rule.
    Separately, the Coast Guard slightly reworded new Sec.  
127.010(c)(1) for clarity. Both changes are nonsubstantive 
clarifications for which prior notice and public comment is unnecessary 
under 5 U.S.C. 553(b)(B).

VI. Regulatory Analyses

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

A. Regulatory Planning and Review

    Executive Orders 12866 (``Regulatory Planning and Review'') and 
13563 (``Improving Regulation and Regulatory Review'') direct agencies 
to assess the costs and benefits of available regulatory alternatives 
and, if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. This final rule has not been designated a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866. Accordingly, the final rule has not been

[[Page 70889]]

reviewed by the Office of Management and Budget.
    We received no public comments from industry and we received no 
additional information or data that would alter our assessment of the 
NPRM. Therefore, we adopt the Preliminary Regulatory Analysis for the 
NPRM as final. A summary of the analysis follows:
    This rule clarifies the role and purpose of the LORs issued by the 
Coast Guard COTP regarding the suitability of a waterway for LNG or LHG 
marine traffic. It also provides a separate process for LOR 
reconsideration for facility owners or operators and State, local, or 
Indian tribal government in the vicinity of the facility. If an LNG or 
LHG facility owner or operator or State, local, or Indian tribal 
government were to seek reconsideration of an LOR, a written request 
would be sent to the COTP who issued the LOR, and a copy would be sent 
to the jurisdictional agency. The process applies only to LORs issued 
after the effective date of the rule.
    We do not expect this rule to impose new regulatory costs on the 
LNG/LHG industry because an LNG or LHG facility owner or operator and 
State, local, or Indian tribal government in the vicinity of the 
facility will only request reconsideration if it does not agree with 
the recommendation. The option to request reconsideration of an LOR has 
been an industry practice for several years. Since 2007, there has been 
an average of about three requests for reconsiderations annually. As 
previously discussed, this rule replaces the existing process for 
reconsideration with the process in new Sec.  127.010, and applies to 
new LORs issued after the effective date of the rule, not to LORs 
already issued. For these reasons, no change in either the burden or 
the frequency of requests is projected as a result of this rulemaking. 
Although market conditions may change in the future, the Coast Guard 
does not have any data to indicate the receipt of new requests for 
reconsideration of LORs within the foreseeable future.

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. 
The Coast Guard received no comments from the Small Business 
Administration on this rule.
    Large corporations own the 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 159 LHG facilities 
operating in the United States. In addition, as stated above, the Coast 
Guard does not expect a change in either the burden or the frequency of 
requests as a result of this rulemaking. Therefore, the Coast Guard 
certifies under 5 U.S.C. 605(b) that this final rule will not have a 
significant economic impact on a substantial number of small entities.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking. 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.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1 (888) 734-3247).

D. Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

E. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this 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 (adjusted for 
inflation) or more in any one year. Though this rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

G. Taking of Private Property

    This rule will not cause 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 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 rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

J. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments. 
This rule does give Indian tribal governments in the vicinity of the 
facility the option to request reconsideration of Coast Guard LORs for 
that facility, but it does 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 rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
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

[[Page 70890]]

require a Statement of Energy Effects under Executive Order 13211.

L. Technical Standards

    The National Technology Transfer and Advancement Act (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 rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

M. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 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. 4321-4370h), and have concluded 
that this action is one of a category of actions that do not 
individually or cumulatively have a significant effect on the human 
environment. This rule involves creating a separate process for 
reconsideration of LORs and is categorically excluded under section 
2.B.2, figure 2-1, paragraph (34)(a) of the Instruction, which includes 
regulations that are editorial or procedural, such as those updating 
addresses or establishing application procedures. An environmental 
analysis checklist and a categorical exclusion determination are 
available in the docket where indicated under the ADDRESSES section of 
this preamble.

List of Subjects in 33 CFR Part 127

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

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 127 as follows:

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

0
1. The authority citation for part 127 continues to read as follows:

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


0
2. Revise Sec.  127.009 to read as follows:


Sec.  127.009  Letter of recommendation.

