77124 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

DEPARTMENT OF COMMERCE

NATIONAL OCEANIC AND

ATMOSPHERIC ADMINISTRATION

15 CFR Part 930

[Docket No. 990723202–0338–02]

RIN 0648–AM88

Coastal Zone Management Act Federal

Consistency Regulations

AGENCY: Office of Ocean and Coastal

Resource Management (OCRM),

National Ocean Service (NOS), National

Oceanic and Atmospheric

Administration (NOAA), Department of

Commerce (DOC).

ACTION: Final rule.

SUMMARY: The National Oceanic and

Atmospheric Administration (NOAA)

revises the regulations implementing

the federal consistency provision of the

Coastal Zone Management Act of 1972

(CZMA). The Coastal Zone Act

Reauthorization Amendments of 1990,

enacted November 5, 1990, as well as

the Coastal Zone Protection Act of 1996,

enacted June 3, 1996, amended and

reauthorized the CZMA. Among the

amendments were revisions to the

federal consistency requirement

contained in section 307 of the CZMA.

Current federal consistency regulations

were promulgated in 1979 and are in

need of revision after 20 years of

implementation. The purpose of this

final rule is to make such revisions.

DATES: Effective January 8, 2001.

FOR FURTHER INFORMATION CONTACT:

David W. Kaiser, Federal Consistency

Coordinator, Office of Ocean and

Coastal Resource Management (N/

ORM3), 1305 East-West Highway, 11th

Floor, Silver Spring, MD 20910.

Telephone: 301–713–3155, extension

144.

SUPPLEMENTARY INFORMATION:

I. Authority

This final rule is issued under the

authority of the CZMA, 16 USC 1451 et

seq.

II. Background

The following terms are defined for

the purpose of this preamble:

The term ‘‘management program’’

means the objectives, policies and other

requirements of a State coastal

management program that has been

federally approved by NOAA, pursuant

to CZMA § 306.

The term ‘‘State agency’’ means the

designated federal consistency agency

for a particular management program.

The term ‘‘consistency

determination’’ means the

determination provided by a Federal

agency to a State agency for a Federal

agency activity under CZMA § 307(c)(1)

that the Federal agency determines will

have reasonably foreseeable effects on

any land or water use or natural

resource of a State’s coastal zone (such

effects are also referred to as ‘‘coastal

effects’’ or ‘‘effects on any coastal use or

resource’’).

The term ‘‘negative determination’’

means the determination provided by a

Federal agency to a State agency for a

Federal agency activity under CZMA

§ 307(c)(1) that the Federal agency

determines will not have reasonably

foreseeable coastal effects.

The term ‘‘consistency certification’’

means the certification provided by an

applicant for a federal approval under

CZMA § (c)(3) or a State agency’s or

local government’s certification under

CZMA § 307(d).

The term ‘‘concurrence’’ means a

State agency’s approval of a consistency

determination, negative determination,

or consistency certification.

The term ‘‘objection’’ means a State

agency’s disagreement/disapproval of a

consistency determination, negative

determination, or consistency

certification.

The term ‘‘enforceable policy’’ means

a policy that is legally binding under

State law and is part of that State’s

management program.

The term ‘‘maximum extent

practicable’’ means that Federal

agencies must conduct their activities

under CZMA § 307(c)(1) in a manner

that is fully consistent with the

enforceable policies of a management

program, unless prohibited from full

consistency by the requirements of

federal law applicable to the activity.

The CZMA was enacted to develop a

national coastal management program

that comprehensively manages and

balances competing uses of and impacts

to any coastal use or resource. The

national coastal management program is

implemented by individual State

management programs in partnership

with the Federal Government. The

CZMA federal consistency requirement,

CZMA § 307, requires that Federal

agency activities be consistent to the

maximum extent practicable with the

enforceable policies of a management

program. The federal consistency

requirement also requires that nonfederal activities requiring federal

permits, licenses or that receive federal

financial assistance, be fully consistent

with a State’s federally approved

management program. The federal

consistency requirement is an important

mechanism to address coastal effects, to

ensure federal consideration of State

management programs, and to avoid

conflicts between States and Federal

agencies by fostering early consultation

and coordination.

Congress strongly re-emphasized the

importance of consistency in the CZMA

amendments of 1990 and specifically

endorsed long-standing requirements of

the CZMA consistency regulations.

Thus, in making regulatory changes

NOAA has been careful to adhere to

statutory requirements and has given

deference to the long-standing

consistency provisions that comport

with new statutory requirements. The

implementation of consistency by the

States and Federal agencies and

guidance by NOAA, especially in the

past few years, for the most part has

been based on reasonableness,

objectivity, collaboration and

cooperation. The strength of revised

regulations and State-Federal

interaction needs to further these goals

and be solidly grounded in the statute

and long-standing usage. With that in

mind, aside from the revisions required

by the changes to the CZMA, it is not

NOAA’s intent to fundamentally change

or ‘‘weaken’’ the consistency

requirement. NOAA’s intent is to clarify

certain sections, provide additional

guidance where needed, and provide

States and Federal agencies with greater

flexibility for Federal-State coordination

and cooperation.

III. Coastal Zone Act Reauthorization

Amendments of 1990

This final rule codifies changes made

to CZMA § 307 in 1990. The Coastal

Zone Act Reauthorization Amendments

of 1990 (CZARA) (Pub. L. No. 101–508)

amended the CZMA to clarify that the

federal consistency requirement applies

when any federal activity, regardless of

location, affects any land or water use

or natural resource of the coastal zone.

This new ‘‘effects’’ language was added

by the CZARA to replace previous

language that referred to activities

‘‘directly affecting the coastal zone,’’

establishing:

a generally applicable rule of law that any

federal agency activity (regardless of its

location) is subject to [the consistency

requirement] if it will affect any natural

resources, land uses, or water uses in the

coastal zone. No federal agency activities are

categorically exempt from this requirement.

H.R. Conf. Rep. No. 964, 101st Cong.,

2d Sess. 968–975, 970 (hereinafter

Conference Report). The focus of the

Federal agency’s evaluation should be

on coastal effects, not on the nature of

the activity. The Conference Report

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77125

provides further clarification on the

scope of the effects test:

The question of whether a specific federal

agency activity may affect any natural

resource, land use, or water use in the coastal

zone is determined by the federal agency.

The conferees intend this determination to

include effects in the coastal zone which the

federal agency may reasonably anticipate as

a result of its action, including cumulative

and secondary effects. Therefore, the term

‘‘affecting’’ is to be construed broadly,

including direct effects which are caused by

the activity and occur at the same time and

place, and indirect effects which may be

caused by the activity and are later in time

or farther removed in distance, but are still

reasonably foreseeable.

Id. at 970–71. These changes reflect

an unambiguous Congressional intent

that all Federal agency activities

meeting the ‘‘effects’’ test are subject to

the CZMA consistency requirement; that

there are no exceptions or exclusions

from the requirement as a matter of law;

and that the ‘‘uniform threshold

standard’’ requires a factual

determination, based on the effects of

such activities on the coastal zone, to be

applied on a case-by-case basis. Id.; 136

Cong. Rec. H 8076 (Sep. 26, 1990).

Other changes made to the CZMA by

the CZARA include the addition of

§ 307(c)(1)(B) which, under certain

circumstances, authorizes the President

to exempt a specific Federal agency

activity if the President determines that

the activity is in the paramount interest

of the United States. This section does

not require implementing regulations.

The CZARA also makes clear the

requirement that Federal agency

activities and federal license or permit

and federal assistance activities must be

consistent with the enforceable policies

of management programs. Finally, the

CZARA made technical and conforming

changes to the other existing federal

consistency requirements of CZMA

§§ 307(c)(3)(A) and (B), and 307(d) for

the purpose of conforming these

existing sections with changes made to

§ 307(c)(1).

IV. CZARA and Secretary of the Interior

v. California, 464 U.S. 312 (1984)

In 1984, the Supreme Court held that

outer continental shelf (OCS) oil and gas

lease sales by the Department of the

Interior’s Minerals Management Service

were not activities subject to the CZMA

consistency requirement as the lease

sales did not directly affect the coastal

zone. Secretary of the Interior v.

California, 464 U.S. 312 (1984). In

amending the CZMA federal

consistency section in 1990, Congress

overturned the effect of the decision in

Secretary of the Interior and made it

clear that OCS oil and gas lease sales are

subject to the consistency requirement.

Conference Report at 970. Congress also

intended this change to clarify that

other federal activities (in or outside the

coastal zone) in addition to OCS oil and

gas lease sales are subject to the federal

consistency requirement. The remainder

of the consistency discussion in the

Conference Report makes this clear as

does similar discussion in the

Congressional Record, 136 Cong. Rec. H

8068 (Sep. 26, 1990) [hereinafter

Congressional Record] (incorporated

into the Conference Report, see

Conference Report at 975).

Changes to the consistency section

clarify that any federal activity is subject

to the consistency requirement

(regardless of location) if coastal effects

are reasonably foreseeable, and that

there are no categorical exemptions.

Conference Report at 970. The

discussion in the Conference Report on

whether to list other federal activities

that are subject to the consistency

requirement, e.g., activities under the

Ocean Dumping Act, further clarifies

that no federal activities are

categorically exempt and that the

determination of whether consistency

applies is a case-by-case analysis based

on reasonably foreseeable effects on any

coastal use or resource. See Conference

Report at 971.

The Congressional Record sheds

further light on the intent and the scope

of Congress’ rejection of Secretary of the

Interior. Congress not only rejected

Secretary of the Interior, but eliminated

the ‘‘‘shadow effect’’ of the Court’s

decision (i.e., its potentially erosive

effect on the application of the federal

consistency requirements to other

Federal agency activities) * * * and

also to dispel any doubt as to the

applicability of this requirement to all

federal agency activities that meet the

standard [i.e., the effects test] for

review.’’ Congressional Record at H

8076.

Thus, the application of the

consistency requirement is not

dependent on the type of activity or

what form the activity takes (e.g.,

rulemaking, regulation, physical

alteration, plan). Consistency applies

whenever a federal activity initiates a

series of events where coastal effects are

reasonably foreseeable. See H.R. Rep.

No. 1012, 96th Cong., 2d Sess. 4382.

The CZMA, the Conference Report, and

NOAA regulations are specifically

written to cover a wide range of federal

functions. The only test for whether a

Federal agency function is a Federal

agency activity subject to the

consistency requirement is an ‘‘effects

test.’’ Whether a particular federal

action affects the coastal zone is a

factual determination.

V. Coastal Zone Protection Act of 1996

On June 3, 1996, the President signed

into law the Coastal Zone Protection Act

of 1996 (CZPA), Pub. L. No. 104–150.

Section 8 of the CZPA addresses the

Secretarial override process whereby the

Secretary of Commerce may override a

State’s consistency objection to a federal

permit, license or funded project.

Specifically, CZPA section 8 requires

the Secretary to publish a notice in the

Federal Register indicating when the

decision record in a consistency appeal

has closed. No later than 90 days after

the date of publication of this notice, the

Secretary is required to issue a final

decision or publish another notice in

the Federal Register detailing why the

decision cannot be issued within the 90-

day period. In the latter case, the

Secretary is required to issue a decision

no later than 45 days after the date of

the publication of the notice. This final

rule makes conforming changes in the

Secretarial override regulations

contained in subpart H of part 930.

VI. Purpose of This Final Rulemaking

A proposed rule to revise portions of

the federal consistency regulations was

published on April 14, 2000 (65 Fed.

Reg. 20269–20302). The purpose of this

final rule is to codify the 1990 and 1996

statutory changes to CZMA § 307, and to

update the federal consistency

regulations after 20 years of

implementation by NOAA, States and

Federal agencies. This final rule is also

the result of a two year informal effort

by NOAA to work with Federal

agencies, State agencies, and other

interested parties to identify issues and

obtain comments on draft proposed

revisions to the regulations. Thus, this

final rule has already undergone

substantial review and modification by

Federal agencies, State agencies and

other interested parties.

VII. Section-by-Section Discussion of

Final Changes and Response to

Comments on the Proposed Rule

Throughout part 930 NOAA makes a

number of minor revisions, as well as a

number of revisions that will implement

the CZARA and the CZPA. The minor

revisions include changes that will

update the regulations and make them

easier to use. The following is a sectionspecific discussion of some of these

changes, as well as changes that will

implement the CZARA and the CZPA.

In addition, there were numerous

comments on the proposed rule and

NOAA. These comments are

summarized under the relevant sections

77126 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

below along with NOAA’s response.

While many commenters suggested

changes to the regulations, these same

Federal agencies, State agencies and

others provided comments that noted

the importance of and the

improvements to the regulations, and

the need to finalize the regulations.

NOAA greatly appreciates these

comments and the assistance that the

Federal agencies, State agencies and

other interested parties have provided to

NOAA over the past three years to

develop these revised regulations.

Because of the number of changes made

to the regulations, 15 CFR part 930 is

published in its entirety in this Federal

Register notice.

Subpart A—General Information

Minor changes are made to clarify that

the obligations imposed by the

regulations are for State agencies as well

as for Federal agencies and other

parties, and to clarify that the purpose

of the regulations is to address both the

need to ensure consistency of federal

actions affecting any coastal use or

resource with the enforceable policies of

management programs and the

importance of federal programs.

Changes are made to encourage State

agencies and Federal agencies to

coordinate as early as possible, and to

allow State agencies and Federal

agencies to mutually agree to

consistency procedures different from

those contained in the regulations,

providing that public participation

requirements are still met and that all

relevant management program

enforceable policies are considered.

Minor editorial changes are not

individually identified in the sectionby-section analysis.

Section 930.1(c). One commenter

claimed that the proposed rule

complicates rather than simplifies the

administrative process. NOAA does not

agree. The rule clarifies existing NOAA

policy that State agencies, Federal

agencies and applicants may mutually

agree to augment or replace the

requirements of the consistency

regulations with other

intergovernmental coordination efforts,

so long as public participation

requirements are met and the State

agency is adequately enforcing its

management program. Such

intergovernmental coordination efforts

may be more efficient and effective for

the particular State and specific activity.

Most States already have procedures to

simplify and coordinate their

consistency and other permit reviews.

In addition, NOAA’s changes improve

the clarity of some sections that are

currently cause for confusion. This

increased clarity will provide a more

predictable and better understood

process.

Another commenter noted that public

participation is an important element of

the CZMA and should receive a high

priority in the regulation. NOAA agrees

and has made the last parenthetical in

subsection (c) a clause within the

sentence.

Section 930.1(e). One State

commented that the section should

retain reference to objectives of

management programs, and not just to

enforceable policies. NOAA disagrees.

In 1990, Congress placed great emphasis

on the need for State agency consistency

decisions to be based on enforceable

policies. See CZMA § 304(6a),

Conference Report at 972. The CZMA

was changed, in part, to expressly

require consistency with enforceable

policies. CZMA §§ 307(c)(1) and

(c)(3)(A). Advisory policies are still

addressed in section 930.39(c). The

terms objectives, standards, policies and

criteria are not retained, either for the

reasons stated above, or because they

are redundant with enforceable policies.

Sections 930.1(h) and (i) are removed.

See below under sections 930.132–134,

and subpart I.

Section 930.2 codifies the

requirement for public participation for

all types of consistency reviews which

was added by CZARA, CZMA

§ 306(d)(14). Environmental groups

commented that public participation

should be required for ‘‘negative

determinations.’’ NOAA disagrees.

CZMA § 306(d)(14) requires that State

agencies provide for public

participation in the State agencies’

review of consistency determinations

(Federal agency activities), and other

similar decisions. NOAA believes that

this provision refers to consistency

determinations and certifications which

are submitted for activities which the

project proponent reasonably expects

will have coastal effects and where State

agency review is required. Where a State

agency decision or review is not

required, public participation is not

required. State agencies are required to

review consistency determinations and

certifications. See response to comment

regarding section 930.3. Public notice

under CZMA § 306(d)(14) is not

required for State agency review of

negative determinations, since a State

agency is not required to review, and in

fact may never review, a Federal

agency’s negative determination, which

is a finding of no coastal effects. The

new time frames for State agency review

of negative determinations are only

provided if a State agency decides to

review a negative determination and to

ensure that such a discretionary review

occurs in a timely manner. If a Federal

agency were to agree that coastal effects

are reasonably foreseeable and that its

negative determination was not correct,

then the Federal agency would submit

a consistency determination pursuant to

subpart C, which would be subject to

public comment.

Section 930.3 was formerly located at

section 930.145. Two State commenters

said that this section misconstrues the

CZMA claiming that State agency

implementation of federal consistency is

not required, but is discretionary.

NOAA does not agree. Another

commenter recommended that the

regulations allow citizens to petition

NOAA if a citizen believes a

management program is not being

implemented. The comments regarding

State agency obligation to perform

consistency reviews incorrectly

interprets CZMA program development,

approval and continuing review

requirements; the ‘‘presumption’’

language in CZMA § 307; and ignores

the public participation requirement

added by Congress in 1990. A coastal

State voluntarily participates in the

CZMA program. However, to obtain

management program approval a State

must develop a program pursuant to

CZMA and NOAA regulatory

guidelines. Further, to continue to have

an approvable program, the coastal State

must adhere to CZMA and NOAA

regulatory implementation requirements

and must implement its federallyapproved management program. NOAA

monitors such implementation through

the CZMA § 312 evaluation process.

Federal consistency is one of the

requirements that a State must

implement. If a State is not reviewing

federal activities for consistency and

allowing the public to comment on the

State’s reviews, then the State is not

adequately implementing its federallyapproved management program.

The CZMA contains numerous

sections that are part of the requirement

for States to implement federal

consistency if the States want to

maintain an approvable program. For

example, CZMA § 306(d) requires States

to implement federally-approved

management programs, particularly

§§ 306(d)(1) (management program

adopted pursuant to NOAA regulations),

§ 306(d)(2)(D) (identification of the

means by which the State will exert

control over coastal uses), and

§ 306(d)(2)(F) (the organizational

structure used to implement the

management program).

Moreover CZMA § 312(a) requires the

Secretary to evaluate State programs to

ensure that a State has adequately

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77127

‘‘implemented and enforced’’ its

program. If the State is not adequately

implementing and enforcing its program

the Secretary may suspend the State’s

grant for non-compliance, CZMA

§ 312(c)(1), and require the State to take

necessary actions to remedy the noncompliance, CZMA § 312(c)(2)(A). If the

State does not remedy the noncompliance, then the Secretary may

withdraw program approval. CZMA

§ 312(d). A State cannot adequately

implement its management program

unless the State ensures, through federal

consistency, that federal activities are

consistent with the State’s enforceable

policies. For instance, one State waived

consistency on numerous projects due

to a State statute that required the State

to issue all State decisions within 90

days or the State’s permission is

presumed. NOAA identified this as a

management program implementation

problem and required the State, to ‘‘seek

administrative or regulatory

mechanisms that ensures consistency is

separate from issuance of a permit by

default, or ensure consistency is

conducted within the 90-day permit

review period.’’ OCRM/NOAA,

Evaluation Findings for the New Jersey

Coastal Management Program for the

Period from September 1991 through

November 1994, at 30 (June 1995). As a

result, the State clarified the application

of the 90-day statute and took steps to

complete its consistency reviews within

the 90-day State-imposed period. NOAA

followed up on this issue in the State’s

next evaluation and required the State

to provide an explanation of how it is

enforcing its program in light of the 90-

day State statute. OCRM/NOAA,

Evaluation Findings for the New Jersey

Coastal Management Program for the

Period from December 1994 through

November 1997, at 23 (April 1998).

In 1990 Congress added CZMA

§ 306(d)(14) which requires States to

provide for public participation in a

State’s review of federal consistency

determinations and other consistency

decisions by a State. Thus, if a State

agency receives a consistency

determination from a Federal agency,

the State cannot simply waive

consistency review. The State agency

must provide for public comment on a

State review to either concur with or

object to the determination. In addition,

the State must implement its program

and cannot do so if it ignores federal

activities under CZMA § 307, which

will affect the State’s coastal uses or

resources.

CZMA § 307 also specifies that State’s

must implement its program through

federal consistency. For instance,

§ 307(c)(3)(A) provides that States

‘‘shall’’ establish procedures for public

participation and ‘‘shall’’ notify Federal

agencies and applicants of its

concurrence or objection. The

‘‘presumption’’ of a State agency’s

concurrence in the CZMA and NOAA’s

regulations is not an indication of State

agency discretion to be non-responsive.

The ‘‘presumption’’ of concurrence is to

ensure that consistency reviews occur in

a timely fashion by providing a penalty

to the State for not responding within

the statutorily specified time frames.

Patterns of non-compliance are

remedied through the CZMA § 312

evaluation process, as described above.

NOAA’s regulations also contain

numerous sections requiring States to

implement their federally-approved

programs, including federal consistency.

For example, 15 CFR section 923.1(b)

requires States to comply with CZMA

§§ 306 and 307 for program approval;

section 923.1(c)(6) requires States to

have sufficient means to implement and

ensure conformance with their

management programs (which includes

their federal consistency programs);

section 923.1(c)(7) mirrors CZMA

§ 306(d)(14) requiring public

participation in its consistency reviews;

sections 923.40(a) and (b) and 923.46

require States to have the organizational

structure to implement their programs;

section 923.53 requires a State to

include in its program ‘‘the procedures

it will use to implement the Federal

consistency requirements. * * *’’;

section 923.133(c)(1)(i) requires that for

continued management program

approval that the State has

‘‘[i]mplemented and enforced the

[federally approved program.]’’ and,

under section 923(c)(2)(i)(C), the State

‘‘is effectively carrying out the

provisions of Federal consistency.’’

