33 C.F.R. § 127.009

Letter of recommendation

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(a) After the COTP receives the information and analyses required by § 127.007 or § 127.008, the COTP issues a Letter of Recommendation (LOR) as to the suitability of the waterway for LNG or LHG marine traffic or the operational safety and security of the LNG fuel facility 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 § 127.007 or § 127.008;

(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 facility such 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 § 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 § 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 § 127.015.

[USCG-2011-0227, 77 FR 70890, Nov. 28, 2012, as amended by USCG-2019-0444, 87 FR 5690, Feb. 2, 2022]

Notes of Decisions

Cited in 3 cases, 2007–2014 · leading case: Columbia Riverkeeper v. United States Coast Guard, 761 F.3d 1084 (9th Cir. 2014).

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Columbia Riverkeeper v. United States Coast Guard, 761 F.3d 1084 (9th Cir. 2014). · cites it 4× “5, 1988) (proposed 33 C.F.R. § 127.009 ). Beginning in the 1990s, there was a rapid increase in efforts to site LNG import terminals.”

City of Fall River v. Fed. Energy Regulatory Comm'n, 507 F.3d 1 (1st Cir. 2007). “(citing 33 C.F.R. § 127.009 (2005)). 7 . According to FERC’s conditional permit, approval was granted conditional to the DOI's evaluation that "the project would not have a substantial adverse effect on the Taun-ton River’s potential designation as a Wild and Scenic River…”

Weaver's Cove Energy, LLC v. State of Rhode Island Dep't of Env't Mgmt., 524 F.3d 1330 (D.C. Cir. 2008). “See 33 C.F.R. § 127.009 . Under § 401(a)(1) of the CWA, 33 U.”

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