33 C.F.R. Subpart C—Processing Applications
Title 33 - Navigation and Navigable Waters
This subpart prescribes the requirements for processing an application for a deepwater port license. It includes the procedures for maintaining the docket, designating adjacent coastal States, holding informal and formal public hearings, and approving or denying an application. (a) The Commandant (G-M) maintains the docket for each application. (b) The docket contains a copy of all documents filed or issued as part of the application process. (c) Recommendations submitted by Federal departments and agencies under 33 U.S.C. 1504(e)(2) are docketed when they are received. Copies of applicable NEPA documents prepared under 33 U.S.C. 1504(f) are docketed when they are sent to the Environmental Protection Agency. (d) For a document designated as protected from disclosure under 33 U.S.C. 1513(b), the Commandant (G-M): (1) Prevents the information in the document from being disclosed, unless the Commandant (G-M) states that the disclosure is not inconsistent with 33 U.S.C. 1513(b); and (2) Keeps a record of all individuals who have a copy of the document. (a) All material in a docket under §148.205 is available to the public for inspection and copying at Commandant (G-M) at the address under “Commandant (G-M)” in §148.5, except for: (1) Contracts under 33 U.S.C. 1504(c)(2)(B) for the construction or operation of a deepwater port; and (2) Material designated under paragraph (b) of this section as a trade secret or commercial or financial information that is claimed to be privileged or confidential. (b) A person submitting material that contains either a trade secret or commercial or financial information under paragraph (a)(2) of this section must designate those portions of the material that are privileged or confidential. Section 148.221 contains procedures for objecting to these claims. The Commandant (G-M) processes each application and publishes the notice of application under 33 U.S.C. 1504(c) in the (a) Each Federal agency with jurisdiction over any aspect of ownership, construction, or operation of deepwater ports. These include the Environmental Protection Agency, the Departments of Commerce, Defense, Energy, Interior and State, and relevant State environmental and natural resources protection agencies. (b) Each adjacent coastal State. If at any time before the Secretary approves or denies an application, the information in it changes or becomes incomplete, the applicant must promptly submit the changes or additional information in the manner set forth in 148.115 of this part. The applicant may withdraw an application at any time before the proceeding is terminated by delivering or mailing notice of withdrawal to the Commandant (G-M) for docketing. If a port of a State that will be directly connected by pipeline with a proposed deepwater port has existing plans for a deep draft channel and harbor, a representative of the port may request a determination under 33 U.S.C. 1503(d). The request must be sent, in writing, to Commandant (G-M) within 30 days after the date that the notice of application for the deepwater port is published in the (a) Signature of the highest official of the port submitting the request; (b) A copy of the existing plans for the construction of a deep draft channel and harbor; (c) Certification that the port has an active study by the Secretary of the Army for the construction of a deep draft channel and harbor or that the port has pending an application for a permit under 33 U.S.C. 403 for the construction; (d) Any available documentation on: (1) Initial costs (by phases, if development is staged) for the proposed onshore project, including dredging, ship terminal, and attendant facilities; (2) Estimated annual operating expenses (by phases, if development is staged), including labor, for 30 years for all elements of the project; (3) Estimated time of completion of all elements of the project; (4) Estimated volume of ship traffic and volume and variety of the tonnage; (5) Potential traffic congestion conditions in the port and the port's capability to control vessel traffic as a result of the proposed dredging project; (6) Estimated economic benefits of the project, including: (i) Economic contribution to the local and regional area; (ii) Induced industrial development; (iii) Increased employment; and (iv) Increases in tax revenues; (7) Environmental and social impact of the project on elements of the local and regional community; and (8) An estimate of the economic impact that granting a deepwater port license will have on the proposed project. (e) A statement whether the port seeks a determination that the port best serves the national interest. (a) Adjacent coastal States are named in the notice of application published in the (b) The request must: (1) Be submitted in writing to the Commandant (G-M) within 14 days after the date of publication of the notice of application