Finally, the criteria for invoking interim

sanctions for non-compliance, under

sections 923.135(a)(3)(i)(A), (D), and (E),

include ‘‘ineffective or inconsistent

implementation of legally enforceable

policies,’’ ‘‘ineffective implementation

of Federal consistency authority,’’ and

‘‘inadequate opportunity for

intergovernmental cooperation and

public participation’’ including input

through CZMA § 306(d)(14) (public

input into consistency decisions).

Federal consistency is an integral part

of ensuring consistent application of

State enforceable policies to all entities,

be they public, private, local

government or federal, and ensuring

adequate implementation of the State’s

management program, and as such, the

statute, the regulations and agency

practice require States to meet the

CZMA § 307 federal consistency

requirements.

As for the comment regarding a

process for citizen notification to OCRM

of State non-compliance, the CZMA

already contains such a process under

the section 312 program evaluation

process.

Section 930.4 clarifies the use by State

agencies of conditional concurrences.

Conditions of concurrence should not

replace State objections and the

identification of alternatives for

activities that the State agency finds are

inconsistent with its management

program. Since conditional

concurrences could seriously weaken

the State authority granted by the CZMA

consistency requirement, this rule only

allows conditional concurrences

pursuant to the following criteria: (1)

Conditions must be based on specific

enforceable policies, (2) the applicant

must amend its federal application, and

(3) the Federal agency approves the

application as amended with the State

conditions. If all of these requirements

are not met, then the conditional

concurrence is an objection.

Several Federal agencies, many State

agencies and others provided comments

either in support of or against this

provision. The CZMA does not

specifically address conditional

concurrences. The CZMA provides

predictability and finality by requiring

the State agency to concur or object

within a prescribed time period. The

CZMA does not provide the State

agency with the authority to enforce its

concurrence (or conditions) beyond the

State’s consistency decision deadline

(e.g., six months for licenses or permits).

Once a State agency has concurred, even

with conditions, the State agency retains

no further consistency authority over

the project (unless the project has

changed and not begun, see proposed

supplemental coordination under

sections 930.46, 66 and 101).

If a State agency objects, then the

State agency retains its authority over

the project; the Federal agency cannot

issue the license or permit and a Federal

agency may not be able to proceed with

a Federal agency activity. Some States

still prefer conditional concurrences,

presumably as a more positive response

to an applicant or Federal agency.

However, a conditional concurrence

may not provide an applicant or a

Federal agency with a definitive

response within the specified review

periods. A conditional concurrence

interjects less clarity into the

consistency process. Also, when a State

agency issues a conditional concurrence

the Federal agency may issue the permit

or, in the case of a Federal agency

activity, proceed with the activity. Thus,

issuing an objection and describing

77128 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

alternatives provides applicants and

Federal agencies with a definitive

response and retains State agency

authority.

A State cannot, through the CZMA,

enforce its conditions after it has

concurred. The State may request that

the Federal agency take enforcement

action or may seek a court order against

the applicant. The CZMA does not

require a Federal agency to adopt a

State’s conditions of concurrence and

OCRM could not require this through

regulation. A State condition may also

be outside the purview of the Federal

agency. The CZMA only requires that

the Federal agency shall not grant its

approval until the State agency has

concurred, concurrence is conclusively

presumed, or the Secretary overrides a

State agency’s objection. Also, if a State

agency concurs with conditions and the

Federal agency issues its approval

consistent with the conditions, but the

applicant later does not comply with the

conditions, the Federal agency is not

required to take an enforcement action.

Enforcement action is a purely

discretionary action by a Federal

agency. See State of New York v.

DeLyser, 759 F. Supp. 982 (W.D.N.Y.

1991).

However, the revised regulations do

include the concept that the applicant

may modify its federal permit

application pursuant to State conditions

and if the Federal agency approved the

amended application, the Federal

agency would be more likely to enforce

the State’s conditions (since the State

conditions would be part of the federal

permit). When reviewing activities

under CZMA § 307(c)(3)(A), it is the

responsibility of the applicant to submit

a consistency certification to the State

agency and therefore it is also the

responsibility of the applicant to

address the State’s conditions in the

application, rather than have the

Federal agency granting the permit or

license directly impose the conditions.

If the applicant did not modify its

federal permit application pursuant to

the State conditions or the Federal

agency did not approve the amended

application (with the State conditions),

then the concurrence would be deemed

an objection. Providing for conditional

concurrences in the regulations does not

preclude States from issuing an

objection. A discussion of whether the

Federal agency can enforce the State’s

conditions should take place during the

review period to help determine if a

conditional concurrence is the best

course of action. States have a choice of

choosing either option on a case by case

basis.

Under section 930.4, the existing time

frames for State agency review of

consistency certifications and

consistency determinations still apply.

If the State has proposed conditions and

is awaiting a response from the

applicant or Federal agency on

proposed conditions and does not hear

back within the specified review period,

the State agency can still issue an

objection. The State agency, applicant

and Federal agency can also negotiate a

new timeframe for responding to the

State’s proposed conditions and issuing

the conditional concurrence.

Section 930.5 is added to clarify that

the mediation and negotiation sections

of the regulations do not preclude other

State enforcement actions where the

State has jurisdiction or believes it is

necessary to take enforcement or

judicial action. One commenter asked

that mediation be mandatary. NOAA

disagrees. The use of the remedial

action and mediation provisions are not

mandated by the statute, the existing

regulations or long-standing practice.

These provisions are provided in statute

and regulation to provide mechanisms

to resolve conflict, but are not the only

possible remedies, hence the first

sentence of this section referring to

other possible actions. Certainly, States

and Federal agencies are encouraged to

attempt to resolve any differences

outside of judicial review.

Section 930.6 moves the nondefinitional parts of section 930.11(o)

(formerly section 930.18) to a section

describing the responsibilities of the

State agency. Section 930.6(a)

acknowledges that a State may have two

separate management programs (for

distinct regions) and two separate

federal consistency agencies. Currently,

California has two separate management

agencies (the California Coastal

Commission and the San Francisco Bay

Conservation and Development

Commission).

Section 930.6(b) simplifies

consistency terminology. At present,

different terms are used to describe

State responses for Federal agency

activities (‘‘agreement or disagreement’’)

and federal license or permit activities

(‘‘objection or concurrence’’). Now, a

State agency would either object to or

concur with a consistency

determination or a consistency

certification. In response to one

commenter, NOAA added public

participation language to this

subsection. While the public

participation requirements are

adequately covered in other sections,

mention of the requirements here would

be appropriate and helpful. Thus, in

subsection (b), the phrase ‘‘and, where

applicable, the public.’’ is added after

‘‘local government agencies.’’ In

subsection (c), the phrase ‘‘and that

applicable public participation

requirements are met.’’ is added to the

end of the first sentence after ‘‘State

management program policies.’’

Section 930.6(c) is added to clarify the

role of the single State agency for

coordinating federal actions and the

State agency’s responsibility to apply all

relevant enforceable policies when

conducting consistency reviews.

Several State agencies and others

supported section 930.6 in their

comments, while also recommending

changes that were not compatible with

the Statute regarding the State agency.

NOAA did not make any of the

suggested changes for the following

reasons. For the reasons Stated above in

response to comments on section 930.3,

and further elaboration below, the

words ‘‘uniformly and

comprehensively’’ are retained. States

are required to implement their

federally approved programs and to

apply all relevant enforceable policies to

a particular federal activity. The CZMA

requires compliance with all relevant

enforceable policies of a ‘‘management

program’’ and not a subset thereof. See

e.g., CZMA §§ 307(c)(3)(A), 304(12). A

major criterion for management program

approval is a determination that State

agencies responsible for implementing

the management program do so in

conformance with the policies of the

management program. 15 CFR section

923.40(b). See also section 923.41(b)(2).

Networked management programs must

also demonstrate that management

program authorities implement the full

range of policies. Section 923.43(c). The

federal consistency regulations mirror

the requirement for the application of

enforceable policies in a comprehensive

manner. Uniformity is required to

ensure that States are not applying

policies differently, or in a

discriminatory way, among various

entities for the same type of project for

similar purposes, e.g., holding a Federal

agency to a higher standard than a local

government or private citizen.

Obviously, if similar projects, e.g.,

shoreline stabilization, are proposed for

different purposes, then the States

review and decision will vary between

the two projects.

Other sections contain information

regarding Federal agency

responsibilities. This section only

applies to State agencies. The CZMA

requires that a State have a single State

agency for grant administration and

management program implementation

(including federal consistency). CZMA

§§ 306(d)(6) and 307(c)(1)(C). Further,

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77129

NOAA’s program approval regulations

require a single State agency charged

with implementing federal consistency,

section 923.53(a)(1), as does the existing

federal consistency regulation, section

930.18. The need for a designated State

consistency agency is to ensure: uniform

application of a State’s management

program policies, efficient coordination

of all management program

requirements, comprehensive coastal

management review, that all relevant

enforceable policies are considered for a

federal consistency review, that public

participation requirements are met, and

that there is a single point of contact for

Federal agencies and the public to

discuss consistency issues. The State

agency coordinates consistency reviews,

issues concurrences and objections,

coordinates with Federal agencies,

provides guidance on complying with

the consistency requirement, handles

appeals to the Secretary and mediation

requests, etc. The State agency may rely

on the expertise of other State agencies,

but other State agencies may not be the

designated State agency for consistency

reviews, decisions, etc.

Regarding the use of State permits, as

discussed above, the State agency must

ensure that all applicable enforceable

policies are applied to a consistency

matter. If described in a State’s

management program, the issuance of

relevant State permits can constitute the

State agency’s consistency concurrence

for federal license or permit activities if

the State agency ensures that the State

permitting agencies (or the State agency)

review individual projects in light of all

applicable management program

policies. The State agency must monitor

such permits issued by another State

agency. Monitoring does not mean that

the State agency has some sort of

overlord role or the ability to overrule

another State agency’s permit decision

(although some State agencies may have

this authority). Monitoring means that

the State agency is aware of other State

agencies’ actions that affect the

management program, the State agency

ensures that other State agencies’

decisions are consistent with the

management program, and that

decisions are being made within the

consistency timeframes, etc.

If all management program

enforceable policies are contained in

State permit standards, then usually the

issuance of the relevant State permit(s)

will be sufficient for determining

consistency. However, there may be

cases where a State permit is not

required, but the policies contained in

a permit program are applicable to the

project. In these cases, the State agency

must ensure that the activity is

consistent with these policies. The State

agency must also ensure that public

participation requirements are met.

A State agency may develop

alternative consistency procedures with

Federal agencies. In doing so, the State

agency must still be the consistency

contact and ultimate decision maker,

the State must enforce its CMP, and

public participation requirements must

be met by the State.

In response to a comment on section

930.6, regarding compliance with State

environmental review laws, as

discussed above, States are required to

apply relevant enforceable policies of

the management program. The

preparation and use of State

environmental review documents, and

compliance with such State

environmental review laws, is governed

by applicable State law, and not the

CZMA or NOAA’s regulations. What is

required, is that the State implement its

federally approved management

program, as discussed above. Likewise,

how the State coordinates with NEPA

documents is not proscribed by the

CZMA. The CZMA and NEPA are two

separate statutes with distinct

requirements. Often consistency reviews

are coordinated through NEPA

documents as a matter of administrative

convenience and also to provide

environmental information to support a

consistency determination. NOAA

encourages such practice, as previously

discussed in the preamble to the

proposed rule under proposed section

930.37.

Subpart B—General Definitions

The definitions have been redesignated to reduce the total number of

regulation sections. There is now just a

section 930.10 for the index and a

section 930.11(a) through (o) for the

definitions contained in subpart B.

Section 930.11(d) clarifies that

associated facilities are indispensable

parts of the proposed federal action. A

variant of the addition was previously a

comment to the 1979 regulations. 44

Fed. Reg. 37145. This addition ensures

that the State agency would have

sufficient information to fulfill its

coastal planning and management

responsibilities, and the proponent of

the federal action would not be faced

with the situation where there has been

receipt of State agency approval

regarding one element of the project

with later objection to an associated

facility which was not earlier reviewed

with the remainder of the proposal.

Sections 930.11(b) and (g) define ‘‘any

coastal use or resource’’ and ‘‘effect on

any coastal use or resource,’’

respectively. These terms are not

intended to alter the statutory

requirement which refers to any land or

water use or natural resource of the

coastal zone. These terms are merely a

simpler description of the statutory

requirement. The term ‘‘minerals’’ has

been added to include both surface and

subsurface mineral resources. Aesthetics

and scenic qualities are not natural

resources, but are enjoyment or use of

natural resources. These concepts have

been added to the definition of coastal

use. Land has been added to natural

resource. A sentence has also been

added to include coastal uses and

resources detailed in a management

program. Resource creation or

restoration projects has been added as a

coastal use. This includes tidal and

nontidal restoration and creation

projects. Air and invertebrates have

been added as natural resources. Since

historic and cultural resources are

important coastal resources under the

CZMA (see §§ 302(e), 303(2) and

303(2)(F)), the protection of historic and

cultural resources of the coastal zone is

included in the examples of coastal

uses.

Several States and environmental

groups commented that these sections

are the core of the 1990 amendments

and fully supported these sections.

Several commenters wanted additions

or deletions to these sections and for

NOAA to define ‘‘reasonably

foreseeable’’ in subsection (g). NOAA

did not make changes to these sections

based on these comments. The

definition for coastal uses and resources

is derived primarily from CZMA § 304

(coastal uses of national significance are

defined in CZMA § 304(2)). Not all

coastal uses or resources can be added.

The list is not exclusive, but is meant to

highlight the more common uses and

resources. The list includes coastal

resources of national significance,

which include beaches and barrier

islands, as defined in CZMA § 304(2).

The definition also uses the term ‘‘land’’

in its description of natural resources,

which includes barrier islands, spits,

beaches and bluffs. Therefore, NOAA

disagrees that it is necessary to add

these terms to the definition of coastal

resource. Biological, hydrological, and

geophysical systems are not resources,

but processes that affect resources. The

resources that are affected by these

processes are included in the definition.

It is also not clear why just these

processes are proposed to be listed.

Such a list would imply that other

processes are not included. These three

terms have not been added.

The definition of coastal effects is not

over broad, but is consistent with the

CZMA, legislative history and CEQ/

77130 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

NEPA definitions of cumulative and

secondary effects. The changes to the

CZMA in 1990 specifically removed

application of federal consistency to

‘‘direct’’ effects (and likewise

‘‘significant’’ or ‘‘substantial’’ effects).

See also response to comments

regarding section 930.31(a), and the

preamble to this rule. Explanation of the

change in 1990 is contained in the

Conference Report. The ‘‘effects’’

language is taken from the Conference

Report. The Conference Report is

persuasive authority for interpreting the

CZMA. The Conference Report states

that coastal effects are to be construed

broadly and include both direct effects

which result from the activity and occur

at the same time and place, and indirect

(cumulative and secondary) effects

which result from the activity and are

later in time or farther removed in

distance, but are still reasonably

foreseeable. The Conference Report

makes it clear that the test for triggering

consistency is not whether the effect is

significant or substantial, but whether it

is reasonably foreseeable. NOAA could

not put back in (or retain what is

currently in) regulation that which

Congress specifically removed in 1990.

Whether consistency applies is not

dependent on the type of federal

activity, but on reasonably foreseeable

coastal effects. For example, a planning

document or regulation prepared by a

Federal agency would be subject to the

federal consistency requirement if

coastal effects from those activities are

reasonably foreseeable.

Again, the application of consistency

is not limited by the geographic location

of a federal action; consistency applies

if there are reasonably foreseeable

coastal effects resulting from the

activity. A federal action occurring

outside the coastal zone may cause

effects felt within the coastal zone

(regardless of the location of the affected

coastal use or resource). For example, a

State’s fishing or whale watching

industry (which are coastal uses) could

be affected by federal actions occurring

outside the coastal zone. Thus, the effect

on a resource or use while that resource

or use is outside of the coastal zone

could result in effects felt within the

coastal zone. However, it is possible that

a federal action could temporarily affect

a coastal resource while that resource is

outside of the coastal zone, e.g.,

temporary harassment of a marine

mammal, such that resource impacts are

not felt within the coastal zone. As

stated above, the coastal effects test is a

fact-specific inquiry. NOAA is not

further defining ‘‘reasonably

foreseeable.’’ Congress envisioned that

Federal-State coordination through

consistency would be interactive. Thus,

the application of consistency, the

varied State management programs, the

analysis of effects, and the case-by-case

nature of federal consistency precludes

fast and hard definitions of effects and

what is reasonably foreseeable.

The ‘‘substantial’’ language in

sections 930.46 and 930.66 refer to

supplemental coordination for proposed

activities. The intent in these sections

was to address situations where coastal

effects have substantially changed, not

to define the scope of effects to trigger

initial State agency review.

The proposed definition includes

cumulative and secondary effects as part

of indirect effects via the following

language: ‘‘indirect (cumulative and

secondary) effects which result from the

activity and are later in time or farther

removed in distance, but are still

reasonably foreseeable.’’ The definition

goes on to State that ‘‘Indirect effects

resulting from incremental impact of the

federal action when added to other past,

present and reasonably foreseeable

actions, regardless of what person(s)

undertake such actions.’’ This language

is consistent with the Council on

Environmental Quality’s definition of

cumulative effects. 40 CFR section

1508.7.

The so-called ‘‘chain of events’’

concept was already captured in the

proposed rule under section 930.31,

which is derived from legislative history

discussing the scope of consistency.

Section 930.11(h) adds a definition of

enforceable policy by reference to

CZMA § 304(6a), and clarifies that an

enforceable policy must be sufficiently

comprehensive and specific to control

coastal uses while not necessarily

inflexibly committing the State to a

particular path. See American

Petroleum Institute v. Knecht, 456 F.

Supp. 889, 919 (C.D. Cal. 1978), aff’d,

609 F.2d 1306 (9th Cir. 1979); 15 CFR

section 923.40(a); Conference Report at

972. One Federal agency, three States

and the environmental groups had

various comments on this definition.

These comments included: the

definition is too broad, enforceable

policies should include federal law, the

section should require compliance with

State environmental review

requirements, and that not all policies

should have to be formally incorporated

into federally approved management

programs.

NOAA did not change the definition

based on these comments. Changing the

scope of the definition of enforceable

policies would be inconsistent with the

CZMA. Under CZMA § 307(c), Federal

agencies are required to submit a

consistency determination to the State

agency if it determines that there are

reasonably foreseeable effects. The

consistency determination should

include an evaluation of the proposed

activity in light of the applicable

enforceable policies in the State’s

Coastal Management Program (CMP).

The State has the authority to then

review this consistency determination

and decide whether it agrees with it,

including the Federal agency’s

interpretation of the State’s enforceable

policies. If the State disagrees with the

consistency determination, then it must

describe how the activity is inconsistent

with the enforceable CMP policies and

alternatives (if they exist) that would

allow the activity to be conducted in a

manner consistent to the maximum

extent practicable. If agreement cannot

be reached between the State and

Federal agencies, the Federal agency

may still proceed with the activity, as

long as it clearly describes to the State

the specific legal authority which limits

the Federal agency’s discretion to

comply with the State CMP’s

enforceable policies.

The regulations encourage early

discussions between the State and the

Federal agency over the meaning of the

State’s enforceable policies. For

instance, section 930.34 encourages

early consultation between Federal and

State agencies to obtain the State views

and assistance regarding the means for

determining that the proposed activity

will be conducted in a manner

consistent to the maximum extent

practicable with the State’s CMP. In

addition, the definition envisions that

discussions between the State and

Federal agencies may be necessary in

order to determine the consistency of

the activity with the State’s enforceable

policies.

CZMA § 307(e) requires that States

with approved CMPs must submit

changes to the CMP for approval by

OCRM before they can be considered

enforceable policies under the CMP.

Therefore, States cannot use enforceable

policies that are not part of the State’s

CMP for review of activities under

federal consistency. States are

encouraged to send in proposed changes

to their CMPs as soon as possible for

review by OCRM.

The CZMA does not provide for the

inclusion of federal laws into State

CMPs, but rather a listing of the State

enforceable policies (e.g., laws,

constitutional provisions, regulations

and judicial decisions). Federal agencies

or applicants for federal permits

undertaking activities that have

reasonably foreseeable coastal effects

must consider the enforceable policies

of the State’s CMP (see CZMA

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77131

§§ 307(c)(1)(A) and (3)(A)). This does

not preclude the need for these

activities to comply with relevant

federal laws, but the CZMA does not

grant authority to States to consider

federal laws as State CMP enforceable

policies when reviewing Federal agency

activities or federal license or permit

activities.

In addition, in order for a State law to

be used under federal consistency, it

must be a part of the State’s approved

CMP. Under CZMA § 306(d)(2)(D), the

State must include a list of enforceable

policies in its coastal management

program. Under CZMA § 306(e)(1), it is

the State’s responsibility to request that

OCRM consider including new or

revised enforceable policies for

inclusion in the State CMP. Therefore,

in order for a State to add an enforceable

policy to its CMP for the purposes of

federal consistency, such as the

California Environmental Quality Act

(CEQA), the State must make that

request to OCRM. Also, whether a

Federal agency must be fully consistent

with CEQA would depend on whether

Federal law precluded full consistency,

pursuant to the section 930.32

consistent to the maximum extent

practicable standard.

Management measures does not refer

to the ‘‘(g)’’ guidance for Coastal

Nonpoint Programs. It is a term

borrowed from the Conference Report

and American Petroleum Institute v.

Knecht that describes reasonable State

interpretations of its enforceable

policies.

Subpart C—Consistency for Federal

Agency Activities

Throughout the regulations the phrase

‘‘directly affecting the coastal zone’’ has

been changed to read ‘‘affecting any

coastal use or resource.’’ This codifies

changes made to the CZMA by CZARA

and includes reasonably foreseeable

effects on any land or water use or

natural resource of the coastal zone.

