15 C.F.R. Subpart H—Appeal to the Secretary for Review Related to the Objectives of the Act and National Security Interests
Title 15 - Commerce and Foreign Trade
This subpart sets forth the procedures by which the Secretary may find that a federal license or permit activity, including those described in detail in an OCS plan, or a federal assistance activity, which a State agency has found to be inconsistent with the enforceable policies of the management program, may be federally approved because the activity is consistent with the objectives or purposes of the Act, or is necessary in the interest of national security. A federal license or permit activity, or a federal assistance activity, is “consistent with the objectives or purposes of the Act” if it satisfies each of the following three requirements: (a) The activity furthers the national interest as articulated in §302 or §303 of the Act, in a significant or substantial manner, (b) The national interest furthered by the activity outweighs the activity's adverse coastal effects, when those effects are considered separately or cumulatively. (c) There is no reasonable alternative available which would permit the activity to be conducted in a manner consistent with the enforceable policies of the management program. The Secretary may consider but is not limited to considering previous appeal decisions, alternatives described in state objection letters and alternatives and other information submitted during the appeal. The Secretary shall not consider an alternative unless the State agency submits a statement, in a brief or other supporting material, to the Secretary that the alternative would permit the activity to be conducted in a manner consistent with the enforceable policies of the management program. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 829, Jan. 5, 2006] A federal license or permit activity, or a federal assistance activity, is “necessary in the interest of national security” if a national defense or other national security interest would be significantly impaired were the activity not permitted to go forward as proposed. Secretarial review of national security issues shall be aided by information submitted by the Department of Defense or other interested Federal agencies. The views of such agencies, while not binding, shall be given considerable weight by the Secretary. The Secretary will seek information to determine whether the objected-to activity directly supports national defense or other essential national security objectives. (a) The “appellant” is the applicant, person or applicant agency submitting an appeal to the Secretary pursuant to this subpart. (b) For the purposes of this subpart, the “Federal agency” is the agency whose proposed issuance of a license or permit or grant of assistance is the subject of the appeal to the Secretary. (c) The term “energy project” means projects related to the siting, construction, expansion, or operation of any facility designed to explore, develop, produce, transmit or transport energy or energy resources that are subject to review by a coastal State under subparts D, E, F or I of this part. (d) The term “consolidated record” means the record of all decisions made or actions taken by the lead Federal permitting agency or by another Federal or State administrative agency or officer, maintained by the lead Federal permitting agency, with the cooperation of Federal and State administrative agencies, related to any federal authorization for the permitting, approval or other authorization of an energy project. (e) The term “lead Federal permitting agency” means the Federal agency required to: issue a federal license or permit under subparts D or I of this part; approve an OCS plan under subpart E of this part; or provide federal financial assistance under subparts F or I of this part for an energy project. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 829, Jan. 5, 2006] The first day of any period of time allowed or prescribed by these rules, shall not be included in the computation of the designated period of time. The last day of the time period computed shall be included unless it is a Saturday, Sunday or a Federal holiday, in which case the period runs until the next day which is not one of the aforementioned days. (a) To obtain Secretarial review of a State agency objection, the appellant shall file a notice of appeal with the Secretary within 30 days of receipt of a State agency objection. (b) The appellant's notice of appeal shall include a statement explaining the appellant's basis for appeal of the State agency's objection under §923.121 of this title, including any procedural arguments pursuant to §930.129(b). Bases for appeal (including procedural arguments) not identified in the appellant's notice of appeal shall not be considered by the Secretary. (c) The appellant's notice of appeal shall be accompanied by payment of an application fee or a request for a waiver of such fees. An appeal involving a project valued in excess of $1 million shall be considered a