§ 1504. — Procedure.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 33USC1504]
TITLE 33--NAVIGATION AND NAVIGABLE WATERS
CHAPTER 29--DEEPWATER PORTS
Sec. 1504. Procedure
(a) Regulations; issuance, amendment, or rescission; scope
The Secretary shall, as soon as practicable after January 3, 1975,
and after consultation with other Federal agencies, issue regulations to
carry out the purposes and provisions of this chapter in accordance with
the provisions of section 553 of title 5, without regard to subsection
(a) thereof. Such regulations shall pertain to, but need not be limited
to, application, issuance, transfer, renewal, suspension, and
termination of licenses. Such regulations shall provide for full
consultation and cooperation with all other interested Federal agencies
and departments and with any potentially affected coastal State, and for
consideration of the views of any interested members of the general
public. The Secretary is further authorized, consistent with the
purposes and provisions of this chapter, to amend or rescind any such
regulation.
(b) Additional regulations; criteria for site evaluation and
preconstruction testing
The Secretary, in consultation with the Secretary of the Interior
and the Administrator of the National Oceanic and Atmospheric
Administration, shall, as soon as practicable after January 3, 1975,
prescribe regulations relating to those activities involved in site
evaluation and preconstruction testing at potential deepwater port
locations 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. Such activity may thenceforth not be
undertaken except in accordance with regulations prescribed pursuant to
this subsection. Such regulations shall be consistent with the purposes
of this chapter.
(c) Plans; submittal to Secretary of Transportation; publication in
Federal Register; application contents; exemption
(1) Any person making an application under this chapter shall submit
detailed plans to the Secretary. Within 21 days after the receipt of an
application, the Secretary shall determine whether the application
appears to contain all of the information required by paragraph (2)
hereof. If the Secretary determines that such information appears to be
contained in the application, the Secretary shall, no later than 5 days
after making such a determination, publish notice of the application and
a summary of the plans in the Federal Register. If the Secretary
determines that all of the required information does not appear to be
contained in the application, the Secretary shall notify the applicant
and take no further action with respect to the application until such
deficiencies have been remedied.
(2) Each application shall include such financial, technical, and
other information as the Secretary deems necessary or appropriate. Such
information shall include, but need not be limited to--
(A) the name, address, citizenship, telephone number, and the
ownership interest in the applicant, of each person having any
ownership interest in the applicant of greater than 3 per centum;
(B) to the extent feasible, the name, address, citizenship, and
telephone number of any person with whom the applicant has made, or
proposes to make, a significant contract for the construction or
operation of the deepwater port and a copy of any such contract;
(C) the name, address, citizenship, and telephone number of each
affiliate of the applicant and of any person required to be
disclosed pursuant to subparagraphs (A) or (B) of this paragraph,
together with a description of the manner in which such affiliate is
associated with the applicant or any person required to be disclosed
under subparagraph (A) or (B) of this paragraph;
(D) the proposed location and capacity of the deepwater port,
including all components thereof;
(E) the type and design of all components of the deepwater port
and any storage facilities associated with the deepwater port;
(F) with respect to construction in phases, a detailed
description of each phase, including anticipated dates of completion
for each of the specific components thereof;
(G) the location and capacity of existing and proposed storage
facilities and pipelines which will store or transport oil
transported through the deepwater port, to the extent known by the
applicant or any person required to be disclosed pursuant to
subparagraphs (A), (B), or (C) of this paragraph;
(H) with respect to any existing and proposed refineries which
will receive oil transported through the deepwater port, the
location and capacity of each such refinery and the anticipated
volume of such oil to be refined by each such refinery, to the
extent known by the applicant or any person required to be disclosed
pursuant to subparagraphs (A), (B), or (C) of this paragraph;
(I) the financial and technical capabilities of the applicant to
construct or operate the deepwater port;
(J) other qualifications of the applicant to hold a license
under this chapter;
(K) a description of procedures to be used in constructing,
operating, and maintaining the deepwater port, including systems of
oil spill prevention, containment, and cleanup; and
(L) such other information as may be required by the Secretary
to determine the environmental impact of the proposed deepwater
port.