In section 930.30 NOAA deleted

‘‘conducted or supported’’ to conform

this section with changes made by

CZARA. In addition the title of subpart

C and throughout subpart C, the term

‘‘Federal activity’’ is changed to

‘‘Federal agency activity’’ to avoid

confusion with federal activities under

subparts D, E, and F. The phrase Federal

agency activity is taken directly from

the CZMA.

NOAA amended section 930.31(a) to

further describe the scope of the federal

consistency effects test by clarifying the

term ‘‘functions.’’ This language is

derived from the CZMA’s legislative

history. Three Federal agencies

commented that the definition is too

broad and should not include certain

federal activities. NOAA disagrees.

Federal agency activities are not defined

by the type of activity, but rather,

whether the activity will have

reasonably foreseeable coastal effects.

Despite this clear statutory and

legislative intent, there have been

questions over the years as to whether

a particular Federal agency action is

subject to the consistency requirement.

These questions have primarily arisen

for rulemaking and planning activities,

and that is why these activities are

included in the rule. Clearly, these are

Federal agency functions. A rulemaking

by NMFS that limits the catch of a

species of fish is a rulemaking that

affects a State’s fishing industry, which

is an effect on a coastal use. A

rulemaking by the Corps to authorize

activities in navigable waters and

wetlands under its Nationwide Permit

Program will allow activities that affect

coastal resources. Likewise, if a Federal

agency takes an action that interferes

with a coastal use, an ‘‘exclusion of

uses,’’ e.g., prohibiting public access or

fishing, that is a Federal agency activity

that has a coastal effect. A Federal

agency activity that initiates a series of

events where coastal effects are

reasonably foreseeable, is subject to

consistency. Congress emphasized this

as far back as 1980, H.R. Rep. No. 96–

1012, 96th Cong., 2d Sess. 34 (May 16,

1980), and re-emphasized the concept in

1990 when it declared that consistency

applies to Federal agency activities with

cumulative and secondary direct and

indirect effects. Conference Report at

970.

The question at hand is whether such

actions will have reasonably foreseeable

coastal effects. If so, then consistency

applies. If not, then consistency does

not apply. (Although the Federal agency

may have to provide the State agency

with a ‘‘negative determination’’ if: (1)

The activity is listed in the management

program, (2) the State agency notifies

the Federal agency that the State

believes that an unlisted activity will

have coastal effects, (3) the Federal

agency provided consistency

determinations for similar activities in

the past, or (4) the Federal agency

conducted a thorough assessment and

developed initial findings on coastal

effects.) The question of coastal effects

must be made on a case-by-case basis,

except where States and Federal

agencies have agreed that a class of

activities will not have coastal effects

(or will have de minimis effects as

provided for in section 930.33(a)(3)),

and are thus not subject to consistency.

Thus, if a Federal agency does not

believe that a particular rulemaking or

plan will have reasonably foreseeable

coastal effects, then the Federal agency

does not have to provide a consistency

determination.

As to the comments regarding the

CZMA and the Outer Continental Shelf

Lands Act (‘‘OCSLA’’), the Comment

makes NOAA’s case. The comment talks

about activities that do not affect the

coastal zone. If that is the case, then the

Federal agency does not need to provide

a consistency determination and may

have to provide a negative

determination. As for the matter of 5-

year OCS plans by Interior, the position

of the United States was made clear by

the U.S. Department of Justice by its

Office of Legal Counsel (Justice) in a

letter from Leon Ulman, Deputy

Assistant Attorney General, Office of

Legal Counsel, Justice, to Mr. C.L.

Haslam, General Counsel, Department of

Commerce, and Mr. Leo M. Krulitz,

Solicitor, Department of the Interior,

dated April 20, 1979 [Justice Opinion].

In addition, the clear language of the

1990 amendments to the CZMA, and

Congressional intent as described in the

Conference Report for the 1990

amendments, 5-year OCS plans are

subject to the CZMA federal consistency

effects test, 5-year OCS plans are not

exempted from the consistency

requirement as a matter of law or policy,

and there are efficient ways to address

consistency and 5-year OCS plans if

Interior determines that coastal effects

are reasonably foreseeable. See letter

from NOAA’s Office of Ocean and

Coastal Resource Management to

Interior’s Minerals Management Service,

dated August 7, 1996. If Interior

determines that coastal effects from the

5-year OCS plans are not reasonably

foreseeable, then Interior should issue a

negative determination.

Section 18 of the OCSLA requires that

procedures be established for

consideration of State coastal

management programs. Interior asserts

that this section and the 1978

amendments to the OCSLA deliberately

reject the consistency requirement in

favor of providing for consideration of

State coastal management programs.

NOAA believes that this interpretation

of the OCSLA as applied to the CZMA

is incorrect for four reasons: (1) The

plain language of the conference report

(and other legislative history) for the

1978 amendments to the OCSLA does

not reject the consistency requirement,

(2) the 1978 amendments to the OCSLA

added clear language that the

consistency requirement was not

affected, (3) in 1979 Justice determined

that pre-lease sale activities are subject

to the consistency effects test, and (4)

77132 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

even if the intent of the 1978

amendments to the OCSLA was to reject

the consistency requirement, the 1990

amendments to the CZMA clarifies that

all federal activities are subject to the

consistency requirement if there are

reasonably foreseeable coastal effects.

Further, consideration of management

program concerns to the maximum

extent practicable at the 5-year OCS

plan stage lays a foundation for leasing

activities that will also be consistent to

the maximum extent practicable.

When the CZMA and the OCSLA are

read together, the OCSLA requirement

for ‘‘consideration’’ of State coastal

management programs is consistent

with the CZMA requirement that

Federal agencies conduct their activities

consistent with State coastal

management programs. If the intent of

Congress was to repeal the CZMA

federal consistency requirement for prelease sale activities then it would have

specifically said so. As Justice stated:

[T]he intention of the legislation to repeal

must be clear and manifest; that every

attempt must be made to reconcile the

statutes involved; and that a repeal by

implication will be found only where there

is a ‘‘positive repugnancy’’ between the

statutes in question. Morton v. Mancari, 417

U.S. 535, 549–551 (1974); Borden v. United

States, 308 U.S. 188, 198–199 (1939).

Justice Opinion at 10. In this case,

requiring Interior to conduct an effects

test, and to provide a State with a

consistency determination or a negative

determination, where appropriate, does

not interfere with Interior’s pre-lease

responsibility under the OCSLA.

The 1978 OCSLA conference report

contains two references to the CZMA.

Under ‘‘Considerations,’’ page 103, the

report states:

The House amendment includes among the

consideration for a leasing program the

policies and plans under the [CZMA]. The

Senate bill contains no comparable

provision. The conference report follows the

House amendment and contains no such

specific provision as it is included within the

consideration of ‘‘laws, goals, and policies of

affected States.’’

This discussion in the conference

report and the corresponding section of

the OCSLA specifically require Interior

to address State coastal management

program requirements and says nothing

about rejecting the CZMA federal

consistency requirements. The second

reference to the CZMA in the conference

report is on page 105, and it States:

Both versions provide for regulations as to

coastal zone management applicability. The

House amendment provides for regulations

involving ‘‘consideration’’ of a program

‘‘being developed or administered’’ pursuant

to section 305 or 306, respectively, of the

[CZMA]. The Senate bill provides for

‘‘coordination’’ of the program with the

management program being developed and

also for ‘‘consistency’’ to the extent

practicable with the management program.

The conference report is the same as the

House amendment. The Secretary is to

establish procedures by regulation for

consideration of State coastal zone

management programs.

While the Senate version was more

specific as to the federal consistency

requirement, the House version does not

reject the consistency requirement.

Section 608(a) of the 1978 OCSLA

amendments expressly provides that:

‘‘[E]xcept as otherwise expressly

provided in this Act, nothing in this Act

shall be construed to modify, or repeal

any provision in the CZMA’’ (emphasis

added). This language was also included

in the section-by-section analysis of

section 19 in the House report. Justice

Opinion at 12, citing, H. Rept. 5–590, at

153, n.52. No section of the OCSLA

expressly repeals the CZMA and the

sections on pre-lease sale activities do

not expressly modify the CZMA. Thus,

there is no basis to reject the CZMA

consistency requirement based on the

conference report language.

Justice also found, after the 1978

amendments, ‘‘that neither the [CZMA]

Amendments of 1976 nor the [OCSLA]

Amendments of 1978 affect the

application of § 307(c)(1) to [OCSLA]

pre-leasing activities.’’ Justice Opinion

at 2. Justice also reviewed the legislative

history and found that it did not exempt

pre-lease sale activities from

consistency. Id. at 12. Justice found that

pre-lease sale activities are subject to

consistency effects test just like any

other federal function. Id. at 2.

Lastly, the 1990 amendments clarified

that any federal activity is subject to the

consistency requirement if coastal

effects are reasonably foreseeable. The

1990 amendments to the CZMA also

specifically rejected any categorical

exemptions. The only test for the

application of consistency is the effects

test. Thus, even if, arguendo, pre-lease

sale activities were exempted, pursuant

to the OCSLA amendments of 1978,

from consistency, they are now,

pursuant to the 1990 CZMA

amendments, clearly subject to the

consistency requirement.

Applying the consistency requirement

to the 5-year OCS program is sound

policy for several reasons. First, the

CZMA consistent to the maximum

extent practicable standard is not

onerous (especially at an early stage of

OCS development). Second, the 5-year

OCS plan offers a good opportunity,

early in the OCS process, to attempt to

resolve State concerns. Addressing

consistency at the 5-year OCS plan stage

allows States to identify coastal

concerns, such as the location of future

lease sales, and reduces potential

conflict. Third, Interior NEPA

documents have determined that the 5-

year plan is a major federal action with

expected environmental effects which

present an excellent point to determine

consistency with management

programs.

In 1984, the Supreme Court held that

OCS oil and gas lease sales by MMS

were not activities subject to the CZMA

consistency requirement as the lease

sales did not directly affect the coastal

zone. Secretary of the Interior v.

California, 464 U.S. 312 (1984). Despite

NOAA regulations and Justice opinions

indicating that the ruling was limited to

oil and gas lease sales, other Federal

agencies relied on Secretary of the

Interior to argue that their activities

were not subject to the federal

consistency requirement. In amending

the CZMA in 1990, Congress overturned

the effect of the decision in Secretary of

the Interior and made clear that OCS oil

and gas lease sales are subject to the

consistency requirement. Conference

Report at 970–72. Congress also

intended this change to apply to other

federal activities (in and outside the

coastal zone) in addition to OCS oil and

gas lease sales. The remainder of the

consistency discussion in the

Conference Report makes this clear as

does similar discussion in the

Congressional Record, 136 Cong. Rec. H

8068 (Sep. 26, 1990) [hereinafter

‘‘Congressional Record’’] (incorporated

into the Conference Report, see

Conference Report at 975). The

Conference Report clearly states that

changes to the consistency section

clarify that any federal activity is subject

to the consistency requirement

(regardless of location) if coastal effects

are reasonably likely, and that there are

no categorical exemptions. Conference

Report at 970. The discussion in the

Conference Report on whether to list

other federal activities that are subject to

the consistency requirement, e.g.,

activities under the Ocean Dumping

Act, further clarifies that no federal

activities are categorically exempt and

that the determination of whether

consistency applies is a case-by-case

analysis based on reasonably likely

effects on any coastal use or resource.

See Conference Report at 971.

The Congressional Record sheds

further light on the intent and the scope

of Congress’ rejection of Secretary of the

Interior. Congress noted that since the

Court’s decision, ‘‘other federal agencies

have broadly interpreted the case in a

manner that would exclude their

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77133

activities from [consistency],’’ and that

‘‘[t]he federal consistency provisions are

at the heart of the Nation’s coastal zone

management program and it has become

increasingly clear that the combination

of Supreme Court dicta and federal

agency belligerence are a troublesome

combination.’’ Congressional Record at

H 8072–73. Congress not only rejected

Secretary of the Interior, but eliminated

the ‘‘ ‘shadow effect’ of the Court’s

decision (i.e., its potentially erosive

effect on the application of the federal

consistency requirements to other

federal agency activities) * * * and also

to dispel any doubt as to the

applicability of this requirement to all

federal agency activities that meet the

standard [the effects test] for review.’’

Id. at H 8076.

Within the existing regulations and

the proposed rule are means for Interior

to provide consistency determinations,

where applicable, in a reasonable and

efficient manner. Briefly, the regulations

would allow Interior to use the effects

test to determine whether a consistency

determination is required; or could note

the lack of information at that 5-year

OCS plan stage; and could provide a

consistency determination to more than

one State under the new section for

determinations for activities that are

national in scope or affect more than

one State; and, finally, States and

Interior could agree that the 5-year plan

is too early in the OCSLA process, and

that consistency determinations may be

provided at later stages.

Section 930.31(b). One Federal agency

commented that a ‘‘development

project’’ should include a characteristic

from each of the two groups of

descriptors. The ‘‘and’’ in this section

has always been interpreted as

including at least one characteristic

from each of the two groups. However,

to make it clearer, the word ‘‘includes’’

has been inserted after ‘‘and’’.

Section 930.31(c) is added to clarify

that CZMA § 307(c)(1) is a residual

category. Federal actions that do not fall

into subparts D, E, or F are Federal

agency activities. CZMA § 307(c)(1)(A);

see 44 Fed. Reg. 37146. One Federal

agency commented that NOAA should

state that fisheries licensing programs

are subject to subpart C. No change is

required for this section. A fisheries

licensing program would continue to be

under subpart C. An individual license

to an applicant to conduct an activity

would be under subpart D. No change

is needed to continue the status quo.

Section 930.31(d) addresses the

hybrid nature of general permit

programs developed by Federal

agencies. This occurs when a Federal

agency proposes to replace the need for

an applicant to obtain an individual

permit with a general set of

requirements which, if met by the

applicant, would allow the applicant to

proceed with the activity without a

case-by-case approval by the Federal

agency. Two examples are the Corps’

Nation-wide Permit (NWP) program

under the Clean Water Act § 404 and the

Environmental Protection Agency’s

(EPA’s) general National Pollutant

Discharge Elimination System (NPDES)

permits for discharges from OCS oil and

gas facilities. The development of the

general permit program is best thought

of as a Federal agency activity. Even

though a general permit will authorize

license or permit activities, the

development of the federal requirements

is an action by a Federal agency, not an

applicant. Moreover, there is not a

discreet federal or license permit

activity to review and there is not an

applicant. Neither the statute nor the

regulations contemplated the hybrid

nature of general permits. CZMA

§ 307(c)(1)(A) does provide that a

Federal agency is subject to § 307(c)(1)

unless it is subject to paragraph (2) or

(3)(license or permit activities).

However, this does not resolve the

matter since § 307(c)(3) does not imply

or anticipate a situation where a Federal

agency is an applicant for its own

approval, and for general permits the

Federal agency is not actually

undertaking the license or permit

activity covered by the general permit.

Federal agencies may of course choose

to subject their general permit programs

to CZMA § 307(c)(3)(A).

Several commenters had various

suggested changes to section 930.21(d).

NOAA made corresponding changes to

the rule. NOAA agrees that subpart C

applies to general permit programs and

not case-by-case approvals to nonFederal applicants. This was the intent

of the section and clarifying language

has been added. ‘‘Should’’ is changed to

‘‘shall’’ as the intent was to remove the

need for case-by-case reviews where the

State agency concurs with the general

permit program. Language was added to

address the situation where a Federal

agency subjects itself to subpart D. Some

Federal agencies want to subject their

general permit programs to the

requirements of subpart D. This gives

States greater leverage over the Federal

action. If Federal agencies want to do

that, NOAA wants to provide them that

flexibility. NOAA has added clarifying

language regarding the need for State

agency concurrence for an individual

general permit, where the State objected

to the general permit program.

Even though general permit programs

are for activities that would normally be

subject to subpart D, the consistent to

the maximum extent practicable

standard still applies since the general

permit program is covered under

subpart C. It may be possible, although

unlikely, that a federal statute requires

a Federal agency to conduct a program

in such a manner that would not be

fully consistent with a State’s

enforceable policies. The regulations

already contain numerous instructions

to Federal agencies regarding notice to

State agencies and the content of

consistency determinations.

Section 930.31(e) is added in response

to a comment from a State to clarify

existing NOAA interpretation that a

modification to a Federal agency

activity that has coastal effects and has

not been subject to State agency

consistency review, is a Federal agency

activity subject to the consistency

requirement.

NOAA amended section 930.32 to

clarify the consistent to the maximum

extent practicable standard. NOAA

divided section 930.32(a) into 3

subsections. Subsections (1) and (2) are

the existing regulations and subsection

(3) is new. Minor changes were made to

section 930.32(a)(1) and the last

sentence in (a)(1) is moved to the end

of (a)(2). These changes are made for

clarity and brevity; there are no

substantive changes in subsections (a)(1)

and (2). The term ‘‘discretion’’ as

included in the existing regulations and

retained in the revised regulations

means that the more discretion a

Federal agency has under its legal

requirements, the more the Federal

agency must be consistent with the

management program’s enforceable

policies. In subsection (a)(2), NOAA

deleted the term ‘‘supplemental’’ since

the CZMA requires that a management

program’s enforceable policies are

requirements, not supplemental

requirements. Also, supplemental is

somewhat redundant with the rest of the

sentence.

Two Federal agencies commented that

the consistent to the maximum extent

practicable standard was too restrictive

and one State agency commented that

‘‘legislative history’’ is not federal legal

authority. The final, proposed and preexisting regulations all correctly

describe ‘‘consistent to the maximum

extent practicable’’ for purposes of the

CZMA. Congress clearly intended

Federal agencies to be consistent with

State management programs (see e.g.,

H.R. Rep. No. 92–1049, 94th Cong., 2d

Sess. 18–19), the regulations have

reflected this for over 20 years, courts

have upheld the definition (see e.g.,

California Coastal Commission v. Navy,

No. 97cv2219 (S.D. Cal. Jan. 28, 1998),

77134 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

and Congress specifically endorsed the

definition in the 1990 amendments in

the Conference Report.

Section 930.32(a)(3) clarifies the effect

of federal appropriations law on the

consistent to the maximum extent

practicable standard. A lack of funding

does not excuse a Federal agency from

having to conduct a federal activity in

a manner that is consistent with

management program enforceable

policies. Management program

enforceable policies are, in most cases,

in place long before the planning of

many federal projects and in advance of

budgeting for annual appropriations. A

Federal agency cannot avoid any State

requirement that it finds burdensome

simply by not funding the required

action. Advance planning and early

coordination can help alleviate these

concerns. If Federal agencies know what

the State’s enforceable policies are then

costs can be factored into an agency’s

planning. Also, just as Federal agencies

cannot avoid other federal and State law

requirements (e.g., under the Clean

Water or Air Acts, NEPA) due to

funding constraints, they cannot avoid

management program enforceable

policies. State enforceable policies are

developed pursuant to the CZMA,

approved by the Federal Government,

and applicable to Federal agencies

through the CZMA federal consistency

requirement.

One Federal agency commented that

section 930.32(a)(3) overturns long held

views of Federal agencies and NOAA or

preempts the Federal budgetary process.

Another Federal agency, while

acknowledging that a lack of funding

does not automatically render an action

not practicable, it may not always be

possible to plan for State requirements

in advance. Several States commented

that NOAA should require Federal

agencies to plan for State policies and

that the word ‘‘only’’ should be inserted.

One commenter wanted NOAA to

rewrite the section, and the

environmental groups commented that

there were contradictory statements in

the section. The only modification

NOAA has made is to remove the word

‘‘discretionary’’ as it is somewhat

redundant and limiting. In response to

the comments, it is NOAA’s

understanding that the ‘‘long held

views’’ of the Federal agencies, with the

possible exception of one or two offices

within one or two Federal agencies, are

compatible and in agreement with this

section. Moreover, the changes made by

Congress to the CZMA in 1990 carry

more weight than a Federal agency’s

‘‘view.’’ NOAA must base its regulations

on the statute. In this case, the

definition of ‘‘consistent to the

maximum extent practicable’’ is wellestablished and recognized by Federal

agencies and was specifically endorsed

in the 1990 CZMA changes. See

Conference Report at 972. This section

is also consistent with previous

statements made by the Department of

Commerce’s General Counsel. The letter

that the commenter refers to was a

comment submitted to the Corps on the

Corps’ proposed regulations. See letter

from Douglas A. Riggs, General Counsel,

Department of Commerce, to the Corps

(Aug. 20, 1986) (Riggs letter). The

comments provided to the Corps in the

Riggs letter recommend that the Corps

use NOAA’s regulations to define

coordination between the Corps’

program and the coastal States and

discusses ‘‘consistent to the maximum

extent practicable’’ consistent with

NOAA’s existing and proposed

regulations. The reference to

‘‘appropriations’’ in the Riggs letter is

ambiguous at best, but, if interpreted

with the statute and NOAA’s regulations

at the time, merely mean that if

something in appropriations law

prohibits full consistency, then the

Corps is consistent to the maximum

extent practicable. Any ambiguities in

the Riggs letter were replaced by the

clear language of the CZMA as amended

in 1990. Problems arise if Federal

agencies use dollar amounts specified in

appropriations law as part of the

consistent to the maximum extent

practicable equation. These problems

are: (1) The CZMA Presidential

exemption in CZMA § 307(c)(1)(B) is the

only express exemption due to lack of

appropriation amounts (even then, the

appropriations needed for full

consistency would have to be

specifically requested by the President

as part of the budgetary process, and

Congressional appropriations would

have to specifically exclude from

funding the cost of being fully

consistent); (2) appropriations laws

often provide little guidance as to how

funds are to be used; and (3) the CZMA

mandates that State enforceable policies

are substantive requirements.

Sometimes appropriations are

insufficient due to inadequate planning,

failure to include the cost of CZMA

compliance in a budget request, or

insufficient funds from other sources.

The solution is to ensure that Federal

agencies plan and budget for full

consistency early in the scoping process

for an activity and to include specific

costs for full consistency in their

budgetary process.