    (a) After the COTP receives the Letter of Intent under Sec.  
127.007(a) or (b), the COTP issues a Letter of Recommendation (LOR) as 
to the suitability of the waterway for LNG or LHG marine traffic to the 
Federal, State, or local government agencies having jurisdiction for 
siting, construction, and operation, and, at the same time, sends a 
copy to the owner or operator, based on the--
    (1) Information submitted under Sec.  127.007;
    (2) Density and character of marine traffic in the waterway;
    (3) Locks, bridges, or other man-made obstructions in the waterway;
    (4) Following factors adjacent to the facilitysuch as--
    (i) Depths of the water;
    (ii) Tidal range;
    (iii) Protection from high seas;
    (iv) Natural hazards, including reefs, rocks, and sandbars;
    (v) Underwater pipelines and cables;
    (vi) Distance of berthed vessel from the channel and the width of 
the channel; and
    (5) Any other issues affecting the safety and security of the 
waterway and considered relevant by the Captain of the Port.
    (b) An LOR issued under this section is a recommendation from the 
COTP to the agency having jurisdiction as described in paragraph (a), 
and does not constitute agency action for the purposes of Sec.  127.015 
or the Administrative Procedure Act (5 U.S.C. 551 et seq.).
    (c) The owner or operator, or a State, local, or Indian tribal 
government in the vicinity of the facility, may request reconsideration 
as set forth in Sec.  127.010.
    (d) Persons other than the owner or operator, or State, local, or 
Indian tribal government in the vicinity of the facility, may comment 
on the LOR by submitting comments and relevant information to the 
agency having jurisdiction, as described in paragraph (a), for that 
agency's consideration in its permitting process.
    (e) Paragraphs (c) and (d) of this section apply to LORs issued 
after December 28, 2012. For LORs issued prior to that date, persons 
requesting reconsideration must follow the process set forth in Sec.  
127.015.

0
3. Add Sec.  127.010 to read as follows:


Sec.  127.010  Reconsideration of the Letter of Recommendation.

    (a) A person requesting reconsideration pursuant to Sec.  
127.009(c) must submit a written request to the Captain of the Port 
(COTP) who issued the Letter of Recommendation (LOR), and send a copy 
of the request to the agency to which the LOR was issued. The request 
must explain why the COTP should reconsider his or her recommendation.
    (b) In response to a request described in paragraph (a) of this 
section, the COTP will do one of the following--
    (1) Send a written confirmation of the LOR to the agency to which 
the LOR was issued, with copies to the person making the request and 
the owner or operator; or
    (2) Revise the LOR, and send the revised LOR to the agency to which 
the original LOR was issued, with copies to the person making the 
request and the owner or operator.
    (c) A person whose request for reconsideration results in a 
confirmation as described in paragraph (b)(1) of this section, and who 
is not satisfied with that outcome, may request, in writing, the 
opinion of the District Commander of the district in which the LOR was 
issued.
    (1) The request must explain why the person believes the District 
Commander should instruct the COTP to reconsider his or her 
recommendation.
    (2) A person making a request under paragraph (c) of this section 
must send a copy of the request to the agency to which the LOR was 
issued.
    (3) In response to the request described in this paragraph (c), the 
District Commander will do one of the following--
    (i) Send a written confirmation of the LOR to the agency to which 
the LOR was issued, with copies to the person making the request, the 
owner or operator, and the COTP; or
    (ii) Instruct the COTP to reconsider the LOR, and send written 
notification of that instruction to the agency to which the original 
LOR was issued, with copies to the person making the request and the 
owner or operator.
    (d) The District Commander's written confirmation described in 
paragraph (c)(3)(i) of this section ends the reconsideration process 
with respect to that specific request for reconsideration. If the COTP 
issues an LOR pursuant to paragraph (b)(2) or (c)(3)(ii) of this 
section, persons described in

[[Page 70891]]

Sec.  127.009(c) may request reconsideration of that revised LOR using 
the process beginning in paragraph (a) of this section.

    Dated: November 14, 2012.
J.G. Lantz,
Director of Commercial Regulations and Standards, U.S. Coast Guard.
[FR Doc. 2012-28794 Filed 11-27-12; 8:45 am]
BILLING CODE 9110-04-P