[Federal Register Volume 78, Number 83 (Tuesday, April 30, 2013)]
[Notices]
[Pages 25349-25351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10080]
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DEPARTMENT OF TRANSPORTATION
Maritime Administration
Policy Clarification Concerning Designation of Adjacent Coastal
States for Deepwater Port License Applications
AGENCY: Maritime Administration, Department of Transportation.
ACTION: Notice of policy clarification.
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SUMMARY: The Maritime Administration (``MarAd'') is providing this
notice to clarify its policy on the unit of distance measurement to
apply when designating Adjacent Coastal States (``ACS'') under the
agency's Deepwater Ports licensing program.
FOR FURTHER INFORMATION CONTACT: Ms. Yvette Fields, Director of the
Office of Deepwater Ports and Offshore Activity, Maritime
Administration, Room W21-309, 1200 New Jersey Ave. SE., Washington, DC
20590; [email protected]; phone (202) 366-0926.
SUPPLEMENTARY INFORMATION: MarAd has reviewed policies and practices
with regard to the designation of ACS in the deepwater port application
licensing process. In past applications and public notices, MarAd found
inconsistency in the use of units of distance to describe the distance
between proposed deepwater ports and ACS.
Under 33 U.S.C. 1508(a)(1), when issuing a Notice of Application,
MarAd, as delegated by the Secretary of Transportation, shall designate
as an ACS ``any coastal State which (A) would be directly connected by
pipeline to a deepwater port as proposed in an application, or (B)
would be located within 15 miles of any such proposed deepwater port.''
In general, in its publications, MarAd adopted the units of measurement
provided by the deepwater port license applicants in their descriptions
of proposed deepwater ports. At different times, MarAd used statute
miles (approximately 0.87 nautical miles) or nautical miles
(approximately 1.15 statute miles) to describe the location of
deepwater ports in its publications.
Due to the configuration and physical location of proposed
deepwater port projects in prior applications, the use of either
statute or nautical miles did not impact the designation of ACS, since
those projects were either connected to the ACS directly by pipeline,
or were within both 15 statute and 15 nautical miles from those states.
As a result, MarAd was not required to clarify which unit of
measurement is the appropriate distance standard to apply when
designating an ACS in Notices of Application. However, for proposed
port locations where the chosen distance standard is significant to the
designation of ACS (applications where the port location falls beyond
15 statute miles but within 15 nautical miles of a potential ACS),
clarification of the distance standard is necessary. For the sake of
clarity in such instances, MarAd is issuing this Final Notice of Policy
Clarification that nautical miles shall be applied when designating ACS
under 33 U.S.C. 1508(a)(1).
The Deepwater Port Act (``DWPA'' or the ``Act'') (33 U.S.C. 1501 et
seq.) authorizes the Secretary of Transportation to issue licenses for
the construction and operation of deepwater ports.\1\ A deepwater port
is defined in Section 1502 of the Act as ``any fixed or floating
manmade structure other than a vessel, or any group of such structures,
that are located beyond State seaward boundaries and that are used or
intended for use as a port or terminal for the transportation, storage,
or further handling of oil or natural gas for transportation to any
State * * *.'' \2\ Deepwater ports include ``all components and
equipment, including pipelines[hellip]to the extent they are located
seaward of the high water mark.'' \3\ The DWPA provides for a mandatory
designation of State(s) as ``Adjacent Coastal State(s)'' (``ACS'') if
certain criteria are met. Those criteria are: (1) If the ACS would be
``directly connected by pipeline to a deepwater port,'' or (2) ``would
be located within 15 miles of
[[Page 25350]]
any such proposed deepwater port.'' \4\ The DWPA does not specify
whether the 15 mile geographical limit for the automatic designation of
an ACS should be measured in statute miles \5\ or nautical miles.\6\
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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. Sec. 1502(9)(B).
\4\ Id. Sec. 1502(1)(A-B). The Act also provides for a
permissive designation of an ACS if, upon petition and provision of
evidence, the Maritime Administrator determines that ``there is a
risk of damage to the coastal environment of such State equal to or
greater than the risk posed to a State directly connected by
pipeline to the proposed deepwater port.'' 33 U.S.C. 1508(a)(2).
\5\ One statute mile equals 5,280 feet.
\6\ One nautical mile equals 6,076 feet.
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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(a)(1-2).
\8\ Id. Sec. 1502(5).
\9\ Id. 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 U.S. 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 (U.S. Treaty). This treaty was ratified by
the United States on March 24, 1961, and entered into force on
September 10, 1964.
\11\ Id.