NOAA believes the meaning of

section 930.32(a)(3) is clear and has not

added the word ‘‘only.’’ NOAA has not

replaced ‘‘should’’ with ‘‘shall’’ when

discussing the admonition for Federal

agencies to plan and budget for the costs

of being consistent with State policies as

there is no basis in the statute for NOAA

to impose such a directive. The statute

requires the Federal agency to be

consistent to the maximum extent

practicable with enforceable policies.

How a Federal agency does this and

how it funds such consistency is

determined by other Federal law or each

agency’s planning, budgetary and

policy-making processes. The language

of this section is clear regarding

appropriations and consistency. There

is no contradiction as the section merely

acknowledges that appropriation laws

are Federal law which may contain

specific legal prohibitions to full

consistency. Absent such specific

prohibitions, the Presidential exemption

is the only provision which may be used

by a Federal agency to make a finding

that a lack of funds prohibits full

consistency.

Section 930.32(b) clarifies that in an

emergency, or other similar unforeseen

circumstance, the Federal agency must

still adhere to the consistency

requirements, to the extent that exigent

circumstances allow. For example, a

Federal agency, responding to an

emergency, must still provide a

consistency determination to the State

agency, if time allows. If the time frame

for responding to an emergency is too

short for a consistency determination,

the Federal agency should coordinate

with the State agency to the extent

possible. To avoid uncertainty in these

instances, the Federal agency and State

agency may mutually agree to

emergency response planning prior to

an actual emergency, or develop

expedited procedures or a general

review for reasonably foreseeable

emergency situations and activities. The

phrase ‘‘exigent circumstances’’ is used

since many agencies respond to

emergencies, but they may not be

mandated by law to respond within a

certain time frame. Thus, their rapid

response may be determined by the

emergency nature of the activity (i.e.,

the exigent circumstances), not their

discretionary authority. Several State

agencies commented that this section

needs to be clearer regarding Federal

agency responsibilities to ensure that

Federal agencies deviate only when

there is a true emergency and that even

when there is an emergency, the Federal

agency still complies with the

consistency requirements if the action

continues after the emergency is past.

NOAA agrees that this section needed

revision to better reflect the

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77135

‘‘emergency’’ nature of deviating from

consistency. The consistency

requirements should not be set aside

unless absolutely necessary and if an

emergency arises, then consistency

should be adhered to once the

emergency passes if there is still an

activity occurring. NOAA has made

corresponding changes to this section.

Section 930.32(c) addresses national

security activities that are ‘‘classified.’’

The 1990 changes to the CZMA make it

clear that all federal activities are

subject to the consistency requirement.

Thus, a classified activity that will affect

coastal uses or resources is subject to

the consistency requirement unless

exempted by the President under CZMA

§ 307(c)(1)(B)). However, under the

consistent to the maximum extent

practicable standard, the Federal agency

need only provide project information

that it is legally permitted to release.

Despite the fact that a Federal agency

may not be able to disclose certain

project information, the Federal agency

must still conduct the classified activity

consistent to the maximum extent

practicable with the management

program. Concerned management

programs may want to consider

developing general consistency

agreements with relevant Federal

agencies for classified activities. The

definition of ‘‘classified’’ is adopted

from the Freedom of Information Act.

Information concerning the national

defense or foreign policy is protected

from disclosure provided it has been

properly classified in accordance with

the substantive and procedural

requirements of an executive order. As

of October 14, 1995, the executive order

in effect is E.O. 12,958, 3 CFR 333,

reprinted in 50 U.S.C. § 435 note (1994).

Generally, it is preferable, however, not

to identify the particular executive order

in the regulations, because it may be

supplanted by a new order and courts

have held that agencies should always

apply the executive order in effect at the

time the classified determination is

made—i.e., an agency does not have to

go back through all of its old

information and reclassify it pursuant to

the latest executive order. One

commenter said the definition of

classified activity was too broad and

that the rule should encourage the use

of qualified third parties to review

classified materials. NOAA does not

agree that the language of the subsection

is over broad. The subsection

adequately instructs Federal agencies to

withhold only classified material.

NOAA agrees that using a qualified

third party to review classified material

is appropriate where both the Federal

agency and State agency agree.

Section 930.33(a)(1) clarifies that

effects on any coastal use or resource are

not limited to environmental effects and

that a review of relevant management

program enforceable policies is

necessary to determine whether the

activity will affect any coastal use or

resource. Two commenters

recommended that NOAA add language

that an activity has coastal effects if it

initiates actions leading to effects (socalled ‘‘chain of events’’ language) and

that NOAA add language regarding

State-Federal consultation. NOAA has

added the chain of events language from

section 930.31(a) to this section as well.

The sentence regarding consultation

with State agencies is not added as the

regulations contain sufficient direction

for Federal agencies to consult with

State agencies.

Section 930.33(a)(2) clarifies when

federal consistency does not apply to a

Federal agency activity. If there are no

effects on any coastal use or resource

and a negative determination is not

required, then the Federal agency need

not provide anything to the State.

Several States and the environmental

groups commented that Federal

agencies should consult with State

agencies even when there are no coastal

effects or to provide a negative

determination. NOAA added the phrase

‘‘Federal agency activity’’ to distinguish

this section from the need to consult

with State agencies for development

projects. The other comments are not

accepted, because the intent of this

section is to clarify when Federal

agencies must consult with State

agencies. The CZMA does not require

Federal agencies to coordinate with

State agencies for activities that do not

have coastal effects. To require

coordination for such activities would

be contrary to the CZMA, unreasonable

and place an enormous burden on the

Federal agencies with little or no benefit

to management programs. NOAA also

believes it would also be unwise to

‘‘encourage’’ such unnecessary

coordination. The regulations do require

that a Federal agency provide a State

agency with a negative determination in

certain circumstances, and this has been

retained in the revised regulations.

Section 930.33(a)(3) provides a

process whereby State agencies and

Federal agencies can more efficiently

address ‘‘de minimis’’ activities. De

minimis activities cannot be unilaterally

excluded from the Federal consistency

requirement. Two Federal agencies

commented that this section will be

very useful, but suggested NOAA use a

different word than ‘‘trifling.’’ Another

Federal agency commented that de

minimis activities should be excluded,

by rule, from the consistency

requirement. State commenters

supported the section with suggested

wording changes. One environmental

group commented that de minimis

activities should only be excluded after

opportunity for public comment. Other

environmental groups opposed this

section as contrary to Congressional

intent that no activities be excluded that

have coastal effects. These groups also

asked that public comment be provided

for if the section were retained.

NOAA has replaced the word

‘‘trifling’’ with ‘‘insignificant’’ and has

also clarified that de minimis applies to

activities with insignificant direct and

indirect coastal effects. While the use of

this section will be limited to activities

with little or no coastal effect, NOAA

agrees that States need to provide for

public input before excluding such

activities. NOAA believes that the

CZMA provides States with the

flexibility to exclude such activities

with insignificant effects, by agreement

with Federal agencies and with

opportunity for public input. NOAA

intends to foster efficient and effective

administrative mechanisms. This

section allows States to do that.

If Federal agencies cannot unilaterally

exclude their activities from

consistency, neither can NOAA on its

own, by rule, exclude activities. The

1990 amendments to the CZMA clearly

require that federal actions are subject to

consistency if they affect coastal uses or

resources. There is no distinction as to

the magnitude of effects. Seemingly

minor effects may have substantial

coastal effects when cumulative and

secondary effects are considered.

Congress specifically recognized this in

1990. Conference Report at 970–72.

There are several problems with listing

or mandating a de minimis exception, as

suggested by the comment. As the court

noted in Environmental Defense Fund v.

EPA, 82 F.3d 451 (D.C. Cir. 1996),

modified by 92 F.3d 1209 (D.C. Cir.

1996), ‘‘[t]he ability to create a de

minimis exemption is not an ability to

depart from the statute, but rather a tool

to be used in implementing the

legislative design. * * * Of course,

* * * a de minimis exemption cannot

stand if it is contrary to the express

terms of the statute.’’ The express terms

of the CZMA are that consistency

applies to ‘‘each’’ federal activity

‘‘affecting’’ ‘‘any’’ coastal use or

resource. Neither the CZMA nor the

Conference Report specifically authorize

a de minimis exception. Conference

Report at 970–972. Rather, the

Conference Report provides persuasive

77136 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

authority regarding legislative design:

‘‘effects’’ are to be construed broadly

and include reasonably foreseeable

direct and indirect effects. Further,

Congress amended the CZMA in 1990 to

specifically guard against Federal

agencies exempting their activities.

Thus, any attempt to address de

minimis activities must be done

cautiously and only with the

concurrence of the State agency. Finally,

many States are concerned with the

cumulative effect of seemingly de

minimis activities. States are not only

concerned with resource protection

issues, but ensuring that their efforts to

address de minimis activities through

other planning and permitting activities

are not compromised by exempting

other de minimis activities.

The CZMA, however, allows States

and Federal agencies to agree to address

de minimis activities in a flexible

manner. The proposed revisions do not

provide detailed definitions of de

minimis activities. Rather, OCRM

proposes some general guidelines and

then leaves it to the Federal agency and

States, with opportunity for public

comment, to agree as to what is de

minimis.

Section 930.33(a)(4) allows State

agencies and Federal agencies to

mutually agree to exclude

environmentally beneficial activities

from further State agency review. Two

commenters said that environmentally

beneficial activities should not be

excluded from review, that public

comment is needed and that the section

should be deleted. NOAA believes that

States and Federal agencies should have

the flexibility to agree to exclude

activities from consistency review that

will be beneficial to the environment.

This is consistent with the CZMA’s

directives regarding administrative

efficiency and effectiveness. See CZMA

§ 303(2)(G), (H) and (I). NOAA has

clarified that environmentally beneficial

refers to the protection and restoration

of natural resources of the coastal zone.

NOAA also recognizes the importance

of such decisions to the public and has

specifically required that any such

exclusion requires public notice and

comment pursuant to CZMA

§ 306(d)(14).

Section 930.33(c)(2) is removed. Outer

continental shelf (OCS) oil and gas lease

sales are Federal agency activities and

are subject to the CZMA consistency

requirement. See Sections III and IV of

this proposed rule. Likewise, pre-lease

sale activities are also subject to the

consistency requirement if coastal

effects are reasonably foreseeable. See

44 Fed. Reg. 37154 (comment to section

930.71); Letter from Leon Ulman,

Deputy Assistant Attorney General,

Office of Legal Counsel, U.S. Dept. of

Justice, to C.L. Haslam, General

Counsel, U.S. Dept. of Commerce and

Leo M. Krulitz, Solicitor, U.S. Dept. of

the Interior (Apr. 20, 1979).

Section 930.33(d) clarifies the CZMA

federal consistency ‘‘effects test.’’ Early

Federal-State coordination is

emphasized to reduce conflict, build

public support, provide a smooth and

expeditious federal consistency review,

and to help Federal agencies avoid

costly last minute changes to projects in

order to comply with management

program enforceable policies. The

earlier the coordination, the less likely

it is that conflict will arise. Early

coordination also enables a Federal

agency to address coastal management

concerns while the agency still has the

discretion to alter the activity and before

substantial resources have been

expended.

Section 930.34 is replaced by a new

section 930.34, which contains some of

the information from the original

section 930.34. Other parts of the

original section 930.34 are moved to

section 930.36.

Section 930.34(a)(2) encourages

Federal agencies and State agencies to

use existing procedures to coordinate

consistency reviews. However, for

permit requirements in management

programs that are not required of

Federal agencies by federal law other

than the CZMA, the Federal agency may

submit the necessary information in any

manner it chooses so long as the

requirements of this subpart are

satisfied. NOAA has encouraged the

practice of management programs using

State permitting procedures as an

administrative convenience to process

Federal agency consistency

determinations under CZMA § 307(c)(1)

and (2). This results in efficient State

consistency reviews by taking advantage

of existing review procedures otherwise

applicable to permitting actions. This

new section is based on a comment in

the original 1979 regulations, 44 Fed.

Reg. 37147.

There were various comments on

section 930.34(a) regarding a description

of the nature of coordination being

recommended, mandating early

coordination, cross-referencing the

section to section 930.36(b) and section

930.39, the meaning of the removal of

the word ‘‘directly,’’ standardizing

notification and response procedures,

and adding ‘‘cumulative effects’’ to the

section. NOAA has not made any

changes based on these comments. The

regulations should not specify the

nature of the coordination

recommended as States and Federal

agencies should have flexibility to

determine how best to conduct such

coordination. NOAA cannot require

early coordination. If a State has

problems conducting consistency

within the specified time periods, then

the State needs to make changes to State

laws or processes. The State could also

develop an MOU with particular

Federal agencies. Cross references to

other sections are redundant and not

necessary. As stated earlier, all

references to coastal effects refers back

to the definition in section 930.11(g),

which includes reasonably foreseeable

direct and indirect (cumulative and

secondary) effects on coastal uses or

resources.

Section 930.34(b) is moved to section

930.36(b) and amended to clarify that

the Federal agency must provide a

consistency determination to the State

while the Federal agency still has the

ability to alter the activity to address

management program policies.

Sections 930.34(b)(2) and (c) is

deleted, with parts of these sections

moved to new section 930.34(c). These

sections are confusing and are not

needed, because the listing provision for

Federal agency activities is a

recommendation and not a requirement

and Federal agencies must provide a

consistency determination to applicable

States for activities with coastal effects

regardless of whether the State has

listed the activity. One commenter said

that the State agency should provide for

public comment before an activity is

listed or de-listed. Public comment is

already provided for when the State

proposes to submit a listing or de-listing

to NOAA as a program change, under 15

CFR part 923, subpart H.

Other comments were made on

section 930.34(c) by two Federal

agencies and several State agencies

requesting clarification and changes to

unlisted Federal agency activities. In

response, NOAA added language to

subsections (b) and (c) to clarify that

listing of Federal agency activities is

optional. Thus, time limits for State

agency notification of unlisted Federal

agency activities are not appropriate

since a Federal agency is required by

statute to provide a consistency

determination when coastal effects are

reasonably foreseeable. In some cases,

the Federal agency may not be aware of

its CZMA responsibilities and NOAA

cannot, by rule, remove the consistency

requirement when there may be coastal

effects. If a Federal agency actually

makes a determination of no effects, in

many cases a negative determination

will be required so that the State will

receive notice with attendant time

frames. If a negative determination is

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77137

not required, and the Federal agency

made a CZMA determination of no

effects, it may so notify the State agency

as a matter of comity and improved

coordination. Previous language is not

retained as it was confusing.

Consistency is an affirmative duty for

Federal agencies and, as such, the State

agency listing procedure is not

mandatory.

Section 930.34(d) encourages Federal

agencies to seek assistance from the

State agency in its determination of

effects and consistency. At a minimum,

State agencies must be able to provide

Federal agencies with the applicable

enforceable policies. Because

identifying a State’s enforceable policies

can be difficult, Federal agencies noted

the importance of this provision. Also,

providing the Federal agency with the

applicable policies will help focus the

Federal agency’s efforts on the State

agency’s concerns. One State agency

commented that identifying enforceable

policies could be problematic, because a

State agency may fail to identify all

applicable policies or the Federal

agency may overlook policies. One State

agency commented that State agencies

should have flexibility to decide how to

offer assistance, and one commenter

said that the public or local

governments should be able to identify

additional policies.

NOAA did not change the rule based

on these comments. The statute and

regulations clearly require Federal

agencies to be consistent with all

applicable enforceable policies,

including those that may have been

overlooked at one time. Moreover, the

regulation already addresses early

identification of enforceable policies by

stating that such identification is:

‘‘based upon the information provided

to the State agency at the time of the

request.’’

The statute and regulations are clear

that the Federal agency prepares the

consistency determination. If a State

does not want to assist the Federal

agency in the preparation, then the State

loses a good opportunity to ensure that

all of its relevant policies are considered

and accurately interpreted. Further,

NOAA believes that it is the State

agency’s responsibility to be able to

accurately and completely identify its

enforceable policies. The

implementation of federal consistency

at the State level is solely the

responsibility of the State agency.

Neither the public nor local

governments can identify, or interpret,

applicable management program

enforceable policies for federal

consistency purposes. See sections

930.6 and 930.11(o) (for responsibilities

and definition of the State agency), and

response to the comment regarding

section 930.6.

Section 930.35 applies to negative

determinations and clarifies existing

requirements for negative

determinations. Various comments were

made regarding the State lists and when

a negative determination should be

provided. NOAA responded by adding a

reference to the list in section 930.34(b).

The word ‘‘relevant’’ is removed. NOAA

has re-inserted the language from

existing section 930.35(a)(3). NOAA had

previously proposed to eliminate this

subsection as not used and redundant.

However, States provided persuasive

information and examples that

demonstrated that this section is used

often, and used differently than the

other requirements for negative

determinations, and provides States

with an effective notification of Federal

agency activities. A consistency

determination is not required if a State

agency objects to a negative

determination. The determination of

coastal effects is made by the Federal

agency and even if a State objects, the

Federal agency may still rely on its no

effects determination and proceed with

the activity. In such cases, State and

Federal agencies may enter into

mediation to resolve the matter, or the

State may litigate. NOAA cannot require

a Federal agency to provide a

consistency determination or a negative

determination prior to the 90-day

notification requirement. The

regulations already contain sufficient

encouragement for Federal agencies to

consult with State agencies prior to the

90-day period and early in the planning

phase of a Federal agency activity.

Section 930.35(b) clarifies the

information requirements for a negative

determination. A negative

determination, by definition, is a

finding of no effects. Thus, the

information provided to the State

agency for a negative determination may

not be as substantial as that provided for

a consistency determination. One

Federal agency commented that it

opposed the need to provide an

evaluation of enforceable policies as

part of its negative determination. A

Federal agency’s review of a State’s

enforceable policies is essential for

determining coastal effects. This is

emphasized in changes to section

930.33(a)(1) (Identifying Federal agency

activities affecting any coastal use or

resource).

Section 930.35(c) clarifies that if a

State agency wishes to disagree with a

Federal agency’s negative

determination, it must do so within 60

days or its concurrence is presumed.

Public notice under CZMA § 306(d)(14)

is not required for State agency review

of negative determinations since

negative determinations are not

consistency determinations as

contemplated by the Act. This section

also clarifies that, if a Federal agency

were to agree that coastal effects are

reasonably foreseeable and that its

negative determination was not correct,

then the State agency and Federal

agency may agree to an alternative

schedule to promote administrative

efficiency. One Federal agency objected

to applying the 90-day statutory

notification period and the 60-day State

agency response period to negative

determinations. Another Federal agency

asked that the section be clarified

regarding State lists and the

postponement of the activity by the

Federal agency. Several States

commented that Federal agencies

should be required to postpone action

until disagreements have been resolved.

One commenter and the environmental

groups commented that States should

provide for public comment of the State

agency’s review of a negative

determination. NOAA responded by

adding language to subsection (c) to

clarify that State agencies are not

obligated to respond to a negative

determination. As such, States are not

required to provide for public

participation for negative

determinations under CZMA

§ 306(d)(14). A State could acquiesce in

all negative determinations that it

receives without providing any review

or response. It is simply an

acknowledgment of the Federal agency’s

determination that its activity will not

have coastal effects, and that, therefore,

the activity is not subject to the

consistency requirement. If a State

agency believes that the activity will

have coastal effects and the Federal

agency agrees, then the Federal agency

would provide a consistency

determination, which would require the

State agency to provide for public

participation in the State agency’s

review of the consistency

determination. To clarify this, the final

clause of the subsection from the

proposed rule is deleted as it does not

matter whether a new 90-day clock is

started or whether an alternative

schedule is agreed upon for a

consistency determination, public

participation would be required.

To be consistent with the change to

§ 930.43(d), ‘‘should postpone’’ is

changed to ‘‘should consider

postponing.’’ A Federal agency cannot

be required to postpone final action past

the 90-day period. If a Federal agency

77138 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

maintains that coastal effects are not

reasonably foreseeable, and has met the

procedural requirements of these

regulations, then the Federal agency has

fully met its consistency

responsibilities. If a State disagrees with

a negative determination, it can seek

mediation where the Federal agency

might agree to postpone action, or sue

the Federal agency for making an

arbitrary and capricious finding that

coastal effects are not reasonably

foreseeable. The regulations already

require that a negative determination be

submitted at least 90 days prior to

agency action. NOAA does not intend to

disturb this long-standing provision.

This is based on the statutory

requirement for consistency

determinations since a Federal agency

could determine, after input from a

State, that the activity does in fact have

coastal effects. The new review period,

which is reasonably based on the review

periods for consistency determinations,

is provided to ensure that States

respond in a timely fashion, if a State

elects to respond. These review periods

will actually provide a Federal agency

with a more timely response to a

negative determination, i.e., within 60

days rather than 90 days. As States are

not required to list Federal agency

activities, neither can they be required

to list activities for which negative

determinations have been prepared in

the past. A Federal agency could request

that State do so, and it would be in the

best interest of the State to provide such

information, but it cannot be required.

Section 930.36 is moved to section

930.35(d). Section 930.36 incorporates

existing sections 930.37 and 930.34(b)

and elaborates on consistency

determinations for proposed activities.

Section 930.36(c) clarifies the use of

general consistency determinations.

Federal agencies may provide State

agencies with general consistency

determinations for repetitive activities

in the same manner that they provide

single consistency determinations. A

general consistency determination is

still only allowed in a limited number

of cases where the activities are

repetitive and do not affect any coastal

use or resource when performed

separately. NOAA has added greater

flexibility for State agencies and Federal

agencies to mutually agree to use

general determinations. The primary

purpose of a general determination is for

repetitive activities. Allowing a Federal

agency to unilaterally provide a general

determination for non-repetitive

activities that have cumulative effects

would be inconsistent with the 1990

CZMA changes. A general consistency

determination may be used for de

minimis activities only when the

Federal agency and State agency have

mutually agreed to do so. The terms

‘‘periodic’’ and ‘‘substantially similar in

nature’’ are proposed to be deleted as

the concept of ‘‘repetitive’’ includes

these terms. One Federal agency

commented that the section was vague.