in the (2) Be signed by the Governor of the State; (3) List the facts and any available documentation or analyses concerning the risk of damage to the coastal environment of the State; and (4) State why the State believes the risk of damage to its coastal environment is equal to or greater than the risk to a State connected by a pipeline to the proposed deepwater port. (c) Upon receipt of a request, the Commandant (G-M) sends a copy of the State's request to the Administrator of the National Oceanic and Atmospheric Administration (NOAA) and asks for the Administrator's recommendations within an amount of time that will allow the Commandant (G-M) 45 days from receipt of the request to determine the matter. (d) If after receiving NOAA's recommendations, the Commandant (G-M) determines that the State should be considered as an adjacent coastal State, the Commandant (G-M) designates it as an adjacent coastal State. If the Commandant (G-M) denies the request, the Commandant (G-M) notifies the Governor of the requesting State of the denial. (a) Persons required to furnish information under this part may assert a claim of privilege or immunity as grounds for relief from the requirement. The claim must be submitted in writing to the Commandant (G-M). (b) If the claim concerns a document protected from disclosure under 33 U.S.C. 1513(b), the document must be placed in a sealed envelope with the name of the person claiming the protection, the applicant's name, the date or anticipated date of the application, and a brief statement of the basis of the claim. If a number of documents are involved, they must be grouped according to the nature of the claim and both the documents and their envelopes must be numbered using a self-explanatory numbering system. (c) If the claim concerns the attorney-client privilege, the claim must identify the communication by date, type, persons making and receiving it, and general subject matter. If the required information is in a separable part of a communication, such as an attachment to a letter, the separate part must be identified the same way as the communication. The identification must be filed with the Commandant (G-M). (d) A Federal or State agency, the applicant, an affiliate of the applicant, or other interested person may object to a claim. The objection must be in writing, must include a brief statement of the basis for the objection, and must identify the document to which the claim applies. (e) Commandant (G-M) determines issues raised by claims filed under this section and may specify procedures to be used to resolve the issues. Any person may submit recommendations to the Commandant (G-M) as to the procedures to be used. (f) The presiding officer at any formal or informal hearing may allow claims or objections that could be filed under this section to be made and may issue a decision or refer the matter to the Commandant (G-M). (g) The filing of a claim under this section, other than a claim under paragraph (b) of this section, stays the time for meeting any deadline for submitting information related to an issue raised in a claim or objection. However, the filing of a claim does not stay the periods for processing and reviewing applications, unless the Commandant (G-M) determines that compliance with the requirement is material to the processing of the application within the required time. If the Commandant (G-M) determines that the information is material, the Commandant (G-M) may suspend the processing of the application. The period of suspension is not counted toward the time limits in 33 U.S.C. 1503(c)(6), 1504(d)(3), (e)(2), and (g), and 1508(b)(1).
Title 33: Navigation and Navigable Waters
PART 148—DEEPWATER PORTS: GENERAL
Subpart C—Processing Applications
General
§ 148.200 What is the purpose of this subpart?
§ 148.205 How are documents related to the application maintained?
§ 148.207 How and where can I view docketed documents?
§ 148.209 How is the application processed?
§ 148.211 What must I do if I need to change my application?
§ 148.213 How do I withdraw my application?
§ 148.215 What if a port has plans for a deep draft channel and harbor?
§ 148.217 How can a State be designated as an adjacent coastal State?
§ 148.221 What must I do to make a claim or object to a claim?
Public Meetings
§ 148.222 When must public meetings be held?
(a) Before a license is issued, at least one public meeting under 33 U.S.C. 1504(g) must be held in each adjacent coastal State.
(b) The Commandant (G-M), in coordination with the Administrator of the Maritime Administration, shall publish a notice of public meetings in the
(c) Anyone may attend the public meeting(s) and provide oral or written information. The presiding officer may limit the time for providing oral information.
§ 148.227 How is a public meeting reported?
(a) After completion of a meeting, the presiding officer forwards a report on the hearing to the Commandant (G-M) for docketing.