(3) Upon written request of any person subject to this subsection,
the Secretary may make a determination in writing to exempt such person
from any of the informational filing provisions enumerated in this
subsection or the regulations implementing this section if the Secretary
determines that such information is not necessary to facilitate the
Secretary's determinations under section 1503 of this title and that
such exemption will not limit public review and evaluation of the
deepwater port project.
(d) Application area; publication in Federal Register; ``application
area'' defined; submission of other applications; notice of
intent and submission of completed applications; denial of
pending application prior to consideration of other untimely
applications
(1) At the time notice of an application is published pursuant to
subsection (c) of this section, the Secretary shall publish a
description in the Federal Register of an application area encompassing
the deepwater port site proposed by such application and within which
construction of the proposed deepwater port would eliminate, at the time
such application was submitted, the need for any other deepwater port
within that application area.
(2) As used in this section, ``application area'' means any
reasonable geographical area within which a deepwater port may be
constructed and operated. Such application area shall not exceed a
circular zone, the center of which is the principal point of loading and
unloading at the port, and the radius of which is the distance from such
point to the high water mark of the nearest adjacent coastal State.
(3) The Secretary shall accompany such publication with a call for
submission of any other applications for licenses for the ownership,
construction, and operation of a deepwater port within the designated
application area. Persons intending to file applications for such
license shall submit a notice of intent to file an application with the
Secretary not later than 60 days after the publication of notice
pursuant to subsection (c) of this section and shall submit the
completed application no later than 90 days after publication of such
notice. The Secretary shall publish notice of any such application
received in accordance with subsection (c) of this section. No
application for a license for the ownership, construction, and operation
of a deepwater port within the designated application area for which a
notice of intent to file was received after such 60-day period, or which
is received after such 90-day period has elapsed, shall be considered
until the application pending with respect to such application area have
been denied pursuant to this chapter.
(4) This subsection shall not apply to deepwater ports for natural
gas.
(e) Recommendations to Secretary of Transportation; application for all
Federal authorizations; copies of application to Federal
agencies and departments with jurisdiction; recommendation of
approval or disapproval and of manner of amendment to comply
with laws or regulations
(1) Not later than 30 days after January 3, 1975, the Secretary of
the Interior, the Administrator of the Environmental Protection Agency,
the Chief of Engineers of the United States Army Corps of Engineers, the
Administrator of the National Oceanic and Atmospheric Administration,
and the heads of any other Federal department or agencies having
expertise concerning, or jurisdiction over, any aspect of the
construction or operation of deepwater ports shall transmit to the
Secretary written comments as to their expertise or statutory
responsibilities pursuant to this chapter or any other Federal law.
(2) An application filed with the Secretary shall constitute an
application for all Federal authorizations required for ownership,
construction, and operation of a deepwater port. At the time notice of
any application is published pursuant to subsection (c) of this section,
the Secretary shall forward a copy of such application to those Federal
agencies and departments with jurisdiction over any aspect of such
ownership, construction, or operation for comment, review, or
recommendation as to conditions and for such other action as may be
required by law. Each agency or department involved shall review the
application and, based upon legal considerations within its area of
responsibility, recommend to the Secretary, the approval or disapproval
of the application not later than 45 days after the last public hearing
on a proposed license for a designated application area. In any case in
which the agency or department recommends disapproval, it shall set
forth in detail the manner in which the application does not comply with
any law or regulation within its area of responsibility and shall notify
the Secretary how the application may be amended so as to bring it into
compliance with the law or regulation involved.
(f) NEPA compliance
For all applications, the Secretary, in cooperation with other
involved Federal agencies and departments, shall comply with the
National Environmental Policy Act of 1969 (42 U.S.C. 4332) [42 U.S.C.