Several States commented that

coordination with States prior to

submitting a general determination

should be required. Periodic

consultation on a general consistency

determination will vary depending on

the nature of the Federal agency

activity. Thus, NOAA is leaving this

phrase unchanged and allowing States

and Federal agencies to develop

consultation periods. As is the case for

non-general consistency determinations,

Federal agencies cannot be required to

consult with States prior to the 90-day

period. It is certainly in the interest of

all concerned to consult prior to

submitting a general consistency

determination and the regulations

contain ample encouragement for early

coordination.

Section 930.36(d). One Federal agency

commented that a State agency should

not be able to re-review earlier phases

of an activity with which the State

concurred. The regulation is clear that a

consistency determination will be

provided for each phase. By definition,

the State then reviews and objects or

concurs with each determination. The

State cannot revisit its earlier

concurrence. If the activity is

substantially changed then the later

phased consistency determination

should cover the changes from the

previous phase or new section 930.46

may require a supplemental

determination.

Section 930.36(e) describes a method

to efficiently address consistency

requirements for a federal activity that

is national or regional in scope. For

example, a federal activity, such as a

rulemaking or planning activity, may

apply to more than one coastal State

where coastal effects are reasonably

foreseeable. Providing each State with a

separate consistency determination may

be difficult, inefficient and not cost

effective, even with early coordination.

The proposed regulation provides States

and Federal agencies with the means to

effectively coordinate, ensure adequate

consideration of management programs,

and provide an efficient, cost effective

and timely method for meeting the

consistency requirement. Two Federal

agencies expressed concerns on whether

national rulemaking or plans should be

subject to consistency. One Federal

agency commented that it was unclear

how the process differed for national

consistency determinations. One State

commented that a State should be able

to require additional information to start

the consistency review period. One

commenter said that a national

consistency determination should

require essentially the same information

as that for a consistency determination

submitted to one State.

NOAA disagrees that this subsection

will not facilitate the development of

consistency determinations that apply

to multiple States. This section allows

Federal agencies to send one

consistency determination applicable to

all States, using one discussion for

coastal effects and enforceable policies

that are in common among the States.

There would be individual State

sections in the consistency

determination only for those State

effects and policies that are not in

common. The second sentence in

subsection (e)(2) has been amended to

clarify this. As discussed in response to

comments on section 930.31, the CZMA

makes no distinction between Federal

agency activities that are local in scope

and those activities, regulations, and

plans, that are national or regional in

scope. Whether these national activities

are subject to consistency is based on

whether coastal effects are reasonably

foreseeable as a result of the activities.

NOAA has not added language

regarding additional information. Such

a circumstance is already addressed in

the regulations. Section 930.39

describes the content of a consistency

determination. If the information

required by section 930.39, in

conjunction with section 930.36(e), is

not provided, then the Federal agency

has failed to submit a complete

consistency determination and, thus,

the 60-day State agency review period

has not started and will not start until

the information is provided. To require

separate consistency determinations

under this section would defeat the

purpose of this section.

Section 930.37(c) is moved to section

930.36(d) and amended to clarify that

phased consistency determinations

refers to development projects and

activities. Section 930.37 clarifies

coordination of consistency with the use

of NEPA documents to address

consistency requirements. Federal

agencies are not required to address

consistency requirements in NEPA

documents, but may use NEPA

documents, at the Federal agency’s

discretion, as an efficient and effective

mechanism to address the consistency

requirements. The use of NEPA

documents for consistency purposes

does not, however, mean that a NEPA

document necessarily satisfies all

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77139

consistency requirements. The Federal

agency must still comply with the

applicable sections in 15 CFR part 930,

subpart C. Section 930.37 provides

flexibility for States and Federal

agencies to agree to different NEPA/

consistency review procedures.

Coordination between States and

Federal agencies on federal consistency

requirements should occur at an early

stage, usually at the draft environmental

impact statement (EIS) stage, and before

the Federal agency reaches a significant

point in its decision making and while

the Federal agency still has discretion to

modify the activity. A final EIS is a

significant point in an agency’s decision

making and further modifications are

much harder to do and require more

resources. It is more efficient and in

keeping with the intent of consistency

for State agencies and Federal agencies

to coordinate at the draft EIS stage.

Arrangements should be made to do

supplemental consistency reviews in

case the project substantially changes in

the final EIS or Record of Decision.

Several commenters noted how useful

this section will be regarding NEPA and

CZMA coordination. One commenter,

however, asserted that the section is

flawed and is contrary to NEPA. NOAA

disagrees.

NOAA has not added language to the

rule regarding when to do consistency

reviews in conjunction with NEPA, as

many Federal agencies and States earlier

commented that they want the

flexibility to work out the timing of

consistency and NEPA among

themselves. Thus, the discussion above

regarding draft EIS documents remains.

This section is not flawed, and in fact,

is consistent with and complements

NEPA and CEQ’s regulations. The CEQ

regulations referred to in the comment

discuss integrating NEPA, not the

CZMA, into a Federal agencies decision

making process. In addition, NEPA and

the CZMA have different ‘‘effects tests.’’

Thus, it may be that a NEPA document

may not contain needed CZMA

information or that a conclusion

regarding effects for NEPA purposes

will not satisfy the CZMA effects test.

What this section does do is encourage

government efficiency and reduce

paperwork by specifically encouraging

Federal agencies to use NEPA as a

vehicle to address all CZMA

consistency issues, as well as NEPA

issues in the same environmental

review document.

Section 930.38. One State asked if

program changes, including additions to

management programs through the

incorporation of a State’s Coastal

Nonpoint Program, applies to this

section. NOAA’s response is that all

enforceable policies that become part of

a management program through

program changes, including the program

change process for Coastal Nonpoint

Programs, apply for federal consistency

purposes once approved by NOAA.

Section 930.39(a) is amended to

clarify that the Federal agency’s

evaluation of the management program’s

enforceable policies is included in the

consistency determination, and that the

Federal agency’s consistent to the

maximum extent practicable

justification accompanies the

consistency determination, if the

Federal agency is aware that its activity

will not be fully consistent with the

management program’s enforceable

policies. Section 930.32(a)(2) already

requires a written justification to the

State agency describing the legal

impediments to full consistency. The

State agency needs to know this

information as soon as the Federal

agency is aware of an inconsistency.

Thus, when a Federal agency knows

that it is not fully consistent prior to

issuing its consistency determination, it

should provide its justification to the

State agency as part of its consistency

determination. There are times,

however, when the Federal agency

believes it is fully consistent and does

not learn that it is not fully consistent

until after submittal of the

determination. In such cases the Federal

agency needs to provide its justification

to the State agency as soon as it learns

of the activity’s inconsistency, in any

event before the end of the 90-day

period. The last sentence in subsection

(a) is derived from the last sentence of

former section 930.34(a). One Federal

agency commented that this section

should allow for the Federal agency’s

evaluation of enforceable policies in

documents accompanying the

consistency determination. NOAA

agrees. The evaluation of relevant

enforceable policies requires that the

State agency identify those policies

upon request. The regulations already

allow a Federal agency to provide its

determination in any manner it chooses.

Thus the evaluation could be in an

accompanying NEPA document if the

document was provided to the State

agency along with the consistency

determination. The section has been

amended to more clearly address this.

Section 930.39(b) is amended to

conform to CZARA. Federal agencies are

responsible for evaluating the

consistency of nonassociated facilities

or any other indirect effects if the effects

are reasonably foreseeable. The last

clause is deleted since it is inconsistent

with CZARA and the effects test and is

covered under the proposed new

definition of effects. One Federal agency

commented that this section incorrectly

expands the consistency requirement to

the effects of activities. Consistency is

based on the effects of Federal agency

activities. Thus, there is no expansion of

consistency beyond the statutory

requirement. If a Federal agency did not

consider the effects from its activity,

there would be no basis on which to

make its consistency determination or

negative determination. The last clause

is deleted since it is inconsistent,

perhaps redundant, with the coastal

effects definition, particularly the

clarifications made by CZARA. While

the CZMA does not confer upon Federal

agencies jurisdiction to regulate

activities beyond that granted to the

Federal agency by its authorities, under

the CZMA ‘‘effects test’’ Federal

agencies are responsible for evaluating

the consistency of nonassociated

facilities or any other indirect effects if

coastal effects are reasonably

foreseeable. This is now more

appropriately covered under the new

definition of effects contained in section

930.11(g).

The last sentence of section 930.39(c)

is deleted, because it is redundant with

the rest of section 930.39(c). One

Federal agency commented that

adequate consideration is vague. NOAA

has deleted ‘‘adequate’’ as the word is

vague and ‘‘consideration’’ provides

sufficient guidance to Federal agencies

regarding non-enforceable policies. By

definition, a Federal agency does not

have to be consistent with nonenforceable policies, but, hopefully, will

at least consider such policies and

satisfy the policies if possible. If a

management program does not have an

applicable enforceable policy, then the

Federal agency need not evaluate any

corresponding coastal effects. However,

experience has shown that it is very rare

that a management program does not

have some applicable enforceable

policy, albeit a broadly applicable

policy.

Section 930.39(d) is amended to

clarify that if a Federal agency applies

its more restrictive standards, it must,

under the consistent to the maximum

extent practicable standard, notify the

State agency that it is proceeding with

the activity even though the more

restrictive federal standard may not be

consistent with the State standard.

Section 930.39(e) clarifies the

relationship between State permit

requirements and the federal

consistency requirements. Federal

agencies must obtain State permits

(including management program

permits) when required by Federal law

(other than the CZMA). For example,

77140 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

the Clean Water Act (CWA) requires

Federal agencies to obtain State permits

and certifications that regulate and

control dredging and water pollution

within the navigable waters of the State.

See 33 USC §§ 1323, 1341, 1344(t);

Friends of the Earth v. Department of

the Navy, 841 F.2d 927 (9th Cir. 1988).

However, in some instances, there may

be an issue as to the scope of a State or

local permit that a Federal agency is

required to obtain by another federal

law. To insure that such a requirement

is ‘‘not enlarged beyond what the

language [of the federal law] requires,’’

Department of Energy v. Ohio, 503 U.S.

607 (1992), citing, Eastern

Transportation Co. v. United States, 272

U.S. 675, 686 (1927), and to minimize

conflicts in situations where the scope

of the State permit requirement is an

issue, Federal agencies or States should

consult with the U.S. Department of

Justice on the scope of the federal law.

When a Federal agency is not required

to obtain a State permit, the Federal

agency must, pursuant to the CZMA,

still be consistent to the maximum

extent practicable with management

program enforceable policies, including

the standards that underlie a State’s

permit program.

Section 930.40 is amended to simplify

the reference to section 930.39, by

deleting subsections (b) and (c) and

adding a reference to section 930.39 at

the end of section 930.40.

Section 930.41(a) and (b) is amended

to simplify terms used in these

regulations, extend the time for State

agency review of consistency

determinations from 45 to 60 days, and

clarify that State agency objections must

be received by the last day of the 60-day

review period (or last day of an

extended period). Presently, a State

response to a Federal agency’s

consistency determination is either an

agreement or disagreement, and a State

agency’s response to an applicant’s

consistency certification for a federal

license or permit activity is either a

concurrence or an objection. The

difference is largely semantic and

confusing. Thus, all State responses to

any consistency determination or

certification are now either a

concurrence or an objection. The intent

of the change regarding the State

agency’s response is to clarify when the

Federal agency may presume

concurrence.

The time period for a State agency’s

response to a consistency determination

would be increased from 45 days to 60

days to allow States to provide adequate

public participation as required by

CZMA § 306(d)(14) (added in 1990 by

CZARA). Federal agencies must provide

consistency determinations to State

agencies at least 90 days prior to federal

action. CZMA § 307(c)(1)(C). Currently,

NOAA regulations require States to

respond within 45 days of receiving the

determination. Section § 930.41(a). If a

State needs more time, a Federal agency

must allow one 15-day extension.

Section 930.41(b). These regulatory

requirements were promulgated prior to

the addition of CZMA § 306(d)(14).

OCRM’s Final Guidance implementing

CZMA § 306(d)(14) did not change these

requirements. 59 Fed. Reg. 30339. It will

be difficult for many States to meet the

public participation requirement under

State law and still respond within 45

days. The likely result of this new

requirement is that for most reviews of

consistency determinations, States will

need at least one 15 day extension,

resulting in at least a 60-day review.

Thus, in order for States to develop

meaningful public participation

procedures, and to provide greater

predictability for Federal agencies as to

when a State agency’s consistency

review will be completed, NOAA has

provided States with a 60-day review

period (extension provision remain the

same). This should alleviate the

inconsistency between current

regulations and the CZMA § 306(d)(14)

requirement. The total time allowed

before a Federal action may commence

(90 days) does not change.

Two Federal agencies and one interest

group commented that they disagree

with extending the State agency’s

response time to 60 days. One Federal

agency commented that responses

should be received by the last day and

not postmarked. Several States

commented on the wording of the

section related to ‘‘postmarked’’ as

provided for in the proposed rule.

NOAA agrees that using ‘‘postmarked’’

may create confusion and will not

provide the notification deadline that is

needed for consistency reviews and

which are contemplated by the statute

and which has been the long-standing

interpretation of the existing

regulations. By statute, there must be a

date whereby concurrence can be

presumed. NOAA also agrees that the

use of fax machines and email make it

much easier for the State agency to send

its response, and the Federal agency to

receive it by the deadline. This change

is also reasonable given the longer State

agency review period for Federal agency

activities. Thus, NOAA has changed

‘‘postmarked’’ to ‘‘receipt’’ in sections

930.41(a), 930.62(a), 930.78(b) and

930.155(d).

NOAA does not believe that the

reduction in time between a State

agency’s response and the end of the 90-

day period will substantially alter any

necessary discussions between the State

and the Federal agency. Experience

shows that States and Federal agencies

usually know before a State response if

there is a problem. Usually a Federal

agency will delay starting its activity

past the 90 days to try and reach

agreement with the State. If the Federal

agency cannot do this, and it is

consistent to the maximum extent

practicable, then it can proceed at the

end of the 90-day period.

The word ‘‘immediately’’ is retained

since the Federal agency is under the

impression that the 60-day review

period has begun and needs to know as

soon as possible if its determination and

accompanying information is not

complete. Even two weeks may be too

long a time. There should not be a

problem with networked management

programs, as a completeness review is

minimally substantive and should just

be making sure the information required

by section 930.39(a) is included. The

information may not have everything

the State wants, but that is not what is

required by section 930.39(a) to start the

review period.

Section 930.41(c) is amended to

clarify that the 90-day period begins

when the State agency receives the

determination and that Federal agency

action cannot commence prior to the

end of the 90-day period unless the

State agency concurs or the Federal

agency and the State agree to a shorter

period.

Section 930.41(d) is added to clarify

that States cannot unilaterally place an

expiration date on their concurrences.

States must decide if they can concur

with a consistency determination absent

an agreement on time limits. One

Federal agency commented that the

language of the section is vague. States

commented that the section may not be

necessary and could be covered by

section 930.4 (conditional

concurrences). The word

‘‘modifications’’ has been inserted to

clarify that a later action involving a

previously reviewed activity could be a

later phase or a modification. A crossreference to supplemental consistency

determinations under section 930.46 is

also added.

There are several reasons why time

limits are not acceptable. First, the

CZMA requires a Federal agency to

provide a consistency determination 90

days before final Federal agency

approval. CZMA § 307(c)(2). The CZMA

does not allow States to re-review the

same activity. Second, State consistency

decisions and objections must be based

on the enforceable policies of a State’s

management program. A time limit on a

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77141

State’s concurrence would be based on

the possibility that the activity or the

State’s program would change and not

on enforceable policies, as required by

the CZMA. Further, State agencies and

Federal agencies may agree to a time

limit for a State’s concurrence,

including concurrences for de minimis

activities and general determinations.

The CZMA does, however, require

Federal agencies to carry out each

activity in a manner that is consistent to

the maximum extent practicable with a

State’s enforceable policies. Thus, if a

project substantially changes between

the time that the State reviews the

activity and when the activity begins,

the Federal agency must provide a new

or supplemental consistency

determination since the State would not

have had the opportunity to review the

‘‘new’’ activity. This is precisely the

situation section 930.46 is designed to

address. Section 930.46 only applies to

previously reviewed activities that have

not yet begun and the coastal effects are

substantially different then as originally

reviewed by the State agency.

Regarding the use of a conditional

concurrence under section 930.4 to

impose time limits, the CZMA only

authorizes one bite of the consistency

apple for any particular Federal agency

activity. It is a basic consistency

requirement that Federal agencies

provide consistency determinations for

proposed activities and the States

review the activity based on the

information available at that time. If an

activity later substantially changes, the

Federal agency may have to provide a

supplemental or a phased consistency

determination. A conditional

concurrence, therefore, cannot be used

to provide for subsequent review of the

same activity. For the same reasons a

‘‘time’’ condition would also be

inconsistent with the CZMA. That is

why a State should object rather than

issue a conditional concurrence. Thus,

NOAA has not cross-referenced section

930.4. If a State agency does issue a

conditional concurrence with a time

limit, and the Federal agency does not

agree, the conditional concurrence

automatically becomes an objection. It

may also be that the objection would be

invalid unless the time limitation had a

basis in an enforceable policy. Under

the proposed section 930.41(d), a State

agency and a Federal agency may agree

on a time limitation. The proposed

section 930.41(d) provides for instances

where a project changes or the effects

change.

Section 930.41(e) clarifies that a State

agency may not assess the Federal

agency with a fee for the State’s review

of the Federal agency’s consistency

determination, unless such a fee is

required under federal law applicable to

that agency. One State commented that

fees should be allowed. NOAA

disagrees. The CZMA does not require

Federal agencies to pay processing fees.

OCRM cannot require such fees by

regulation. Thus, States cannot hold up

their consistency reviews or object

based on a failure by a Federal agency

to pay a fee. Such a requirement would

require a change to the CZMA itself, or

other federal laws. This is beyond the

scope of these revisions to the

regulations.

Section 930.42 is moved to section

930.43. New section 930.42 details the

public participation requirement for

Federal agency activities. Public

participation for a State’s review of a

Federal agency’s consistency

determination is required by CZMA

§ 306(d)(14). See NOAA’s final guidance

on this requirement, 59 Fed. Reg. 30339.

The statutory section requires that ‘‘[t]he

management program provide for public

participation in permitting processes,

consistency determinations, and other

similar decisions.’’ Proposed section

930.42 is sufficiently broad to give

States flexibility in developing public

participation procedures that meet the

intent of § 306(d)(14). NOAA reviews

each State’s procedures during regularly

scheduled evaluations of management

programs under CZMA § 312 for

compliance with the public

participation requirement under

§ 306(d)(14), and will recommend

procedural changes if necessary to meet

proposed section 930.42. The purpose of

the requirement is to provide the public

with an opportunity to comment to the

State agency on the program’s review of

a federal activity for consistency with

the enforceable policies of a

management program, in addition to

commenting on the activity itself. Thus,

a Federal agency cannot be required to

publish or pay for the notice.

A number of States commented that

electronic public notices, including web

sites, should be acceptable public

notice. Other States had various

comments on notice in remote areas, the

Federal agency providing names and

addresses of interested persons, notice

for the affected area, and joint notices.

The environmental groups commented

that electronic notices should not be a

procedural option. Electronic notices

cannot be the only form of public notice

used. Many people do not yet have

ready access to a computer or the

Internet. Thus, the regulations have

been clarified to exclude electronic

notices as the sole notice. They can be

used in conjunction with other notices.

Electronic means can also be used as the

source of additional information since

people can use public libraries and

other facilities that have Internet access.

In very rural areas where there are no

local papers or access to State gazettes,

etc., the State will have to use its best

judgement as to how to adequately

notify the public. In remote areas of

Alaska, this may mean posting a notice

in a Post Office or other public area. The

current regulations allow this flexibility.

Federal agencies are under no obligation

to fulfill the requirements of this section

regarding public comment on the State’s

review of a consistency determination.

Thus, the Federal agency is under no

obligation to provide names of

interested parties as this may result in

an expectation, and demand, that the

Federal agency do so. NOAA has

changed ‘‘in the area’’ to ‘‘for the area’’

as ‘‘for’’ is broader and provides the

State with flexibility for providing

adequate public notice, as suggested in

the comment. However, NOAA

reiterates that electronic notice cannot

be the sole method of notice to the

public. NOAA has included the

language encouraging joint notices as

this would not impose an additional

burden on the Federal agency, and if

used, should be a more efficient use of

Federal and State resources.

Section 930.42(a) is re-designated as

section 930.43(a) and amended to clarify

that State objections must be based on

the enforceable policies of an approved

management program and that the

objection letter must describe and cite

the enforceable policies, and must state

how the federal activity is inconsistent

with the enforceable policy. This

section also clarifies that the

identification of alternatives by the State

is optional, but that State agencies

should describe alternatives, if they

exist.

Sections 930.43, 930.63(b) and (d).

One Federal agency commented that the

mandatory nature of the current

regulations regarding the identification

of alternatives by the State agency be

retained. Two commenters said that it is

not clear what happens when an

applicant adopts a State alternative.

Several States commented that States

should not have to re-design a project

through describing alternatives.