major appeal and the application fee is $500.00. All other appeals shall be considered minor appeals and the application fee is $200.00. (d) The appellant shall send the Notice of appeal to the Secretary, Herbert C. Hoover Building, 14th Street and Constitution Avenue, NW., Washington, DC 20230; a copy of the notice of appeal to the objecting State agency; and to the Assistant General Counsel for Ocean Services (GCOS), 1305 East West Highway, Room 6111 SSMC 4, Silver Spring, Maryland 20910. (e) No extension of time will be permitted for the filing of a notice of appeal. (f) The Secretary shall waive any or all fees if the Secretary concludes upon review of the appellant's fee waiver request that such fees impose an economic hardship on appellant. The request for a waiver and demonstration of economic hardship shall accompany the notice of appeal. If the Secretary denies a request for a waiver and the appellant wishes to continue with the appeal, the appellant shall submit the appropriate fees to the Secretary within 10 days of receipt of the Secretary's denial. If the fees are not received by the 10th day, then the Secretary shall dismiss the appeal. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 830, Jan. 5, 2006] The Secretary shall collect as a processing fee such other fees from the appellant as are necessary to recover the full costs of administering and processing appeals to the Secretary under section 307(c) of the Act. All processing fees shall be assessed and collected no later than 60 days after publication of the Federal Register Notice closing the decision record. Failure to submit processing fees shall be grounds for extending the time for issuance of a decision pursuant to section 319(a)(2) of the Act (16 USC 1465(a)(2)) and §930.130 of this subpart. (a) Within 30 days of submitting the notice of appeal, as specified in §930.125, the appellant shall submit to the Secretary its principal brief accompanied by the appendix described in paragraph (c) of this section. Within 60 days of the appellant's filing of the notice of appeal, the State agency shall submit to the Secretary its principal brief accompanied by a supplemental appendix, if any, described in paragraph (c) of this section. Not later than 20 days after appellant's receipt of the State agency's brief, appellant may submit to the Secretary a reply brief accompanied by a supplemental appendix, if any, described in paragraph (c) of this section. (b) A principal brief shall not exceed 30 double-spaced pages; appellant's reply brief shall not exceed 15 double-spaced pages. Any table of contents, table of citations, or certifications of mailing and/or service do not count toward the page limitations. (c) The appellant must prepare and file an appendix with its brief containing: (1) Its consistency certification; (2) The State agency's objection; and (3) All such supporting documentation and material as the appellant deems necessary for consideration by the Secretary. The State agency (or appellant on reply) shall cite to appellant's appendix or may file a supplemental appendix to include additional documentation and material as the State agency (or appellant on reply) deems necessary for consideration by the Secretary that was not included in appellant's appendix (or the State agency's supplemental appendix). The parties are encouraged to discuss the contents of appellant's appendix in order to include in the appendix as much of the supporting documentation and material as any party deems necessary for consideration by the Secretary. In an appeal for an energy project, supporting documentation and material shall be limited to the parts of the consolidated record described in paragraph (i)(1) of this section to which the appellant or the State agency wishes to direct the Secretary's attention. (d)(1) Both the appellant and State agency shall send four copies of their briefs and supporting materials to the Office of General Counsel for Ocean Services (GCOS), NOAA, 1305 East West Highway, Room 6111 SSMC4, Silver Spring, Maryland 20910. One copy must be in an electronic format compatible (to the extent practicable) with the website maintained by the Secretary to provide public information concerning appeals under the CZMA. (2) The appellant and State agency shall serve on each other at least one copy of their briefs, supporting materials, and all requests and communications submitted to the Secretary, at the same time that materials are submitted to the Secretary. (3) Each submission to the Secretary shall be accompanied by a certification of mailing and/or service on the other party. Service may be done by mail or hand delivery. Materials or briefs submitted to the Secretary not in compliance with this subpart may be disregarded and not entered into the Secretary's decision record of the appeal. (e)(1) The Secretary has broad authority to implement procedures governing the consistency appeal process to ensure efficiency and fairness to all parties. The appeal decision record is composed of the briefs and supporting materials