1625-0096 Stat/Authority

§ 1504

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

read as follows: ‘‘The Secretary may amend, transfer,
or reinstate a license issued under this chapter if the
amendment, transfer, or reinstatement is consistent
with the findings made at the time the license was issued.’’
1990—Subsec. (c)(1). Pub. L. 101–380 substituted ‘‘section 2716 of this title’’ for ‘‘section 1517(l) of this title;’’.
1984—Subsec. (b). Pub. L. 98–419, § 2(b), substituted
provisions authorizing the Secretary, on application, to
issue a license for the ownership, construction, and operation of a deepwater port and, on petition of the licensee, to amend, transfer, or reinstate a license issued
under this chapter for provisions which had authorized
the Secretary, upon application and in accordance with
the provisions of this chapter, to issue, transfer,
amend, or renew a license for the ownership, construction, and operation of a deepwater port.
Subsec. (e)(1). Pub. L. 98–419, § 2(e), inserted provision
that on petition of a licensee, the Secretary shall review any condition of a license issued under this chapter to determine if that condition is uniform, insofar as
practicable, with the conditions of other licenses issued
under this chapter and is reasonable, and necessary to
meet the objectives of this chapter, and that the Secretary shall amend or rescind any condition that is no
longer necessary or otherwise required by any Federal
department or agency under this chapter.
Subsec. (f). Pub. L. 98–419, § 2(c), substituted provisions authorizing the Secretary to amend, transfer, or
reinstate a license issued under this chapter if the
amendment, transfer, or reinstatement is consistent
with the findings made at the time the license was issued for provisions which had authorized the Secretary
to transfer such licenses if the Secretary determined
that such transfer was in the public interest and that
the transferee met the requirements of this chapter and
the prerequisites to issuance under subsec. (c) of this
section.
Subsec. (h). Pub. L. 98–419, § 2(d), substituted provision that a license issued under this chapter remain in
effect unless suspended or revoked by the Secretary or
until surrendered by the licensee for provisions which
had limited the terms of licenses to not more than 20
years and which had granted each licensee a preferential right of renewal for not more than 10 years,
subject to subsec. (c), upon such conditions and for
such term as determined by the Secretary to be reasonable and appropriate.
EFFECTIVE DATE OF 1990 AMENDMENT
Amendment by Pub. L. 101–380 applicable to incidents
occurring after Aug. 18, 1990, see section 1020 of Pub. L.
101–380, set out as an Effective Date note under section
2701 of this title.
TRANSFER OF FUNCTIONS
For transfer of authorities, functions, personnel, and
assets of the Coast Guard, including the authorities
and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security,
and for treatment of related references, see sections
468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set
out as a note under section 542 of Title 6.
LNG TANKERS
Pub. L. 109–241, title III, § 304(a), July 11, 2006, 120
Stat. 527, provided that: ‘‘The Secretary of Transportation shall develop and implement a program to promote the transportation of liquefied natural gas to the
United States on United States flag vessels.’’

§ 1504. Procedure
(a) Regulations; issuance, amendment, or rescission; scope
The Secretary shall, as soon as practicable
after January 3, 1975, and after consultation

Page 532

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;

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

(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) the nation of registry for, and the nationality or citizenship of officers and crew
serving on board, vessels transporting natural
gas that are reasonably anticipated to be servicing the deepwater port;
(L) 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
(M) 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.

§ 1504

(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.

§ 1504

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

(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.

Page 534

(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)

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

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, § 5, Jan. 3, 1975, 88 Stat. 2131; Pub.
L. 98–419, § 2(f), Sept. 25, 1984, 98 Stat. 1607; Pub.
L. 104–324, title V, § 505, Oct. 19, 1996, 110 Stat.
3927; Pub. L. 107–295, title I, § 106(c), (f), (g), Nov.
25, 2002, 116 Stat. 2086–2088; Pub. L. 109–241, title
III, § 304(c)(1), July 11, 2006, 120 Stat. 527; Pub. L.
111–281, title IX, § 903(d), Oct. 15, 2010, 124 Stat.
3011.)
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 (§ 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
2010—Subsec. (c)(2)(K). Pub. L. 111–281 realigned margin.
2006—Subsec. (c)(2)(K) to (M). Pub. L. 109–241 added
subpar. (K) and redesignated former subpars. (K) and
(L) as (L) and (M), respectively.
2002—Subsec. (d)(4). Pub. L. 107–295, § 106(c)(1), added
par. (4).
Subsec. (f). Pub. L. 107–295, § 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, § 106(g), inserted ‘‘and
unless prohibited by law,’’ after ‘‘Notwithstanding any
other provision of this chapter,’’.
Subsec. (i)(4). Pub. L. 107–295, § 106(c)(2), added par. (4).
1996—Subsec. (c)(3). Pub. L. 104–324 added par. (3).

§ 1505

1984—Subsec. (g). Pub. L. 98–419 substituted ‘‘issued’’
for ‘‘issued, transferred, or renewed’’.
REGULATIONS
Pub. L. 107–295, title I, § 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.’’
INFORMATION TO BE PROVIDED
Pub. L. 109–241, title III, § 304(c)(2), July 11, 2006, 120
Stat. 527, provided that: ‘‘When the Coast Guard is operating as a contributing agency in the Federal Energy
Regulatory Commission’s shoreside licensing process
for a liquefied natural gas or liquefied petroleum gas
terminal located on shore or within State seaward
boundaries, the Coast Guard shall provide to the Commission the information described in section 5(c)(2)(K)
of the Deepwater Port Act of 1974 (33 U.S.C.
1504(c)(2)(K)) with respect to vessels reasonably anticipated to be servicing that port.’’

§ 1505. Environmental review criteria
(a) Establishment; evaluation of proposed deepwater ports
The Secretary, in accordance with the recommendations of the Administrator of the Environmental Protection Agency and the Administrator of the National Oceanic and Atmospheric
Administration and after consultation with any
other Federal departments and agencies having
jurisdiction over any aspect of the construction
or operation of a deepwater port, shall establish,
as soon as practicable after January 3, 1975, environmental review criteria consistent with the
National Environmental Policy Act [42 U.S.C.
4321 et seq.]. Such criteria shall be used to
evaluate a deepwater port as proposed in an application, including—
(1) the effect on the marine environment;
(2) the effect on oceanographic currents and
wave patterns;
(3) the effect on alternate uses of the oceans
and navigable waters, such as scientific study,
fishing, and exploitation of other living and
nonliving resources;
(4) the potential dangers to a deepwater port
from waves, winds, weather, and geological
conditions, and the steps which can be taken
to protect against or minimize such dangers;
(5) effects of land-based developments related to deepwater port development;