While identifying alternatives is

useful to States, Federal agencies and

applicants, the CZMA does not require

that States identify alternatives. The

optional nature of alternatives was

recognized in the previous regulations

by the phrase ‘‘(if any)’’ and is necessary

since the identification of an alternative

does not remove the State agency’s

objection. An applicant would always

have to go back to the State agency to

77142 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

have the State agency remove the

objection to allow Federal agency

approval (unless the applicant appealed

the State agency’s objection to the

Secretary). NOAA also agrees that State

agencies should not be responsible for

the design of a project, although States

should describe alternatives with

sufficient specificity to demonstrate

their reasonableness. The regulations

recognize this in section 930.63(d) by

having the applicant determine its

alternative options ‘‘in consultation

with the State agency: * * *’’ This

would allow the State agency to

describe an alternative, but would still

require the applicant to ‘‘design’’ the

alternative and to consult with the State

agency on whether the altered project

was consistent. Then, when an

applicant adopts a consistent

alternative, the State would remove its

objection and the Federal agency could

approve the activity so long as the

approval was consistent with the

alternative agreed to between the State

and the applicant.

Section 930.43(d) clarifies that, in the

event of a State objection, the remainder

of the 90-day period should be used to

resolve differences and that Federal

agencies should postpone agency action

after the 90-day period, if differences

have not been resolved. It also clarifies

that, notwithstanding unresolved issues,

after the 90 days a Federal agency may

only proceed with the activity over a

State’s objection if the Federal agency

clearly describes, in writing, the federal

legal requirements that prohibit the

Federal agency from full consistency.

Several Federal agencies commented

that language contained in the proposed

rule regarding Federal agency

obligations when the Federal agency

asserts it is fully consistent was

unworkable and not consistent with the

statute. Several States commented that

clarifying language was needed

regarding when and how the Federal

agency should submit its consistent to

the maximum extent practicable

justification. Two States commented

that mediation should be required if

there is a dispute and before the Federal

agency proceeds with the activity. One

State commented that the section

should include a statement that the

State may institute legal action if not

satisfied with the Federal agency’s

response. The environmental groups

commented that a Federal agency

should not be able to proceed with an

activity over a State’s objection.

NOAA understands that there may be

disagreements between a State agency

and Federal agency as to whether a

Federal agency is fully consistent with

a management program’s enforceable

policies. This is particularly

problematic where the State’s policy is

broadly worded. A Federal agency

activity that is fully consistent and has

met the consistency requirements

should be able to proceed with the

activity. A State agency may object

based on its interpretation of its

policies. In such cases, the State may be

requiring consistency for an

interpretation that is not set forth in the

enforceable policies. This does not make

the enforceable policy invalid, but it

does create a factual issue regarding full

consistency. In such cases, mediation

may resolve the matter, or an MOU

developed, as was the case between

Alaska and the Forest Service. If this

does not work, and the Federal agency

elects to proceed with the activity after

90 days, then the State may choose to

litigate the question of whether the

Federal agency is in fact fully

consistent. The section has been

modified accordingly.

In response to one comment, NOAA

agrees that it is the ‘‘Federal agency’s

belief’’ that it is consistent that controls

its action, and has addressed this

comment by including the phrase: ‘‘the

Federal agency has concluded * * *’’

NOAA has also added a reference to the

new language in section 930.39(a),

requiring that the Federal agency’s

consistent to the maximum extent

practicable justification be included in

the consistency determination if the

agency is aware that its activity will not

be fully consistent at the time the

determination is submitted to the State

agency.

The use of the word ‘‘cannot’’ and the

use of the suggested ‘‘can’’ may both

cause misunderstanding. The intent of

section 930.43(d) is to provide an

appropriate mechanism for the Federal

agency to examine whether it is

prohibited by law from acting in a

manner consistent to the maximum

extent practicable. To be absolutely

clear in this very important, and much

discussed section, NOAA has not used

‘‘can’’ and has replaced the word

‘‘cannot’’ with specific language from

the consistent to the maximum extent

practicable standard in section 930.32.

Mediation under the CZMA and

NOAA’s regulations is optional and

non-binding. NOAA cannot, by

rulemaking, require a Federal agency to

enter into mediation. Likewise, if a State

requests mediation, the Federal agency

is not required to participate. As for

notice to the Federal agency regarding

possible State litigation, a State may

always sue a Federal agency under the

Administrative Procedures Act. It is not

necessary to place such language in this

section, although the regulations discuss

State enforcement, including legal

action, in the new section 930.5.

This section does not refute the basic

purpose of the federal consistency

requirement. A fundamental component

of federal consistency is that a Federal

agency, despite a State’s objection, may

proceed with a Federal agency activity

after the 90-day period, so long as the

Federal agency describes to the State

agency, in writing, the federal legal

requirements that prohibit the Federal

agency from being fully consistent with

the enforceable policies of the State’s

management program. Section 930.43(d)

clarifies this component of the CZMA

and existing NOAA regulations. As was

suggested by several commenters, the

CZMA federal consistency requirement

can be thought of as a limited waiver of

federal supremacy. (Under Article VI, cl.

2 of the U.S. Constitution, Federal law

is the supreme law of the land and State

law cannot interfere with the execution

of federal law. See McCulluch v.

Maryland, 17 U.S. (4 Wheat) 316 (1819).

Congress, as part of its legislative

powers, can limit the Federal

Government’s supremacy and sovereign

immunity.) The waiver of federal

supremacy in the CZMA is the

requirement to be consistent with State

management programs. The limits are

defined by the consistent to the

maximum extent practicable standard

and CZMA §§ 307(e) and (f). CZMA

§ 307(e) requires that the CZMA does

not supersede, modify or repeal existing

law. CZMA § 307(f) requires that the

CZMA shall not affect the pollution

control requirements of the Clean Water

Act or Clean Air Act. The CZMA

§ 307(c)(1) requires that federal

activities ‘‘be carried out in a manner

that is consistent to the maximum

extent practicable’’ with the enforceable

policies of a State’s management

program. The phrase ‘‘be carried out’’

implies that the activity may proceed.

The qualifier is that the activity must be

carried out in a manner consistent to the

maximum extent practicable with a

State’s enforceable policies. Further, the

statute expected that federal activities

could proceed after 90 days by stating

that Federal agencies provide a

consistency determination no later than

90 days ‘‘before final approval’’ of the

federal activity. Congress stated that it is

not anticipated that there will be many

situations where as a practical matter a

Federal agency cannot carry out its

activities without deviating from

approved management programs. H.R.

Rep. No. 1049, 94th Cong., 2d Sess. 19

(1972). Congress also found that there

may be instances where a Federal

agency activity cannot be conducted

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77143

fully consistent with a State’s

enforceable policies and may proceed

over a State’s objection. Id. It is

precisely this legislative intent that led,

in 1979, to NOAA’s regulations

requiring full consistency unless full

consistency is prohibited based upon

existing legal authority applicable to the

Federal agency’s operations. Deviation

from full consistency is allowed due to

unforeseen circumstances which

present a substantial obstacle preventing

complete adherence to the management

program. Further evidence of

Congressional intent regarding whether

a Federal agency activity may proceed

over a State’s objection is found in the

different language in the other CZMA

federal consistency sections. CZMA

§§ 307(c)(3)(A), (B), and 307(d) all

specifically prohibit a Federal agency

from issuing its approval or funding if

a State agency has objected. Because

Congress included such clear language

in these three other instances, it follows

that Congress intentionally excluded

this meaning from other sections, i.e.,

CZMA § 307(c)(1). If Congress intended

to require that a Federal agency activity

proceed only with State agency

agreement it would have said so.

The Presidential exemption contained

in CZMA § 307(c)(1)(B) does not support

the view that Federal agencies may not

proceed over a State’s objection. The

Presidential exemption was added to

address a situation where a State agency

disagrees with a Federal agency’s

consistency determination, resolution

by mediation is not likely, the State

agency sues the Federal agency, and the

Court finds that the activity is not in

compliance with a State’s enforceable

policies. In those instances, the

Secretary may request that the President

exempt the specific activity from

consistency if the President finds that

the activity is in the paramount interest

of the United States. The section was

added to be consistent with similar

extraordinary remedies of other federal

statutes and to reinforce the point that

no Federal agency activities are

categorically exempt from the

consistency requirement. Congress

would not have couched a requirement

that Federal agencies cannot proceed

over a State agency’s objection in an

elaborate Presidential exemption.

NOAA’s regulations further define the

long-standing interpretation that Federal

agencies may proceed with an activity

despite a State agency’s objection.

NOAA’s definition of consistent to the

maximum extent practicable requires

full consistency ‘‘unless compliance is

prohibited based on the requirements of

existing law applicable to the Federal

agency’s operations.’’ Section

930.32(a)(existing). This interpretation

is also supported by a comment to the

original regulations where NOAA stated

that ‘‘Federal agencies are encouraged to

suspend implementation of the activity

beyond the 90-day period pending

resolution of the disagreement.’’ Section

930.42(c) (44 Fed. Reg. 37149, Monday,

June 25, 1979) (emphasis added). Thus,

if a Federal agency asserts full

consistency is prohibited and describes

the legal authority which ‘‘limits the

Federal agency’s discretion to comply,’’

the Federal agency may proceed with

the activity at the end of the 90-day

period. Id.; Section 930.34(b) (existing).

Section 930.46 addresses the situation

where a proposed activity previously

reviewed, but not yet begun, will have

coastal effects substantially different

than originally described to the

management program. A similar section

is repeated at the end of subparts D and

F. See sections 930.66 and 930.101. Two

commenters said that the State agency

should be required to notify others

under subsection (b). Several other

States commented that there should be

a rebuttable presumption that a project

is subject to re-review if the project has

not commenced in 5 years. One

commenter asserted that this provision

would put offshore projects in a neverending loop of approval and should be

re-worked to reduce this uncertainty.

NOAA has not changed the rule,

based on these comments. If a proposed

project has substantially changed, and

the State has not reviewed the changes,

then it is a new project, and a new

consistency determination is required.

Since the consistency test depends on

whether coastal effects are reasonably

foreseeable, and not on the nature of the

activity, substantial new coastal effects

would also trigger the consistency

requirement. Thus, where an activity

has not started, substantial new effects

have been discovered, and the State has

not had the opportunity to review the

activity for consistency in light of these

effects, sections 930.46, 930.66 and

930.101 would require a supplemental

consistency determination or

certification. This is an affirmative duty

on the part of Federal agencies and

applicants. However, there may be times

when Federal agencies or applicants do

not provide supplemental consistency

statements. In such cases, subsection (b)

of these sections allow a State agency to

notify the Federal agency or applicant

that it believes that a supplemental

review is needed. Such notification is at

the State agency’s discretion, thus

‘‘may’’ is retained and ‘‘shall’’ is not

used. States may seek compliance

through negotiation, mediation or

litigation. This proposed section is

similar to NEPA requirements for

supplemental statements. See 40 CFR

section 1502.9(c)(1). NOAA expects that

this section will be little used, but

where it is used will eliminate

confusion as to the consistency process

and brings the regulations into

conformance with the changes made by

CZARA.

NOAA has not added a rebuttable

presumption that if a project has not

commenced within a certain amount of

time, it should be subject to re-review.

Time is not the issue here. The intent

of this section is not to give the State

agency a second bite at the consistency

apple, but rather, to give States the

opportunity to review substantial

changes in the project or foreseeable

coastal effects not previously reviewed

by the State.

Finally, NOAA rejects the argument

that supplemental review will create a

never-ending loop of approval. The

sections apply only to activities that

have not yet begun and which are

substantially different than that which

the State previously reviewed. Even

without these sections, Federal agency

activities meeting these two criteria

would be required to provide a new

consistency determination and for

license or permit activities, in many

cases applicants would provide a new

consistency certification since such

changes would require a modification to

the federal application that would

require consistency review. Regarding

offshore projects, a supplemental

coordination section is not added to

subpart E, since subpart E and the

regulations implementing the Outer

Continental Shelf Lands Act already

contain a detailed process for

supplemental consistency reviews when

OCS plans have substantially changed.

NOAA is not disturbing this existing

coordination between the two statutes.

Subpart D—Consistency for Federal

License or Permit Activities

Sections 930.50 and 930.51(a) are

amended to be consistent with the

statutory language referring to

‘‘required’’ federal license or permit

activities. A required federal approval

means that the activity could not be

performed without the approval or

permission of the Federal agency. The

approval does not have to be mandated

by federal law, it only has to be a

requirement to perform the activity. One

commenter suggested adding additional

effects language to section 930.50.

Additional effects language is not added

to this section, because effects are

defined in section 930.11(g), and apply

throughout the regulations when

discussing coastal effects.

77144 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

Section 930.51(a) clarifies that a

federal lease to a non-federal applicant,

e.g., to use federal land for a private or

commercial purpose, is a form of

authorization or permission under the

definition of federal license or permit,

with the exception of leases issued

pursuant to lease sales, e.g., under the

Outer Continental Shelf Lands Act,

which are Federal agency activities

under 15 CFR part 930, subpart C. One

Federal agency commented the

definition is extremely broad and that it

needs to clarify the application of this

subpart to OCS plans. The commenter

further states that the regulation seems

to ignore the importance of effects when

determining whether a federal license or

permit is subject to consistency. Finally,

this Federal agency comment argued

that OCS lease suspensions should not

be subject to consistency, and the

language regarding ‘‘lease sales’’ should

be clarified to distinguish lease sales

from leases. One State commented that

a ‘‘lease’’ is a form of approval

regardless of other applicable federal

approvals. One State and another

commenter suggested that ‘‘right-ofway’’ permits and ‘‘easements’’ be

added to the definition. One commenter

urged that a decision that no

consistency review will take place

should be subject to public comment.

The definition of license or permit has

been in place and well-understood for

over 20 years. In NOAA’s view, an

inclusive description of federal

approvals is necessary to implement

Congress’ intent that consistency apply

to all federal actions that have coastal

effects. The statute is clear that OCS

plans, and federal approvals described

in detail in such plans, are subject to

subpart E, and the section now states

this.

The term ‘‘federal license or permit’’

refers to any required federal approval.

Whether a license or permit activity is

subject to the consistency requirement

does depend on whether coastal effects

are reasonably foreseeable and which is

determined by NOAA either when the

State agency lists (see section 930.53) a

particular federal approval in its

management program or when a State

agency seeks to review an unlisted

activity (see section 930.54). The same

applies to OCS ‘‘lease suspensions.’’ As

stated in NOAA’s letter to the California

Coastal Commission, dated November

12, 1999, OCS lease suspensions are

federal license or permits under

NOAA’s regulations. However, NOAA

made no determination whether there

were coastal effects resulting from the

suspensions at issue and, thus, no

determination whether consistency

applied. If a State agency were to review

a lease suspension for consistency, the

State’s review would be limited to the

effects of the lease suspension itself and

any cumulative effects that may flow

from the suspension(s). Since a lease

suspension is not a renewal of the lease,

the State could not review the

underlying lease. When requesting a

suspension, a lessee is not requesting a

re-leasing approval, and MMS does not

re-evaluate the lease when granting or

directing a suspension. If a lease were

to terminate and MMS were to ‘‘release’’ the tracts, then the re-leasing

would be subject to consistency under

CZMA § 307(c)(1).

In NOAA’s November 12, 1999, letter,

NOAA concluded that as a general

matter, lease suspensions do not affect

coastal uses or resources and do not

generally authorize activities to occur

during the suspension period that can

be reasonably expected to affect coastal

uses or resources. Therefore, it is highly

unlikely that NOAA would approve the

listing of lease suspensions in a

management program as a federal

license or permit subject to consistency,

or approve a State agency’s request to

review a lease suspension as an unlisted

activity. In determining whether to

approve the review of a lease

suspension as an unlisted activity,

NOAA would examine the effect of the

lease suspension in extending the term

of the lease or postponing the coastal

effects of the OCS activities to a point

in time in the future or such other

effects as are reasonably foreseeable

from granting of the lease suspension(s).

This effects test must be met by the

State agency submitting a request to

review the lease suspension(s) as an

unlisted activity. NOAA cannot

completely rule out the possibility that

a lease suspension or set of lease

suspensions could affect the uses or

resources of a State’s coastal zone, and

thus the CZMA bars NOAA from

categorically exempting suspensions

from consistency. NOAA also believes

that OCS lease suspensions could be

removed from possible State agency

review under subpart D, if MMS were to

describe the expected universe of lease

suspensions in detail in the OCS plans.

In the alternative, specific suspensions

can be addressed between lessees, MMS

and coastal States as it was in the

Memorandum of Understanding

between MMS, Mobil and the State of

North Carolina. See Appendix I, at I–3,

Final Environmental Impact Report on

Proposed Exploratory Drilling Offshore

North Carolina, August 1990. If MMS

were to do this, then a State agency

concurrence in an OCS plan under

subpart E, would also include

concurrence of any lease suspensions

granted for the expected reasons

described in the OCS plans.

It is not correct to say that OCS

activities are not subject to subpart D. It

is correct that OCS plans, and federal

licenses or permits described in detail

in OCS plans, are subject to subpart E.

However, subparts D and E are

intertwined, as provided for in the

statute (CZMA § 307(c)(3)(B)) which

subjects subpart E reviews to CZMA

§ 307(c)(3)(A). Thus, OCS plans and

licenses or permits described in detail

in the plans are subject to subpart E,

except for some information/procedural

items. OCS related federal license or

permits not described in detail in OCS

plans are subject to subpart D and lease

sales themselves are subject to subpart

C.

NOAA agrees that the relationship of

‘‘leases’’ and ‘‘lease sales’’ could be

clearer and has clarified that the term

lease does not include leases issued

pursuant to OCS lease sales. NOAA also

agrees with the comment that leases that

are federal license or permits as defined

in this section are federal approvals

regardless of whether there are other

federal approvals required and has

deleted the language referring to other

approvals.

Rights of way and easements are not

specifically included as the definition is

sufficiently broad to cover these actions

if they are ‘‘required federal approvals.’’

A State agency can always list specific

approvals in its management program.

Public participation is not added for a

decision that consistency review will

not occur. A decision that consistency

will not occur, either because there are

no coastal effects, there is no federal

application, or there is no required

federal approval, means that the CZMA

consistency provision does not apply,

and public review is not mandated.

Section 930.51(b)(2) is amended to

clarify that ‘‘management program

amendments’’ as used in this section

means any program change, i.e.,

amendment or routine program change,

approved by OCRM under 15 CFR part

923, subpart H.

Section 930.51(c) clarifies that a major

amendment is not a minor change to a

previously reviewed activity, but a

change that affects any coastal use or

resource in a way that is substantially

different than effects previously

reviewed by the State agency. One State

commented that the section as proposed

did not apply the definition of major

amendment to all contexts used in

subsection (b). NOAA agrees that the

definition of major amendment needs to

apply to all three cases under subsection

(b), and has made this change.

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77145

Section 930.51(d) clarifies that a

‘‘renewal’’ includes subsequent reapprovals, issuances or extensions.

Administrative extensions that are

required must be treated like any other

renewal or major amendment.

Otherwise, some activities that should

obtain a renewal continue to operate for

years under administrative extensions.

These activities may have coastal effects

that have not been reviewed by

management programs and which need

to be consistent with a State’s

enforceable policies. These activities

are, in a sense new activities. Renewals

cannot be used to negate the consistency

requirement.

Section 930.51(e) describes some

parameters for how the determination of

major amendments, renewals and

substantially different coastal effects in

section 930.51 shall be made. Whether

the effects from a renewal or major

amendment are substantially different is

a case-by-case factual determination that

requires the input from all parties.

However, a State agency’s views should

be accorded deference to ensure that the

State agency has the opportunity to

review coastal effects substantially

different than previously reviewed.

Section 930.51(f) clarifies the

ramifications to the consistency process

when an applicant withdraws its

application for a federal approval or if

the approving Federal agency stays the

application review process. If the

applicant withdraws its application,

then the consistency process stops

(since there is no longer a federal

application to trigger consistency). If the

applicant re-applies, then a new

consistency review is required.

Likewise, if the Federal agency stays its

proceeding, then the consistency review

process will be stayed for the same

amount of time. This will avoid

confusion as to what the consistency

review period is in these cases.

Section 930.52 is amended to add to

the definition of ‘‘applicant’’ applicants

from other nations for a United States

required approval, and applicants filing

a consistency certification under the

proposed general permit consistency

process under section 930.31(d).

Regarding other nations, the CZMA

requires any applicant for a required

federal license or permit to certify

consistency with management

programs. There may be instances

where a foreign company or individual

must obtain a United States approval.

Two commenters want subpart D to

apply to Federal agencies applying for

federal permits. Federal agency

activities are not subject to CZMA

§ 307(c)(3) requirements. The CZMA is

clear: Federal agency activities are

subject to CZMA § 307(c)(1). CZMA

§ 307(c)(3) applies to non-federal

applicants for federal permits or

licenses. Congress declared that CZMA

§§ 307(c)(3)(A) and (B) and 307(d)

‘‘govern the consistency of private

activities for which federal licenses or

permits are required’’ and that the 1990

CZMA changes do ‘‘not alter the

statutory requirements as currently

enforced under [the CZMA]. These

requirements are outlined in the NOAA

regulations (15 CFR 930.50–930.66) and

the conferees endorse this status quo.’’

Conference Report at 971–72 (emphasis

added).

Section 930.53(a) is removed. Thirtythree of the thirty-five eligible coastal

States have federally approved

management programs and the

remaining two States are in the process

of developing a management program.

Thus, this section is no longer

necessary. Also, federal involvement in

the identification of federal activities is

addressed in the program development

regulations. See section 923.53.

Section 930.53(b) is moved to section

930.53(a).

Sections 930.53(a)(1) and (2) are

added to clarify the review of listed

federal license or permit activities

occurring outside of the coastal zone.

The geographic location requirement is

a means of notifying applicants and

Federal agencies of activities with

reasonably foreseeable coastal effects

and are, subject to consistency review.

The most effective way for a State to

review listed activities outside the

coastal zone is to describe the

geographic location of a State’s review.

States are strongly encouraged to modify

their programs to include a description

of the geographic location for listed

activities occurring outside the coastal

zone to be reviewed for consistency.

