CG Publishes LNG-LHG Letter of Recommendation NPRM

Today the Coast Guard published a notice of proposed rulemaking (NPRM) in the Federal Register (76 FR 78188-78193) clarifying procedures for seeking reconsideration of a Captain of the Port’s Letter of Recommendation (LOR) regarding the suitability of a waterway for liquefied natural gas (LNG) or liquefied hazardous gas (LHG) marine traffic. The rulemaking also clarifies the role and purpose of the LOR.

Purpose and Role of LOR

The current rules for the LOR process were revised last year (75 FR 29420). Since then several LOR’s have included statements that the recipient could request a reconsideration of the LOR using procedures outlined in 33 CFR 127.015. Since these procedures were designed to be used to appeal an ‘agency action’ by the Coast Guard, the implication was that the LOR was an ‘action’ or ‘final agency action’ under 5 U.S.C. 551 et seq.

The Coast Guard does not have the authority to approve or disapprove an LNG/LHG facility siting, construction or start-up they are not able to take an ‘action’ or ‘final action’ on such actions at a waterside LNG/LHG facility. The LOR is simply an advisory action taken by the Coast Guard to assist the authorized ‘jurisdictional agency’ in making their decision.

In formulating this NPRM the Coast Guard considered the elimination of the reconsideration process for LORs as it is not required by statute. The preamble notes, instead that “consistency and governmental transparency are best served if a defined set of stakeholders has the ability to ask the Coast Guard to reconsider its recommendation” so it decided to retain and revise the process, but put it in a separate section (§127.010) and add clarifying language to the description of the purpose and scope of the LOR in §127.009 and added clarifying language as to what issues the COPT or District Commander could potentially include in their reconsideration.

Procedure

The process would be started with a request to the COPT explaining why the LOR should be reconsidered, outlining the specific “waterway safety and security topics set forth in §§ 127.007 and 127.009”. A copy would also be sent to the jurisdictional agency by the requestor. The COPT would look at the issues raised and either confirm the current LOR or issue a revised LOR.

If the requestor disagreed with the COPT’s reconsideration decision a second request for reconsideration could be submitted to the District Commander for that port. No other ‘appeals’ are provided for in this process.

There are no time limits for the submission of requests for reconsideration or for the Coast Guard’s response to such requests. The NPRM does note that the Coast Guard does not “expect to continue to reconsider an LOR after the jurisdictional agency has reached its decision”, even if a reconsideration is in progress.

Public Comments

Public comments on this NPRM are being solicited. Comments may be filed via the Federal eRulemaking Portal (www.regulations.gov; Docket #  USCG-2011-0227). Comments must be filed by March 15^th, 2012.