4321 et seq.]. Such compliance shall fulfill the requirement of all
Federal agencies in carrying out their responsibilities under the
National Environmental Policy Act of 1969 pursuant to this chapter.
(g) Public notice and hearings; evidentiary hearing in District of
Columbia; decision of Secretary based on evidentiary record;
consolidation of hearings
A license may be issued only after public notice and public hearings
in accordance with this subsection. At least one such public hearing
shall be held in each adjacent coastal State. Any interested person may
present relevant material at any hearing. After hearings in each
adjacent coastal State are concluded if the Secretary determines that
there exists one or more specific and material factual issues which may
be resolved by a formal evidentiary hearing, at least one adjudicatory
hearing shall be held in accordance with the provisions of section 554
of title 5 in the District of Columbia. The record developed in any such
adjudicatory hearing shall be basis for the Secretary's decision to
approve or deny a license. Hearings held pursuant to this subsection
shall be consolidated insofar as practicable with hearings held by other
agencies. All public hearings on all applications for any designated
application area shall be consolidated and shall be concluded not later
than 240 days after notice of the initial application has been published
pursuant to subsection (c) of this section.
(h) Nonrefundable application fee; processing costs; State fees; ``land-
based facilities directly related to a deepwater port facility''
defined; fair market rental value, advance payment
(1) Each person applying for a license pursuant to this chapter
shall remit to the Secretary at the time the application is filed a
nonrefundable application fee established by regulation by the
Secretary. In addition, an applicant shall also reimburse the United
States and the appropriate adjacent coastal State for any additional
costs incurred in processing an application.
(2) Notwithstanding any other provision of this chapter, and unless
prohibited by law, an adjacent coastal State may fix reasonable fees for
the use of a deepwater port facility, and such State and any other State
in which land-based facilities directly related to a deepwater port
facility are located may set reasonable fees for the use of such land-
based facilities. Fees may be fixed under authority of this paragraph as
compensation for any economic cost attributable to the construction and
operation of such deepwater port and such land-based facilities, which
cannot be recovered under other authority of such State or political
subdivision thereof, including, but not limited to, ad valorem taxes,
and for environmental and administrative costs attributable to the
construction and operation of such deepwater port and such land-based
facilities. Fees under this paragraph shall not exceed such economic,
environmental, and administrative costs of such State. Such fees shall
be subject to the approval of the Secretary. As used in this paragraph,
the term ``land-based facilities directly related to a deepwater port
facility'' means the onshore tank farm and pipelines connecting such
tank farm to the deepwater port facility.
(3) A licensee shall pay annually in advance the fair market rental
value (as determined by the Secretary of the Interior) of the subsoil
and seabed of the Outer Continental Shelf of the United States to be
utilized by the deepwater port, including the fair market rental value
of the right-of-way necessary for the pipeline segment of the port
located on such subsoil and seabed.
(i) Application approval; period for determination; priorities; criteria
for determination of application best serving national interest
(1) The Secretary shall approve or deny any application for a
designated application area submitted pursuant to this chapter not later
than 90 days after the last public hearing on a proposed license for
that area.
(2) In the event more than one application is submitted for an
application area, the Secretary, unless one of the proposed deepwater
ports clearly best serves the national interest, shall issue a license
according to the following order of priorities:
(A) to an adjacent coastal State (or combination of States), any
political subdivision thereof, or agency or instrumentality,
including a wholly owned corporation of any such government;
(B) to a person who is neither (i) engaged in producing,
refining, or marketing oil, nor (ii) an affiliate of any person who
is engaged in producing, refining, or marketing oil or an affiliate
of any such affiliate;
(C) to any other person.
(3) In determining whether any one proposed deepwater port clearly
best serves the national interest, the Secretary shall consider the
following factors:
(A) the degree to which the proposed deepwater ports affect the
environment, as determined under criteria established pursuant to
section 1505 of this title;
(B) any significant differences between anticipated completion
dates for the proposed deepwater ports; and
(C) any differences in costs of construction and operation of
the proposed deepwater ports, to the extent that such differential
may significantly affect the ultimate cost of oil to the consumer.