This section also codifies existing

administrative policy that treats listed

activities outside the coastal zone (for

which a State has not described a

geographic location), and listed

activities outside a geographically

described location, as unlisted activities

under this subpart. (Because a State’s

coastal zone boundary is a geographic

location description, Federal lands

located within the boundaries of a

State’s coastal zone are sufficiently

described for federal license or permit

activities occurring on those federal

lands.)

Section 930.53(b). Several States

commented that listing should not be

required for general concurrences. One

State commented that the relationship

between general concurrences and

federal general permit programs is not

clear. The environmental groups

commented that ‘‘minor’’ is not defined.

One commenter asserted that general

concurrences are misused by States and

cumulative impact studies should be

done with public comment and should

be re-reviewed every three years.

NOAA has not changed the listing

requirement. General concurrences are

encouraged as a matter of administrative

convenience and for more efficient

consistency reviews of minor activities.

If a State agency chooses to develop a

general concurrence, applicants for the

federal approval must be notified of the

general concurrence. Since the general

concurrences are tied to the federal

license or permit activities listed in the

management program, the State’s list is

an effective place to provide notice of

the general concurrences. The

regulations recognize that these minor

activities can have cumulative effects

and that the State agency can develop

conditions allowing concurrence for

such activities. The section already

requires that prior to developing a

general concurrence, the State agency

provide for public notice and comment

pursuant to section 930.61. This section

does not affect the Nationwide permit

program or other federal general permits

(unless the State agency chooses to

adopt a general concurrence for federal

approvals under these programs). The

promulgation of federal general permit

programs is a Federal agency activity

and is not affected by this section.

Sections 930.53(c), (d) and (e) are

moved to sections 930.53(b), (c) and (d),

respectively. The addition of sections

930.53(c)(1) and (2) clarify the

procedures for consultation with

Federal agencies and approval by the

Director. One Federal agency

commented that the State’s notification

to the Federal agency needs to

adequately describe the proposed

change in order for the Federal agency

to respond. NOAA agrees that the State

agency needs to describe what the

proposed change is, thus, the phrase

‘‘should describe’’ is changed to ‘‘shall

describe.’’

Section 930.54(a)(1) is amended to

clarify where State agencies should look

to monitor unlisted activities.

Specifically, draft NEPA documents and

Federal Register notices are key

documents State agencies should

review. This section also clarifies that

State agency notice should be sent to the

applicant, the Federal agency, and the

Director of OCRM. The term

‘‘immediately’’ has been deleted as there

is already specified a 30-day time period

in which to respond. Two commenters

believe this section should be clearer

regarding an ‘‘application’’ to a Federal

agency. One State commented that

77146 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

Federal agencies or applicants be

required to provide notice of unlisted

activities.

NOAA agrees that the language in

subsection (a)(1) is clear that the 30-day

time period for State agencies to notify

an applicant and the Federal agency is

notice of an application that has been

submitted. To make this perfectly clear,

NOAA has added clarifying language.

NOAA has not used the language in the

comment since that language could be

interpreted to require the State agency

to act within 30 days from the date of

the submission of the application, rather

than 30 days from notice of an

application that has been submitted. A

State should have the opportunity to

request review of an unlisted activity 30

days from receiving notice that an

application has been submitted and not

just 30 days from when the application

was actually submitted to the approving

Federal agency. Written notice is not

required, however, in subsections (a)(1)

or (2), because Federal agencies and

applicants are not under an affirmative

duty to notify the State agency unless

the federal license or permit is listed in

the management program. Such notice

is encouraged, but cannot be required.

Section 930.54(b) is amended to

clarify that the State agency’s

notification must also include a request

for OCRM approval and the State

agency’s analysis supporting its claim

that coastal effects are reasonably

foreseeable.

Section 930.54(c) is amended to

clarify that the Director’s decision

deadline may be extended by the

Director for complex issues or to

address the needs of one or more of the

parties. This codifies existing practice

which has been useful in resolving

issues often leading to the State agency’s

withdrawal of its request. One Federal

agency commented that an extension of

NOAA’s decision deadline be limited to

a specified time.

It is unnecessary to specify a time

frame for the Director’s decision since

the extensions, if any, may need to vary

in duration depending on the issues.

However, NOAA has added a sentence

requiring the Director to consult with

the State agency, Federal agency and

applicant prior to issuing any extension.

Also, the proposed revision states that

the Director shall notify the parties of

the expected length of the extension,

therefore a specified time frame will be

established for each extension.

Section 930.54(d). One commenter

believes that NOAA should not assess

coastal effects, but that States should do

so. NOAA does not agree. NOAA’s longstanding administrative process

implemented through these regulations

determines coastal effects for listed

activities or unlisted activities. Listed

activities are first approved by NOAA as

part of program approval or through a

program change. Once NOAA has

approved a federal approval as listed in

a management program, then effects are

assumed. If an activity is unlisted,

coastal effects must be determined, and

again, it is NOAA’s responsibility and

role to make such a determination.

Congress has endorsed this

implementation of the statute and all

parties, States, Federal agencies and

applicants rely on NOAA to ensure

consistency reviews occur only where

activities have coastal effects.

Section 930.54(f) provides applicants

and State agencies with the flexibility to

agree to forego the unlisted activity

procedure, have the applicant subject

itself to consistency, and expedite the

consistency process. This provision will

help to resolve coastal management

issues informally and avoid delays due

to disagreement over whether the

application should be subject to State

agency consistency review. One State

commented that a Federal agency and

State agency should be able to agree to

subject an unlisted activity to

consistency.

NOAA disagrees. The consistency

requirements in this subpart are for the

State agency, the Federal agency and

applicants. The listing requirement puts

all on notice that the listed activities are

subject to consistency and the State’s

review. Any other decision, outside of

the unlisted process, that would subject

an applicant to the consistency

requirement, would require agreement

by the applicant. The Federal agency

and State agency cannot subject an

applicant to consistency outside the

listed and unlisted procedures. A

Federal agency could notify the State

agency of an application for an unlisted

activity, and then the State agency could

initiate the unlisted activity process.

Section 930.56(b) is moved to section

930.58(a)(2). This will consolidate all

material on necessary data and

information in one section. The last

sentence of section 930.56 is added as

State agencies need to be able to identify

their enforceable policies and have an

obligation to identify the applicable

policies to Federal agencies and

applicants. Also, since many

management programs now contain

substantial numbers of enforceable

policies, it is more efficient and

effective if States can identify the

applicable policies to the applicants,

rather than the applicant having to pick

and choose from all the State policies.

Section 930.58 is modified to clarify

information requirements and to

consolidate language from other

sections. Subsection 930.58(a)(1)

(formerly section 930.56(b)) clarifies

that the necessary data and information

which applicants must provide to the

State agency may include State permits

or permit applications. One Federal

agency commented that subsections

(a)(1) and (a)(3) are duplicative and that

the section should specify what an

applicant should do if not satisfied that

there is not adequate protection against

disclosure of proprietary information.

Two States requested various wording

changes. One commenter believes that

subsection (a)(2) should be deleted

regarding State permits as necessary

data and information. One commenter

said that subsection (a)(2) and (c) should

be integrated.

Subsections (a)(1) and (a)(3) are not

duplicative. Subsection (a)(1) is

identifying coastal effects and (a)(3) is

an evaluation of effects in the context of

enforceable policies. Subsection (c)

allows applicants to disclose proprietary

information if the applicant is satisfied

that adequate protection against public

disclosure exists. There is no conflict

between subsections (a)(2) and (c)

regarding proprietary information since

(a)(2) is for ‘‘required’’ information and

proprietary information is not required.

NOAA has added language to

subsection (a)(3) to clarify that it is the

activity that must be consistent. These

sections do not require an applicant to

have all State permits. Management

programs can, however, require that an

applicant have the State permits in hand

as the issuance of a State permit is, for

some States, the means of demonstrating

that an applicant is consistent with the

underlying enforceable policies. States

that require State permits conduct the

federal consistency review at the same

time that the State permit is being

processed. This is not an obstacle as the

six month CZMA review period is still

in place.

Section 930.59. One commenter said

that this section should require ‘‘one

stop shopping.’’ The CZMA does not

require one-stop-shopping for

consistency. Also there are different

procedures for different federal and

State programs that may not lend

themselves to one-stop shopping. In

addition, some projects may be

complicated long-term projects and

information may not be available for

later phases. Thus, the later phases

would be subject to consistency at a

later date.

Sections 930.60(a)(1), (2) and (3)

clarify when the consistency time clock

may begin; the consequences of an

incomplete certification; and State

agency notice requirements to the

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77147

applicant and the Federal agency.

Where the applicant has submitted an

incomplete certification and the State

begins the consistency time clock, the

State agency cannot later stop the time

clock unless the applicant agrees.

Section 930.60(a)(2) requires State

agencies to notify the applicant and the

Federal agency of the date when

necessary certification or information

deficiencies have been corrected, and

the State agency’s review has begun.

Subsection (a)(3) allows States and

applicants to mutually agree to alter the

review time period.

One Federal agency commented that

‘‘certification or information

deficiencies’’ be replaced with ‘‘missing

certification or information’’ and that a

State agency should be able to

determine if information is missing in

15 days, not 30 days. One State

commented that a State agency and

Federal agency should be able to agree

to extend the six-month time period.

Another State commented that a State

should be able to stop the six-month

consistency time period. Several States

commented that this section should

address the issue of whether there is an

active federal permit application. One

commenter implied that under the

current regulations the Federal agency

determines completeness for

consistency and that this is changed in

the new rule.

NOAA agrees that subsection (a)(1)

refers to incomplete certifications or

information, and not the adequacy of

the information. Thus, ‘‘missing

certification or information’’ replaces

‘‘deficiencies.’’ NOAA believes that 30

days to determine completeness is

reasonable given a project’s complexity

and some programs may need to check

with networked agencies. This

completeness check does not extend the

six-month period, if submission is

complete. Because this subpart affects

applicants, the State agency and the

Federal agency cannot change the

review period without the applicant’s

agreement. The statute gives States six

months to review. States cannot

unilaterally stop, stay or otherwise alter

the review period without an

applicant’s agreement. See section

930.51(f) regarding Federal agency

acceptance and processing which

applies to ‘‘active’’ federal applications.

Current regulations do not allow the

Federal agency to determine

completeness for consistency review;

only the State agency can make such a

determination. If there is a

disagreement, the parties can consult

and seek mediation by NOAA. This is

not changed in the revised regulations.

Section 930.61. One Federal agency

commented that the rule should clarify

who is responsible for conducting a

public hearing. Two commenters offered

word changes regarding ‘‘reasonable.’’

Three States commented that electronic

notification should be allowed. The

environmental groups commented that

electronic notification should not be the

single form of notification. One

commenter encouraged NOAA to

require public hearings.

NOAA has specified that the State

agency is responsible for public

hearings and has inserted ‘‘reasonably’’

and removed ‘‘reasonable.’’ This change

is also made to section 930.78(a).

Electronic notification cannot be the

sole source of notification. This

restriction is added to this section. See

response to comments on section 930.42

for further discussion. The statute

clearly provides that State agencies have

the discretion to hold public hearings,

thus NOAA cannot require public

hearings. CZMA § 307(c)(3)(A).

Section 930.62 is deleted and part of

it moved to section 930.61(a). The

following section numbers in this

subpart are renumbered. One State

commented that NOAA should crossreference section 930.60(a)(3). Another

commenter encouraged NOAA to

shorten the six-month review period. A

cross reference is not needed and would

be redundant. NOAA cannot shorten the

six-month review period as it is set by

statute, CZMA § 307(c)(3)A).

Section 930.63(a) (redesignated as

section 930.62(a)) is amended to clarify

that a State agency’s objection must be

received before or on the last day of the

six-month review period.

Section 930.62(c). Two commenters

said that Federal agencies should delay

denying permits, rather than processing

permits. NOAA disagrees. The term

‘‘processing’’ is correct. While States are

conducting their consistency review,

Federal agencies can, and should,

continue processing the federal

application (but not approve) to avoid

prolonging the federal process if a State

concurs.

Section 930.62(d) is moved from

section 930.64(c). Two commenters said

to change ‘‘within three months’’ to

‘‘after three months.’’ Several States

commented that the three-month

notification may be constructive,

electronic, written or verbal.

NOAA has retained ‘‘within’’ three

months as it is required by CZMA

§ 307(c)(3)(B). NOAA has also left the

means of notification open as the State

agency needs only to be able to

document the actual notification. Notice

must actual, not constructive notice.

Section 930.63. One commenter

recommended that a local government

coastal agency be allowed to object to a

consistency certification, even if the

State agency does not object. NOAA

disagrees. Only the State agency can

implement the State’s federal

consistency program. See sections 930.6

and 930.11(o).

Section 930.64(b) (redesignated as

section 930.63(b)) is amended to clarify

that State agency objections must be

based on enforceable policies. Sections

930.63(b) and (d) are revised to clarify

that identification of alternatives is an

option for the State and to provide

requirements on descriptions of

alternatives if a State agency chooses to

identify them. These changes recognize

the fact that, even if an applicant

proposes to adopt a State agency’s

alternative, the Federal agency cannot

approve the project due to the State

agency’s objection. Thus, if an applicant

wants the federal approval the applicant

must consult with the State agency and

the State agency must remove its

objection, unless an applicant appeals to

the Secretary and prevails.

Section 930.64(c) (redesignated as

section 930.63(c)). One Federal agency

commented that a State should not be

able to object based on a lack of

information, where the information is in

addition to that required by section

930.58. NOAA disagrees. The

information required by section 930.58

is the information needed to start the

six-month review period. In most cases

this information will provide the State

agency with all information that the

State agency needs for its review.

However, the State agency may need

additional information regarding coastal

effects or the project’s design during the

period of the State agency’s review. This

information would allow the State to

determine whether the activity will be

consistent with the management

program’s enforceable policies.

Section 930.64(e) (redesignated as

section 930.63(e)) is amended to clarify

the notification of availability of the

Secretarial override process. Since a

concurrence with conditions may also

become an objection, a conditional

concurrence must also include similar

appeal language. One State commented

that this subsection refers to the CZMA

as opposed to the CZMA as amended in

1990. NOAA disagrees. A reference to

the ‘‘CZMA’’ is a reference to the

existing statute. It is unnecessary to

refer to various amendments.

Section 930.66 (redesignated as

section 930.65) is amended to provide

States with a more meaningful

opportunity to address instances where

the State agency claims that an activity

77148 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

once found consistent or not affecting

any coastal use or resource, is not being

conducted as originally proposed and

which will cause effects on a coastal use

or resource substantially different than

originally proposed. Previously, States

could only request that the Federal

agency take remedial action. If a Federal

agency does not take remedial action the

State agency can request that the

Director find that the effects of the

activity have substantially changed and

require the applicant to submit an

amended or new consistency

certification and supporting

information, or comply with the

originally approved certification. This

change mirrors the existing remedial

action section of subpart E (see section

930.86) and, like section 930.86, is not

expected to be used frequently.

However, the procedure exists to ensure

that federal license or permit activities

continue to be conducted consistent

with a management program.

Section 930.66 contains a

supplemental coordination for proposed

activities provision. See discussion of

section 930.46.

Subpart E—Consistency for Outer

Continental Shelf (OCS) Exploration,

Development and Production Activities

Section 930.75(b) is deleted as

redundant with the changes to section

930.76(b) and with section 930.58. One

commenter urged that a local

government coastal agency or a citizen

could identify additional enforceable

policies. NOAA disagrees. Only the

State agency can provide a consistency

response to an applicant, person or

Federal agency and only the State

agency can interpret the management

program’s enforceable policies,

including local government policies that

are part of the management program.

See sections 930.6 and 930.11(o). A

State agency can provide for public and

local government input into its

response.

Section 930.77 is deleted, because this

information is redundant with section

930.58, which is referenced in section

930.76(b). The rest of the sections in this

subpart are renumbered accordingly

(with additional minor changes, mostly

conforming with changes made in

subpart D). One Federal agency

commented that references to MMS

regulations should be updated and

noted that States should not be able to

object based on a lack of information

where the information is in addition to

that required by section 930.58. One

commenter recommended that a local

government coastal agency be able to

object.

The citations in section 930.77 have

been updated. The information required

by section 930.58 is the information

needed to start the six-month review

period. In most cases this information

will provide the State agency with the

information needed to complete its

review. However, additional

information may be needed regarding

coastal effects or the project’s design for

purposes of the State agency’s review.

Only the State agency can provide a

consistency response to an applicant,

person or Federal agency and only the

State agency can interpret the

management program’s enforceable

policies, including local government

policies that are part of the management

program. A State agency can provide for

public and local government input into

its interpretation or decision, but the

local government cannot make the

consistency decision. See also sections

930.6 and 930.11(o).

Section 930.78(b) is amended to

require that the State agency’s response

must be received within the six-month

response period.

Section 930.79(a). One Federal agency

and one other commenter noted that the

authority to require revisions to OCS

plans rest with the Secretary of the

Interior, not Commerce, through the

OCSLA. NOAA agrees that the OCSLA

and its implementing regulations

provide specific directives regarding

whether an amended plan is required

and whether a consistency review is

required for the amended plan.

Section 930.81. One Federal agency

commented that language from section

930.62 regarding Federal agency

processing should be repeated in

subsection (b). One commenter voiced

objection to ‘‘phasing’’ of OCS projects.

Repeating section 930.62 is not

necessary in this section since the

procedural requirements of subpart D

apply unless modified by subpart E. The

section provides for sufficient State

agency control of various OCS permits

to prevent unwanted ‘‘phasing’’ as

suggested by the comment. Thus, it is

reasonable and fair to allow a person to

obtain a permit with which the State

agency has concurred.

Section 930.82. One Federal agency

commented that the CZMA does not

authorize NOAA to require OCS plan

amendments. NOAA disagrees. This is

an existing regulatory requirement and

is mandated by the CZMA, CZMA

§ 307(c)(3)(B). Further, this section was

clarified by adding that an amended

plan is required, if the person still

intends to proceed with the activity.

Sections 930.83(b)–(e) (currently

section 930.84(b)–(e)) are deleted since

they are unnecessary and are replaced

by the new reference in revised section

930.83. One Federal agency commented

that the CZMA does not authorize

NOAA to require plan amendments.

One commenter recommended using a

six-month review period instead of

three months for plan amendments.

NOAA disagrees. This is an existing

regulatory requirement and is mandated

by CZMA § 307(c)(3)(B). Further, section

930.82 was clarified by adding that an

amended plan is required, if the person

still intends to proceed with the

activity. The three-month review period

is required by the CZMA, and cannot be

extended by rule to six months. See

CZMA § 307(c)(3)(B).

Section 930.85. One Federal agency

commented that the CZMA does not

authorize NOAA to require a new or

amended OCS plan. NOAA disagrees.

Unlike the previous section where this

comment was raised, section 930.82, the

CZMA specifically requires an

‘‘amended’’ or ‘‘new’’ plan be submitted

to the Secretary of the Interior. CZMA

§ 307(c)(3)(B). Section 930.85 is an

existing section that facilitates such an

occurrence.

Subpart F—Consistency for Federal

Assistance to State and Local

Governments

Section 930.94 is amended to clarify

that all federal assistance activities that

affect any coastal use or resource are

subject to the consistency requirement.

While the intergovernmental review

process is the preferred method for

notifying the State agency and for State

agency review, the intergovernmental

review process may not provide

notification for all federal assistance

activities subject to the consistency

requirement. Sections 930.94(b) and

930.95 provide methods to ensure

adequate notification and review, by

specifying a listed and unlisted

procedure. One State commented that

subsection (a) should clarify how this

subpart applies to applications for

programmatic funding. Two States

commented that the subpart should

clarify that a State can object for lack of

information. One Federal agency

commented that subsection (b)(2)

should be deleted, and subsection (b)(1)

amended to reflect State flexibility in

determining which Federal assistance

activities will be subject to consistency

through the listing procedure.

While it is not clear what the

distinction is between programmatic

and individual funding, the same

consistency requirements would apply:

effects test and consistency with

enforceable policies. The basis for State

agency objections under this subpart are

the same as that for subpart D, section

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77149

930.63, as referenced in section

930.96(b). NOAA agrees that subsection

(b)(2) be deleted and (b)(1) amended.

Section 930.94(c) is added to conform

to the statutory requirement that the

applicant agency provide an evaluation

of consistency with enforceable policies.

See CZMA § 307(d).

Sections 930.96(c)–(e) are deleted

since the reference to section 930.63 in

section 930.63(b) eliminates the need for

these subsections. Two commenters

recommended that the section clarify

that Federal agencies not delay

processing an application, ‘‘as long as

they do not approve’’ the application,

and that language regarding agreeing on

conditions may be out of date due to

section 930.4. One State commented

that a time period for State review needs

to be specified.

NOAA agrees that language should be

added so that Federal agencies do not

inadvertently approve funding pending

State agency decisions. Section

930.96(a)(2) is still applicable, even

with the addition of section 930.4. State

agencies, applicant agencies and Federal

agencies should always attempt to agree

on conditions that meet both State and

Federal requirements. This will provide

the applicant agency with greater

assurance of State and Federal approval.

NOAA agrees that section 930.98(b) is

redundant with section 930.97. Thus,

section 930.98(b) is deleted. CZMA

§ 307(d) provides that review periods for

federal assistance activities shall be

determined pursuant to State

intergovernmental review periods.

Thus, the regulations do not specify a

time period—that is left up to

individual State law.

The unlisted activity procedure in

section 930.98 follows the unlisted

activity procedures found at section

930.54, except that Director approval is

not required, because the State agency,

through its monitoring and review of

federal assistance activities, determines

if coastal effects are reasonably

foreseeable. Section 930.98(b) is deleted

as it is redundant with section 930.97.

Section 930.100 is amended to

provide States with more meaningful

opportunity to address remedial action

for previously reviewed activities. See

discussion of section 930.65.