(b) The report contains at least:
(1) An overview of the factual issues addressed;
(2) A transcript or recording of the meeting; and
(3) A copy of all material submitted to the presiding officer.
(c) During the hearing, the presiding officer announces the information that the report must contain.
Formal Hearings
§ 148.228 What if a formal evidentiary hearing is necessary?
(a) After all public meetings under 148.222 are concluded, the Commandant (G-MSO), in coordination with the Administrator of the Maritime Administration, considers whether there are one or more specific and material factual issues that may be resolved by a formal evidentiary hearing.
(b) If the Commandant (G-M), in coordination with the Administrator of the Maritime Administration, determines that one or more issues under paragraph (a) of this section exist, the Coast Guard will hold at least one formal evidentiary hearing under 5 U.S.C. 554 in the District of Columbia.
(c) The Commandant (G-MSO) files a request for assignment of an administrative law judge (ALJ) with the ALJ Docketing Center. The Chief Administrative Law Judge designates an ALJ or other person to conduct the hearing.
(d) The recommended findings and the record developed in a hearing under paragraph (b) of this section are considered by the Administrator of the Maritime Administration in deciding whether to approve or deny a license.
§ 148.230 How is notice of a formal hearing given?
(a) The Commandant (G-M) publishes a notice of the hearing in the
(b) The notice of the hearing includes the applicant's name, the name of the ALJ assigned to conduct the hearing, a list of the factual issues to be resolved, the address of the place where documents are to be filed, and the address where a copy of the rules of practice, procedure, and evidence to be used at the hearing is available.
§ 148.232 What are the rules for a formal hearing?
(a) The Commandant (G-M) determines the rules for each formal hearing. Unless otherwise specified in this part, the Commandant (G-M) applies the rules of practice, procedure, and evidence in part 20 of this chapter.
(b) The Commandant (G-M) sends a written copy of the procedure to the applicant, each person intervening in the proceedings, and each person who requests a copy.
§ 148.234 What are the limits of an administrative law judge's jurisdiction?
(a) An ALJ's jurisdiction begins upon assignment to a proceeding.
(b) An ALJ's jurisdiction ends after the recommended findings are filed with the Commandant (G-M) or immediately after the ALJ issues a notice of withdrawal from the proceeding.
§ 148.236 What authority does an administrative law judge have?
When assigned to a formal hearing, an ALJ may:
(a) Administer oaths and affirmations;
(b) Issue subpoenas;
(c) Issue rules of procedure for written evidence;
(d) Rule on offers of proof and receive evidence;
(e) Examine witnesses;
(f) Rule on motions of the parties;
(g) Suspend or bar an attorney from representing a person in the proceeding for unsuitable conduct;
(h) Exclude any person for disruptive behavior during the hearing;
(i) Set the hearing schedule;
(j) Certify questions to the Commandant (G-M);
(k) Proceed with a scheduled session of the hearing in the absence of a party who has failed to appear;
(l) Extend or shorten a non-statutorily imposed deadline under this subpart within the 240 day time limit for the completion of public hearings in 33 U.S.C. 1504(g);
(m) Set deadlines not specified in this subpart or the Act; and
(n) Take any other action authorized by or consistent with this subpart, the Act, or 5 U.S.C. 551–559.
§ 148.238 Who are the parties to a formal hearing?
The parties to a formal hearing are:
(a) The applicant;
(b) The Commandant (G-M); and
(c) Any person intervening in the proceedings.
§ 148.240 How does a State or a person intervene in a formal hearing?
(a) Any person or adjacent coastal State may intervene in a formal hearing.
(b) A person must file a petition of intervention within 10 days after notice of the formal hearing is issued. The petition must:
(1) Be addressed to the ALJ Docketing Center;
(2) Identify the issues and the petitioner's interest in those issues; and
(3) Designate the name and address of a person who can be served if the petition is granted.
(c) An adjacent coastal State need only file a notice of intervention with the ALJ Docketing Center.