submitted by the State agency and appellant, public comments and the comments, if any, submitted by interested Federal agencies. As noted in §930.128(c)(1), the Secretary gives deference to the views of interested Federal agencies when commenting in their areas of expertise and takes notice of relevant administrative decisions, including licenses or permits, related to an appellant's proposed activity when submitted to the appeal decision record. The Secretary determines the content of the appeal decision record. The Secretary may determine, on the Secretary's own initiative, that additional information is necessary to the Secretary's decision, including documents prepared by Federal agencies pursuant to the National Environmental Policy Act (42 U.S.C. 4321 et seq.) and the Endangered Species Act (16 U.S.C. 1531 et seq.), and may request such information. (2) To promote efficient use of time and resources, the Secretary may, upon the Secretary's own initiative, require the appellant and the State agency to submit briefs and supporting materials relevant only to procedural or jurisdictional issues presented in the Notice of Appeal or identified by the Secretary. Following a decision of the procedural or jurisdictional issues, the Secretary may require briefs on substantive issues raised by the appeal if necessary. (3) The Secretary may require the appellant and the State agency to submit briefs in addition to those described in paragraphs (a) and (e) of this section as necessary. (4) Any briefs not requested or required by the Secretary may be disregarded and not entered into the Secretary's decision record of the appeal. (f) The appellant bears the burden of submitting evidence in support of its appeal and the burden of persuasion. (g) The Secretary may extend the time for submission, and length, of briefs and supporting materials for good cause. (h) Where a State agency objection is based in whole or in part on a lack of information, the Secretary shall limit the record on appeal to information previously submitted to the State agency and relevant comments thereon, except as provided for in §930.129(b) and (c). (i) Appeal Decision Record for Energy Projects. The provisions of this paragraph apply only to appeals for energy projects. (1) The Secretary shall use the consolidated record maintained by the lead Federal permitting agency as the initial record for an appeal under this subpart for energy projects. (2) The appellant's notice of appeal required by §930.125(a) and (b) must be accompanied by four copies of the consolidated record maintained by the lead Federal permitting agency. One copy of the consolidated record must be in an electronic format compatible (to the extent practicable) with the website maintained by the Secretary to provide public information concerning appeals under the CZMA. Notwithstanding §930.125(e), the Secretary may extend the time for filing a notice of appeal in connection with an energy project for good cause shown to allow appellant additional time to prepare the consolidated record for filing. (3) The appellant and the State agency shall submit briefs as required by paragraphs (a), (b) and (c) of this section. (4) Supplemental information may be accepted and included in the decision record by the Secretary only as allowed by §930.130(a)(2). [71 FR 830, Jan. 5, 2006] (a) The Secretary shall provide public notice of the appeal within 30 days after the receipt of the Notice of Appeal by publishing a Notice in the (b) Except in the case of appeals involving energy projects, the Secretary shall provide a 30-day period for the public and interested Federal agencies to comment on the appeal. Notice of the public and Federal agency comment period shall be provided in the Notice required in paragraph (a) of this section. (c)(1) The Secretary shall accord greater weight to those Federal agencies whose comments are within the subject areas of their technical expertise. (2) The Secretary may, on the Secretary's own initiative or upon written request, for good cause shown, reopen the period for Federal agency comments before the closure of the decision record. (d) Except in the case of appeals involving energy projects, the Secretary may hold a public hearing in response to a request or on the Secretary's own initiative. A request for a public hearing must be filed with the Secretary within 30 days of the publication of the Notice in the [71 FR 831, Jan. 5, 2006] (a) The Secretary may dismiss an appeal for good cause. A dismissal is the final agency action. Good cause shall include, but is not limited to: (1) Failure of the appellant to submit a notice of appeal within the required 30-day period. (2) Failure of the appellant to submit a brief or supporting materials within the required period; (3) Failure of the appellant to pay a required fee; (4) Denial by the Federal agency of the federal license, permit or assistance application; or (5) Failure of the appellant to base the appeal on grounds that the proposed activity is either consistent with the objectives or purposes