\12\ United Nations Convention on the Law of the Sea, Art. 2-3,
Art. 33, Dec. 10, 1982, 1833 U.N.T.S. 397.
\13\ See, e.g., Proclamation No. 5928, 54 FR 777 (Dec. 27, 1988)
(``The territorial sea of the United States henceforth extends to 12
nautical miles from the baselines of the United States determined in
accordance with international law.'')
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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,\18\ the Supreme Court
considered the extent of submerged lands granted to the State of
California by the SLA. After reviewing the SLA and its legislative
history, the court concluded that the SLA ``effectively grants each
State on the Pacific coast all submerged lands shoreward of a line
three geographical miles from its coast line * * *.'' \19\ The Court
further explained that ``one English, statute, or land mile equals
approximately 0.87 geographical, marine, or nautical mile. The
conventional `3-mile limit' under international law refers to three
geographical miles, or approximately 3.45 land miles.'' \20\
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\14\ 67 Stat. 29.
\15\ Id.
\16\ 43 U.S.C. 1301(b).
\17\ Id. Sec. 1312.
\18\ U.S. v. California, 381 U.S. 139(1965).
\19\ 381 U.S.C. at 148.
\20\ Id. at Fn. 8.
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In defining the term ``coastal environment'', the DWPA explicitly
refers to ``navigable waters (including the lands therein and
thereunder).'' \21\ This definition is similar to what is found in the
SLA's statement of purpose (``lands beneath navigable waters within
State boundaries'' \22\). As noted above, the SLA confers upon States
possession of title to, and ownership of the ``lands beneath navigable
waters within [their] boundaries,'' \23\ and applies geographical
(nautical) miles for that purpose.
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\21\ See supra Fn. 16.
\22\ 67 Stat. 29.
\23\ Id.
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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,'' \24\ which is measured in geographical (nautical) miles.
Moreover, the Senate Report noted, a coastal State's jurisdiction would
normally end at the State's three-nautical mile seaward boundary and
the State would have no authority over offshore activity beyond that
point.
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\24\ 1974 U.S.C.C.A.N. 7529, 7538.
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Consistent with Congress' view of ACS status as a jurisdictional
issue, the use of nautical miles to determine ACS status allows for an
extension of the State's jurisdiction to be measured consistently with
the measures of jurisdiction required by law. Absent this
interpretation, a State's jurisdiction that is measured in nautical
miles would then subsequently be extended by Congress under a different
unit of measurement.
[[Page 25351]]
In addition to the legislative history, the regulatory history of
the Deepwater Ports program provides further support for interpreting
the DWPA to apply nautical miles to ACS designations. The original
Final Rule in 33 CFR part 148 published on November 10, 1975, defined
mile for the purposes of the regulations as a nautical mile.\25\
Although the definition for ``mile'' was subsequently removed in a May
20, 2003 Notice of Proposed Rulemaking and did not appear in the Final
Rule published on September 29, 2006, 33 CFR part 2 indicates that
nautical miles are the appropriate units of measurement to be employed
for determining United States Coast Guard jurisdictional definitions
where such jurisdictional definitions are not otherwise provided.\26\
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\25\ 40 FR 52554 (Nov. 10, 1975).
\26\ See 33 CFR 2.1(a) (``The purpose of this part is to define
terms the Coast Guard uses in regulations, policies, and procedures,
to determine whether it has jurisdiction on certain waters where
specific jurisdictional definitions are not otherwise provided.'')
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Discussion of Comments
MarAd published a Notice of Proposed Policy Clarification on
Tuesday, March 5, 2013 (78 FR 14411). Interested persons were invited
to submit comments on the proposed policy clarification by April 4,
2013. MarAd received one comment. The comment and MarAd's response is
set forth in the following paragraph.
Clean Ocean Action, a coalition of diverse groups interested in
improving the water quality of the New Jersey and New York coastal
marine environment offered their support of the agency's analysis
stating,
Clearly, the MARAD analysis of the Congressional Record,
international law, and related domestic U.S. law properly led to the
conclusion that ``miles'', for the purposes of Deepwater Ports,
means nautical miles.
MarAd values Clean Ocean Action's input.
Accordingly, as a result of its interpretation of the DWPA, its
legislative history, and implementing regulations, MarAd will apply
nautical miles when designating ACS in future Notices of Application
under 33 U.S.C. 1508(a)(1).
Authority: 33 U.S.C. 1501, et seq.; 49 CFR 1.93(h)(1).
Dated: April 24, 2013.
By Order of the Maritime Administrator.
Julie Agarwal,
Secretary, Maritime Administration.
[FR Doc. 2013-10080 Filed 4-29-13; 8:45 am]
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