(d) The ALJ has the authority to limit the scope and period of intervention during the proceeding.
(e) If the ALJ denies a petition of intervention, the petitioner may file a notice of appeal with the ALJ Docketing Center within 7 days of the denial. A brief may be submitted with the notice of appeal. Parties who wish to file a brief in support of or against the notice of appeal may do so within 7 days of the filing of the notice.
(f) The Commandant (G-M) will rule on the appeal. The ALJ does not have to delay the proceedings for intervention appeals.
§ 148.242 How does a person who is not a party to a formal hearing present evidence at the hearing?
(a) For a person who is not a party to a formal hearing to present evidence at the hearing, the person must send a petition to present evidence to the ALJ Docketing Center before the beginning of the formal hearing. The petition must describe the evidence that the person will present and show its relevance to the issues listed in the notice of formal hearing.
(b) If a petition is granted, the ruling will specify which evidence is approved to be presented at the hearing.
§ 148.244 Who must represent the parties at a formal hearing?
(a) All organizations that are parties to the proceeding must be represented by an attorney. Individuals may represent themselves.
(b) Any attorney representing a party to the proceeding must file a notice of appearance according to §20.301(b) of this chapter.
(c) Each attorney must be in good standing and licensed to practice before a court of the United States or the highest court of any State, territory, or possession of the United States.
§ 148.246 When is a document considered filed and where must it be filed?
(a) If a document to be filed is submitted by mail, it is considered filed on the date it is postmarked. If a document is submitted by hand delivery or electronically, it is considered filed on the date received by the clerk.
(b) File all documents and other materials related to an administrative proceeding at the U.S. Coast Guard Administrative Law Center, Attention: Hearing Docket Clerk, room 412, 40 South Gay Street, Baltimore, MD, 21201–4022.
§ 148.248 What happens when a document does not contain all necessary information?
Any document that does not satisfy the requirements in §§20.303 and 20.304 of this chapter will be returned to the person who submitted it with a statement of the reasons for denial.
§ 148.250 Who must be served before a document is filed?
Before a document may be filed by any party, it first must be served upon:
(a) All other parties; and
(b) The Commandant (G-M).
§ 148.252 What is the procedure for having a subpoena served?
(a) A party may submit a request for a subpoena to the ALJ. The request must show the relevance and scope of the evidence sought.
(b) Requests should be submitted sufficiently in advance of the hearing so that exhibits and witnesses can be included in the lists required by §20.601 of this chapter but may be submitted later before the end of the hearing if good cause is shown for the late submission.
(c) A request for a subpoena must be submitted to the ALJ.
(d) A proposed subpoena, such as the form in http://cgweb.comdt.uscg.mil/g-cj/subpoena.doc, must be submitted with the request. If you do not use this form, the proposed subpoena must contain:
(1) The docket number of the proceedings;
(2) The captions “Department of Homeland Security,” “Coast Guard,” and “Licensing of deepwater port for coastal waters off (insert name of the coastal State closest to the proposed deepwater port and the docket number of the proceeding)”;
(3) The name and the address of the office of the ALJ;
(4) For a subpoena to give testimony, a statement commanding the person to whom the subpoena is directed to attend the formal hearing and give testimony;
(5) For a subpoena to produce documentary evidence, a statement commanding the person to produce designated documents, books, papers, or other tangible things at a designated time or place; and
(6) An explanation of the procedure in §20.309(d) of this chapter and paragraph (h) of this section for quashing a subpoena.
(e) The procedure for serving a subpoena must follow rule 45 of the Federal Rules of Civil Procedure, unless the ALJ authorizes another procedure.
(f) The witness fees for a subpoenaed witness are the same as the fees for witnesses subpoenaed in U.S. District Courts. The person requesting the subpoena must pay these fees.
(g) When serving a subpoena, a party must include witness fees in the form of a check to the individual or organization for one day plus mileage or, in the case of a government-issued subpoena, a form SF–1157 for reimbursement for witness fees and mileage.