of the Act, or necessary in the interest of national security. (b) If the State agency's consistency objection is not in compliance with section 307 of the Act and the regulations contained in subparts D, E, F, or I of this part, the Secretary shall override the State's objection. The Secretary may make this determination as a threshold matter. (c) The Secretary may stay the processing of an appeal in accordance with §930.130. (d) The Secretary may remand an appeal to the State agency for reconsideration of the project's consistency with the enforceable policies of the State's management program if significant new information relevant to the State agency's objection, not previously provided to the State agency during its consistency review, is submitted to the Secretary. The Secretary shall determine a time period for the remand to the State agency. The time period for remand must be completed within the period described in §930.130 for the development of the Secretary's decision record. If the State agency responds that it still objects to the activity, then the Secretary shall continue to process the appeal. If the State agency concurs that the activity is consistent with the enforceable policies of the State's management program, then the Secretary shall declare the appeal moot and notify the Federal agency that the activity may be federally approved. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 831, Jan. 5, 2006] (a)(1) With the exception of paragraph (a)(2) of this section, the Secretary shall close the decision record not later than 160 days after the date that the Secretary's Notice of Appeal is published in the (2) The Secretary may stay the closing of the decision record during the 160-day period described in paragraph (a)(1) of this section: (i) For a specific period mutually agreed to in writing by the appellant and the State agency; or (ii) As the Secretary determines necessary to receive, on an expedited basis: (A) Any supplemental information specifically requested by the Secretary to complete a consistency review under the Act; or (B) Any clarifying information submitted by a party to the proceeding related to information in the consolidated record compiled by the lead Federal permitting agency. (3) The Secretary may only stay the 160-day period described in paragraph (a)(1) of this section for a period not to exceed 60 days. (b) Not later than 60 days after the date of publication of a (c) The decision of the Secretary shall constitute final agency action for the purposes of the Administrative Procedure Act. (d) In reviewing an appeal, the Secretary shall find that a proposed federal license or permit activity, or a federal assistance activity, is consistent with the objectives or purposes of the Act, or is necessary in the interest of national security, when the information in the decision record supports this conclusion. (e)(1) If the Secretary finds that the proposed activity is consistent with the objectives or purposes of the Act, or is necessary in the interest of national security, the Federal agency may approve the activity. (2) If the Secretary does not make either of these findings, the Federal agency shall not approve the activity. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 831, Jan. 5, 2006] (a) The Secretary may, on her own initiative, choose to consider whether a federal license or permit activity, or a federal assistance activity, is consistent with the objectives or purposes of the Act, or is necessary in the interest of national security. Secretarial review shall only be initiated after the completion of State agency review pursuant to the relevant subpart. The Secretary's decision to review the activity may result from an independent concern regarding the activity or a request from interested parties. If the Secretary decides to initiate review, notification shall be sent to the applicant, person or applicant agency, and to the relevant Federal and State agencies. The notice shall include a statement describing the reasons for the review. (b) With the exception of application and processing fees, all other provisions under this subpart governing the processing and administering of appeals will apply to Secretarial reviews initiated under this section.
Title 15: Commerce and Foreign Trade
PART 930—FEDERAL CONSISTENCY WITH APPROVED COASTAL MANAGEMENT PROGRAMS
Subpart H—Appeal to the Secretary for Review Related to the Objectives of the Act and National Security Interests
§ 930.120 Objectives.
§ 930.121 Consistent with the objectives or purposes of the Act.
§ 930.122 Necessary in the interest of national security.
§ 930.123 Definitions.
§ 930.124 Computation of time.
§ 930.125 Notice of appeal and application fee to the Secretary.
§ 930.126 Consistency appeal processing fees.
§ 930.127 Briefs and supporting materials.
§ 930.128 Public notice, comment period, and public hearing.
§ 930.129 Dismissal, remand, stay, and procedural override.
§ 930.130 Closure of the decision record and issuance of decision.
§ 930.131 Review initiated by the Secretary.