(4) The Secretary shall approve or deny any application for a
deepwater port for natural gas submitted pursuant to this chapter not
later than 90 days after the last public hearing on a proposed license.
Paragraphs (1), (2), and (3) of this subsection shall not apply to an
application for a deepwater port for natural gas.
(Pub. L. 93-627, Sec. 5, Jan. 3, 1975, 88 Stat. 2131; Pub. L. 98-419,
Sec. 2(f), Sept. 25, 1984, 98 Stat. 1607; Pub. L. 104-324, title V,
Sec. 505, Oct. 19, 1996, 110 Stat. 3927; Pub. L. 107-295, title I,
Sec. 106(c), (f), (g), Nov. 25, 2002, 116 Stat. 2086-2088.)
References in Text
The National Environmental Policy Act of 1969, referred to in
subsec. (f), is Pub. L. 91-190, Jan. 1, 1970, 83 Stat. 852, as amended,
which is classified generally to chapter 55 (Sec. 4321 et seq.) of Title
42, The Public Health and Welfare. For complete classification of this
Act to the Code, see Short Title note set out under section 4321 of
Title 42 and Tables.
Amendments
2002--Subsec. (d)(4). Pub. L. 107-295, Sec. 106(c)(1), added par.
(4).
Subsec. (f). Pub. L. 107-295, Sec. 106(f), substituted ``NEPA
compliance'' for ``Environmental impact statement for single application
area; criteria'' in heading and amended text generally. Prior to
amendment, text read as follows: ``For all timely applications covering
a single application area, the Secretary, in cooperation with other
involved Federal agencies and departments, shall, pursuant to section
4332(2)(C) of title 42, prepare a single, detailed environmental impact
statement, which shall fulfill the requirement of all Federal agencies
in carrying out their responsibilities pursuant to this chapter to
prepare an environmental impact statement. In preparing such statement
the Secretary shall consider the criteria established under section 1505
of this title.''
Subsec. (h)(2). Pub. L. 107-295, Sec. 106(g), inserted ``and unless
prohibited by law,'' after ``Notwithstanding any other provision of this
chapter,''.
Subsec. (i)(4). Pub. L. 107-295, Sec. 106(c)(2), added par. (4).
1996--Subsec. (c)(3). Pub. L. 104-324 added par. (3).
1984--Subsec. (g). Pub. L. 98-419 substituted ``issued'' for
``issued, transferred, or renewed''.
Regulations
Pub. L. 107-295, title I, Sec. 106(e), Nov. 25, 2002, 116 Stat.
2087, provided that:
``(1) Agency and department expertise and responsibilities.--Not
later than 30 days after the date of the enactment of this Act [Nov. 25,
2002], the heads of Federal departments or agencies having expertise
concerning, or jurisdiction over, any aspect of the construction or
operation of deepwater ports for natural gas shall transmit to the
Secretary of Transportation written comments as to such expertise or
statutory responsibilities pursuant to the Deepwater Port Act of 1974
(33 U.S.C. 1501 et seq.) or any other Federal law.
``(2) Interim final rule.--The Secretary may issue an interim final
rule as a temporary regulation implementing this section [amending this
section and sections 1501 to 1503, 1507, and 1520 of this title]
(including the amendments made by this section) as soon as practicable
after the date of enactment of this section, without regard to the
provisions of chapter 5 of title 5, United States Code.
``(3) Final rules.--As soon as practicable after the date of the
enactment of this Act, the Secretary of Transportation shall issue
additional final rules that, in the discretion of the Secretary, are
determined to be necessary under the Deepwater Port Act of 1974 (33
U.S.C. 1501 et seq.) for the application and issuance of licenses for a
deepwater port for natural gas.''
Section Referred to in Other Sections
This section is referred to in sections 1503, 1505, 1508, 1509, 1513
of this title.