(h) Any person served with a subpoena has 10 days from the time of service to move to quash the subpoena.
(i) If a person does not comply with a subpoena, the ALJ decides whether judicial enforcement of the subpoena is necessary. If the ALJ decides it is, the Commandant (G-M) reviews this decision.
§ 148.254 How is a transcript of the hearing prepared?
(a) Under the supervision of the ALJ, the reporter prepares a verbatim transcript of the hearing. Nothing may be deleted from the transcript, unless ordered by the ALJ and noted in the transcript.
(b) After a formal hearing is completed, the ALJ certifies and forwards the record, including the transcript, to the clerk to be placed into the docket.
(c) At any time within the 20 days after the record is docketed, the ALJ may make corrections to the certified transcript. When corrections are filed, they are attached as appendices.
(d) Any motion to correct the record must be submitted within 10 days after the record is docketed.
§ 148.256 What happens at the conclusion of a formal hearing?
After closing the record of a formal hearing, the ALJ prepares a recommended finding on the issues that were the subject of the hearing. The ALJ submits that finding to the Commandant (G-M).
Approval or Denial of the Application
§ 148.276 When must the application be approved or denied?
(a) In 33 U.S.C. 1504, the Deepwater Port Act provides strict timelines for action on a license application, which if closely observed can lead to action in just under 1 year. The Coast Guard can recommend that MARAD suspend the process if an applicant fails to provide timely information or requests additional time to comply with a request.
(b) The Coast Guard must conduct public hearings in each adjacent Coastal State within 240 days of publication of the notice of receipt of a deepwater port application.
(c) An application must be approved or denied within 90 days after the close of the public hearing period specified in paragraph (b) of this section.
§ 148.277 How may Federal agencies and States participate in the application process?
(a) Under §148.209, Federal agencies and adjacent coastal States are sent copies of the application. The agencies and States are encouraged to begin submitting their comments at that time.
(b) To be considered, comments from Federal agencies and adjacent coastal States must be received by the Commandant (G-M) within 45 days after the close of the public hearing period specified in §148.276(b). Separate comment periods will apply to the review of documents created during the NEPA process. Both Commandant (G-M) and MARAD review the comments received.
(c) Comments should identify problems, if any, and suggest possible solutions.
§ 148.279 What are the criteria for approval or denial of an application?
The criteria for approving or denying a license application appear in 33 U.S.C. 1503.
§ 148.281 What happens when more than one application is submitted for an oil deepwater port for the same application area?
(a) When more than one application is submitted for an oil deepwater port for the same application area under 33 U.S.C. 1504(d), only one application is approved. Except as provided in paragraph (b) of this section, applicants receive priority in the following order:
(1) An adjacent coastal State (or combination of States), political subdivision of the State, or an agency or instrumentality, including a wholly owned corporation of the State;
(2) A person that is:
(i) Not engaged in producing, refining, or marketing oil;
(ii) Not an affiliate of a person engaged in producing, refining, or marketing oil; or
(iii) Not an affiliate of an affiliate of a person engaged in producing, refining, or marketing oil; and then
(3) Any other applicant.
(b) MARAD may also approve one of the proposed deepwater ports if it determines that that port will best serve the national interest. In making this determination, MARAD considers:
(1) The degree to which each deepwater port will affect the environment, as determined under the review criteria in subpart G to this part;
(2) The differences between the anticipated completion dates of the deepwater ports; and
(3) The differences in costs for construction and operation of the ports that would be passed on to consumers of oil.
(c) This section does not apply to applications for natural gas deepwater ports.
§ 148.283 When is the application process stopped before the application is approved or denied?
The Commandant (G-M) recommends to MARAD that the application process be suspended before the application is approved or denied if:
(a) All applications are withdrawn before MARAD approves one of them; or
(b) There is only one application; it is incomplete, and the applicant does not respond to a request by the Commandant (G-M) for further information, as per §148.107.
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