Section 930.101 contains a

supplemental coordination for proposed

activities provision. See discussion of

section 930.46.

Subpart G—Secretarial Mediation

Only minor changes were made to

subpart G. Subpart G provides a process

for Federal agencies and coastal States

to request that the Secretary of

Commerce mediate serious disputes

regarding the federal consistency

requirements. Subpart G also provides

for more informal mediation by OCRM.

Both Secretarial mediation and OCRM

mediation require the participation of

both agencies and are non-binding.

Section 930.110. One commenter said

that including the word ‘‘negotiator’’

could be perceived as an advocate for

the Federal agency. NOAA has deleted

reference to ‘‘negotiation.’’ It was not

the intent of this language to change

NOAA’s role, but rather to refer to the

next section on informal negotiations.

However, to clarify NOAA’s mediation

role, ‘‘negotiation’’ is removed from

section 930.110, the title of section

930.111 is changed to ‘‘OCRM

mediation,’’ and the title of section

930.112 is changed to ‘‘Request for

Secretarial mediation.’’

Section 930.113(a). One commenter

said that public hearings should be

required for Secretarial mediation.

NOAA agrees. For Secretarial mediation

the CZMA requires that the Secretary

hold ‘‘public hearings which shall be

conducted in the local area concerned.’’

CZMA § 307(h)(2). Thus, the language

from the original regulations is retained.

Subpart H—Appeal to the Secretary for

Review Related to the Objectives of the

Act and National Security Interests

Pursuant to section 307 of the Act, no

Federal agency may issue a license or

permit for an activity until an affected

coastal State has concurred that the

activity will be conducted in a manner

consistent with the management

program unless the Secretary, on his

own initiative or on appeal by the

applicant, finds that the activity is

consistent with the objectives of the Act

or is otherwise necessary in the interest

of national security. Subpart H sets forth

the procedures applicable to such

appeals and the requirements for such

findings by the Secretary.

Changes were made to section

930.121(a) and (b) to ensure that the

Secretary overrides a State’s objection

only where the activity significantly or

substantially furthers the national

interest and that interest outweighs the

adverse coastal effects of the activity.

Several commenters noted that the

changes would improve the appeal

process. One commenter said that States

are not required to undertake

consistency reviews, and said that the

criteria needs to be changed so that the

Secretary is not substituting his

judgement for that of the State when no

compelling national interest is at stake,

and that there must be a strong

presumption in favor of upholding the

State’s decision.

NOAA agrees that changes to this

section are necessary to clarify the

criteria established for the Secretarial

override of State objections to

consistency certifications. However,

NOAA disagrees that the regulations

need wholesale revision. The CZMA

directs the Secretary to consider

whether an activity that a State has

determined to be inconsistent with the

enforceable policies of its management

program is nonetheless consistent with

the objectives of the CZMA or otherwise

necessary in the interest of national

security. An activity is consistent with

the objectives of the CZMA only if it

satisfies each of the three (previously

four) elements of section 930.121. The

Secretary’s review is an independent

assessment of the proposed activity and

whether the proposed activity meets the

objectives of the CZMA or is necessary

in the interest of national security. The

Secretary does not review the judgement

of the State agency other than to ensure

that the State’s objection was properly

made within the requirements of

subparts D, E, F and I. Although one of

the central goals of the CZMA is to

encourage State management of coastal

resources, the Secretary’s review is

available to ensure that proposals that

further the national objectives

articulated in the Act may be allowed to

proceed notwithstanding their

inconsistency with the enforceable

policies of a management program. See

also response to comment on section

930.3.

Section 930.121(a). Several States and

the environmental groups commented

that the phrase ‘‘one or more of’’ the

CZMA objectives is inconsistent with

the statutory language and is a mere

checklist approach resulting in the

appellant automatically satisfying this

element. The regulatory language

should refer to all the objectives. The

States also commented that subsection

(c) should be deleted. The States also

commented that the phrase ‘‘de

minimis’’ did not convey the

importance of having the Secretary

override a State’s objection only where

there is a national interest in the CZMA

objective being addressed. One Federal

agency commented that ‘‘de minimis’’

was confusing.

NOAA agrees with the majority of

commenters that Secretarial overrides

should occur only where a project

furthers the national interest in a

significant or substantial way. Congress

acknowledged a national objective in

the ‘‘effective management, beneficial

use, and development of the coastal

zone’’ and specifically chose the States

as the best vehicle to further this

national interest. CZMA § 302(a). The

77150 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

language and structure of §§ 302 and

303 make clear that Congress chose the

States, in partnership with the federal

government, to further the national

interest ‘‘to preserve, protect, develop

and where possible, to restore or

enhance, the resources of the Nation’s

coastal zone for this and succeeding

generations.’’ CZMA § 303(1). The

Secretarial review function is not

intended to upend the State

management structure by replacing the

State agency’s decision with the

Secretary’s, for projects which are

essentially local government land use

decisions and which do not

significantly or substantially further the

national interest in the CZMA’s

objectives. The purpose of the

Secretary’s review is to ensure that

projects which do significantly or

substantially further the national

interest in the CZMA’s objectives, and

where the national interest outweighs

impacts to coastal uses and resources,

may be federally approved

notwithstanding their inconsistency

with the enforceable policies of a

management program. NOAA

acknowledges the views of several

commenters that the application of

NOAA’s regulations has presented the

Secretary with proposed activities that,

while falling under the CZMA’s

objectives, did not significantly or

substantially contribute to the national

interest in the CZMA objectives. This

application of the regulations has

created the appearance that the

Secretary overlooked the intent of the

Act to support the States’ use of section

307 to require that federal license or

permit activities be consistent with

federally approved management

programs. The proposed rule attempted

to address this concern and the final

rule offers the further clarification

requested by all commenters.

The proposed rule introduced the

concept that a proposed activity have

more than a de minimis relationship to

the national objectives articulated in

§§ 302 and 303 of the Act. As stated in

the preamble to the proposed rule, the

purpose of the change was to allow the

Secretary to focus her review on

activities of national concern not local

land use issues with a minimal

connection to the national goals of

coastal resource management. 65 Fed.

Reg. 20279. However, as all of the

commenters pointed out, the use of de

minimis as a descriptor was insufficient

to convey the need to focus the

Secretary’s review on proposed

activities of a national import.

In response to these comments,

NOAA has removed the phrase de

minimis and replaced it with the phrase

‘‘furthers the national interest * * * in

a significant or substantial manner’’

with the intent of emphasizing the need

for an appellant to demonstrate that the

proposed activity is of such import to

the national goals for coastal resource

management that, despite the will of

State and local government decision

makers, the Secretary of Commerce

should independently review the

proposed activity to determine its

consistency with the CZMA. The final

rule uses the same phrase as that

contained in 930.121(b), ‘‘national

interest,’’ instead of ‘‘one or more of the

competing objectives and purposes’’ to

clarify the necessity that a proposed

activity have a national component to

its furtherance of the policies and

objectives of the Act.

By adding the words significantly and

substantially to describe the degree to

which the proposed activity advances

the national interest, NOAA intends to

emphasize the importance of the

relationship between the activity and

the national perspective of the goals

articulated in §§ 302 and 303. The

dictionary definition of substantial

includes ‘‘considerable in importance,

value, degree, amount or extent.’’ The

American Heritage Dictionary, 1976. In

other words, the activity must be more

than related to one of the category of

objectives described in §§ 302 or 303—

it must contribute to the national

achievement of those objectives in an

important way or to a degree that has a

value or impact on a national scale. The

use of the word significant (which is

defined as ‘‘important, notable,

valuable’’) is added to convey NOAA’s

view that a project can be of national

import without being quantifiably large

in scale or impact on the national

economy.

Requiring that a proposed activity

demonstrate that it significantly or

substantially furthers the national

interest creates the appropriate

relationship between the central

objective of the CZMA to encourage

State management of coastal resources

and the Secretary’s role in ensuring the

national interest is fully considered in

the implementation of management

programs. To determine whether a

project significantly or substantially

furthers the national interest, NOAA

encourages appellants and States to

consider three factors: (1) The degree to

which the activity furthers the national

interest; (2) the nature or importance of

the national interest furthered as

articulated in the CZMA; and (3) the

extent to which the proposed activity is

coastal dependent.

An example of an activity that

significantly or substantially furthers

the national interest is the siting of

energy facilities or OCS oil and gas

development. Such activities are coastal

dependent industries with economic

implications beyond the immediate

locality in which they are located. Some

activities, such as a house, a restaurant,

or a food store, may contribute to the

economy of the coastal municipality or

State, but are not coastal dependent and

may not provide significant or

substantial economic contributions to

the national interest furthered by the

objectives in §§ 302 and 303. It may be

more difficult to discern whether other

activities significantly or substantially

further the national interest. For

instance, a marina facility is coastal

dependent, furthers the goals of the

CZMA in public access and recreation

on our coasts, but its economic effects

may be purely local. Conversely, the

addition of a runway to an international

airport may significantly enhance the

national economy while not being

coastal dependent. Whether a project

significantly or substantially furthers

the national interest in the objectives of

§§ 302 and 303, especially for the latter

types of projects (the marina and airport

examples), will depend on the

Secretary’s decision record.

Section 930.121(b). Several States

commented that the national interest in

subsection (b) be a compelling national

interest and one State commented that

the revised language weakens the

current language. One State did

understand NOAA’s change by

commenting that under the current

regulation, subsection (b) can be read as

meaning that if the State interest, or

effects to coastal resources, and the

national interest are equal, then the

national interest in the activity will take

precedence.

NOAA views many of the comments

concerning the balancing of the national

interest and the effects on coastal uses

and resources to have been addressed by

the change to section 930.121(a)

requiring the proposed activity to

further the national interest in a

significant or substantial manner. See

NOAA response above. In the final rule,

NOAA reorganized the clauses in the

proposed rule to address the concern

that section 930.121(b) is grammatically

ambiguous. It is not NOAA’s intent that

the cumulative benefits of a proposed

activity be weighed against coastal

effects. Not only could this lead to the

consideration of an endless stream of

benefits from the flow of commerce, it

could diminish one of the essential

purposes of the CZMA to assist States in

planning, restoring and conserving

coastal resources. The reordered

language is intended to make clear that

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77151

to override a State’s objection the

Secretary must find that the national

interest found to be furthered in a

significant or substantial manner in

section 930.121(a), outweighs the

potential individual or cumulative

effects the proposed activity may have

on coastal uses and resources.

Section 930.121(c). Several States and

others commented that this section

should be deleted, because any activity

must comply with the requirements of

the Clean Air and Water Acts. NOAA

agrees. Removal of this criteria does not

alter in any way the Secretary’s

obligation to evaluate and consider the

potential adverse effects of a proposed

activity on coastal air and water

resources. NOAA will continue to seek

the views and comments of the expert

agencies charged with implementation

of these statutes. The deletion of this

criterion simply removes the obligation

of the Secretary to develop an

administrative finding that a proposed

activity will or will not meet the

requirements of the Clean Air Act and

Clean Water Act. As the commenters

point out, that obligation is fulfilled by

other State and Federal agencies. As

provided for in CZMA § 307(f), States

must include water pollution control

and air pollution control requirements

in their management programs and

those requirements may form the basis

of a State objection.

Section 930.121(d) was amended to

clarify the determination by the

Secretary of the availability of

alternatives. Currently, under the other

elements of section 930.121, the

Secretary may consider many factors

when determining whether an appellant

has met a particular element. Regarding

the element on alternatives, there is

confusion as to when alternatives may

be raised, the consequences of a State

agency not providing alternatives or

when it issues its objection, and the

level of specificity that the State agency

needs to provide to satisfy the element

on appeal. The changes to section

930.121(d) reflect the independent basis

of the Secretary’s decision by not

restricting the scope of the Secretary’s

review. These changes will ensure that

the Secretary’s findings regarding

alternatives will not be restricted, but

will be informed and based on the

Secretary’s independent administrative

record for each case. In this way, both

the State and appellant will be able to

provide the Secretary with information

on whether an alternative is reasonable

and described with sufficient specificity

that might not have been available when

the State issued its objection. Several

States commented that this section

should require that the activity can only

be done at the proposed location or that

alternatives for other uses of the

property be considered. One Federal

agency commented that the Federal

permitting agency’s opinion be given

considerable weight when determining

whether an alternative is reasonable.

NOAA disagrees with the comments.

NOAA intended this provision to make

clear that there is a broad range of

sources from which the Secretary may

draw his examination of the alternatives

to the activity as proposed. The

Secretary is limited in consideration to

reasonable alternatives that meet in

whole or at least in part the appellant’s

purpose. The Secretary does not

consider alternatives that are unrelated

to or do not meet in some reasonable

way the appellant’s objective in

proposing the activity. NOAA does not

intend this provision to deter a State, or

other parties, from proposing to move

the proposed activity to another site to

make better use of existing

infrastructure. Nevertheless, alternatives

must be ‘‘reasonable.’’ NOAA disagrees

that the new rule language diminishes

or in any way affects the weight the

Secretary accords the comments of

Federal agencies.

Section 930.125 is revised to make it

consistent with the 1990 amendments to

the CZMA. The changes include the

requirement that an appellant pay a

filing fee to the Secretary.

Section 930.126 codifies and explains

the statutory requirement for the

Secretary to collect fees from appellants

to recover the costs of administering and

processing appeals. These fees are in

addition to the filing fees. See CZMA

§ 307(i).

Section 930.127 clarifies when an

appellant must submit supporting data

and information. This requirement is

necessary so that the Secretary can meet

new time limits placed on the Secretary

by the 1996 amendments to the CZMA.

One commenter urged that rather than

listing NOAA’s address, it would be

better to note a source for finding the

correct address. NOAA disagrees.

NOAA provides the address of the

Assistant General Counsel for Ocean

Services for the benefit of appellants

using the regulations to form and file

their appeals to the Secretary. This

office has been in the same location for

seven years, and if it moves, mail will

be forwarded and the Code of Federal

Regulations may be updated in due

course.

Section 930.129(a)(6). One commenter

objected to subsection (a)(6) regarding

dismissal of appeals due to an

improperly lodged State objection. One

Federal agency commented that this

language was confusing and should be

reworded such that if a State improperly

lodges its objection, the Secretary would

rule in favor of the appellant. NOAA

agrees that the language is confusing

and has modified the rule accordingly.

In addition, this provision is now a

separate provision to illustrate its

difference with other grounds for

dismissal. The purpose of this provision

is improve the administration of the

appeals process by addressing

procedural deficiencies in the issuance

of the State’s objection early in the

process before the parties and the

Secretary have invested significant

resources in the development of an

administrative record. A State’s

objection is not properly issued if it fails

to comply with the requirements of

section 307 of the Act or with the

regulations contained in subparts D, E,

F and I. To dismiss an objection because

the State has not followed the proper

procedures is actually to override the

State’s objection on procedural grounds.

In the event an appellant claims that a

State objection has not been properly

issued, the Secretary may review the

question as a threshold matter and upon

finding that the objection was not

properly issued, may override the

State’s objection.

Section 930.129(d). One Federal

agency commented that, while

supporting this provision to remand

significant new information to the State

agency, a three month review period be

imposed. One commenter said that this

subsection would lengthen the process

and be inconsistent with the 1996

CZMA amendments. One State

commented that the State should have

the full statutory time of six months to

review significant new information.

The purpose of this part is to ensure

that a State agency has an opportunity

to review significant new information to

determine whether in light of that new

information a proposed project is

consistent with the enforceable policies

of its management program. The

Secretarial review follows the

requirements of section 930.121 and

does not examine the proposed project

for consistency with the management

program. When new information is

developed that is significant to issues

raised by the State, it is appropriate for

the Secretary to request the State to

determine whether its objection

continues or whether in light of the new

information the proposed activity is

consistent with the management

program and the State objection can be

removed. Increasingly, appeals to the

Secretary result in the development of

extensive administrative records

containing information never reviewed

by the State agency. This provision and

77152 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

those in section 930.129(b) and (c) are

intended to ensure that a State agency

has an opportunity to reexamine a

proposed activity when significant new

information is developed or provided.

In addition, NOAA added a time

limitation on the remand to the State to

a period of three (3) months, since the

remand to the State is not another

consistency review. Three months is

sufficient time for the State agency to

review the significant new material and

determine if its objection still stands.

Section 930.131(a)(2). One State

commented that the Secretary should

not have the authority to override a

State’s objection when the State

objected for lack of information. NOAA

disagrees. The Secretary may override a

State objection based on lack of

information if she finds the

administrative record before her

provides sufficient information to make

the findings required by section

930.121. There is no authority to the

contrary. This section is moved to

section 930.127(d).

Section 930.131 is amended to clarify

the procedures applicable to reviews

initiated by the secretary on his/her own

initiative. Section 930.132(b) is

superseded by section 8 of the Coastal

Zone Protection Act of 1996, Pub. L.

104–150. Section 8 created a new § 319

of the CZMA concerning the timing of

appeals which is reflected in new

section 930.130.

Sections 930.133 and 134 are deleted,

because these provisions are included in

other sections of subpart H.

Subpart I—Assistant Administrator

Reporting and Review

Existing subpart I is deleted. This

subpart has never been used, and there

are other existing CZMA mechanisms

for reporting and review: oversight and

monitoring under CZMA section 306,

evaluations under CZMA § 312, appeals

under CZMA § 307, and unlisted

activity review approvals.

In addition, section 930.145 is revised

and moved to section 930.3.

Proposed Subpart I—Consistency of

Federal Activities Having Interstate

Coastal Effects

The CZARA clarified that the federal

consistency trigger is coastal effects,

regardless of the geographic location of

the federal activity. See CZMA § 307;

Conference Report at 970–972. Thus,

federal consistency applies to all

relevant federal actions, even when they

occur outside the State’s coastal zone

and in another State. For example, State

A may review a federal permit

application for an activity occurring

wholly within State B if State A has a

federally approved coastal management

program and the activity will have

coastal effects. An example of this type

of activity is the placement of a sewage

outfall pipe in State B’s waters that

results in impacts to shellfish harvesting

waters in State A. NOAA believes that

regulations are needed so that the

application of interstate consistency is

carried out in a predictable, reasonable,

and efficient manner. NOAA is

specifically addressing interstate

consistency to encourage neighboring

States to cooperate in dealing with

common resource management issues,

and to provide States, permitting

agencies, and the public with a more

predictable application of the

consistency requirement to these

activities. Interstate resource

management issues are best resolved on

a cooperative, proactive basis.

Section 930.151. Two States and one

other commenter commented that the

CZMA does not authorize interstate

consistency. One State commented that

section 930.151 should be amended to

include all federal activities to take into

account activities in the Exclusive

Economic Zone.

NOAA strongly disagrees with the

comments stating that the CZMA does

not authorize interstate consistency. The

Secretary has previously made clear that

the CZMA authorizes interstate

consistency, upholding NOAA’s longstanding position. For a detailed

analysis on the CZMA and interstate

consistency which responds to and

refutes all the arguments raised by the

commenters, see Secretary of

Commerce, Decision and Findings in

the Consistency Appeal of the Virginia

Electric and Power Company from an

Objection by the North Carolina

Department of Environment, Health and

Natural Resources, at vi and 9–18 (May

19, 1994), upheld in North Carolina v.

Brown, Civil Action No. 94–1569 (TFH)

(D.D.C. Sep. 27, 1994). This decision

was based on a 1989 NOAA General

Counsel opinion, the language of the

CZMA and the Conference Report. See

also 136 Cong. Rec. H 8077 (Sep. 26,

1990). At the time of the Secretary’s

1994 decision, previous statements by

the Army Corps of Engineers and the

U.S. Department of Justice (Justice) that

were contrary to NOAA’s position were

reconciled when Justice deferred to

NOAA’s interpretation of the CZMA

regarding the application of consistency

to an activity occurring in another State.

Justice stated that, ‘‘we believe the

department of Commerce is the agency

with statutorily assigned responsibilities

for administering the CZMA and

therefore Commerce has the authority in

the first instance to interpret the Act.’’

Letter from Webster L. Hubbell,

Associate Attorney General, Justice, to

Carol C. Darr, General Counsel,

Commerce (Dec. 14, 1993).

Generally, an activity, regardless of its

location, that requires federal approval

is subject to the CZMA § 307(c)(3)(A).

The CZMA requires that: ‘‘any applicant

for a required Federal license or permit

to conduct an activity, in or outside of

the coastal zone, affecting any land or

water use or natural resource of the

coastal zone of that state shall * * *

[certify] that the proposed activity

complies with the enforceable policies

of the state’s approved program * * *.’’

CZMA § 307(c)(3)(A). Thus, federal

consistency is triggered when an

activity affects the coastal zone. Project

location and political boundaries are,

generally, irrelevant. The procedural

and substantive dictates that allow the

reviewing State to review an activity are

the same, whether the activity is within

its State boundaries, but outside the

coastal zone; or located wholly in

another State. Interstate consistency

does not expand a coastal State’s

jurisdiction or affect the sovereignty of

other States. Federal consistency applies

only to federal actions, not State actions.

If State A determines that an activity in

State B would affect its coastal

resources, but no federal permit or other

federal action is required to undertake

the activity, State A does not have any

authority under the CZMA to review

that activity. The CZMA also, even

when there is a federal consistency

trigger, does not give coastal States the

authority to review the application of

the laws, regulations, or policies of any

other State. The CZMA only allows a

State agency to review the federal

approval of an activity.

This subpart deals with ‘‘interstate’’

activities. Thus, Federal agency

activities or federal license or permit

activities occurring in Federal waters

are covered under subpart C and D.

Sections 930.153 and 154. One State

commented that if a State followed the

listing procedures why would the

unlisted procedure be needed. One State

objected to having to list interstate

activities. One Federal agency and one

State noted that the listing requirements

are essential and fair.

The unlisted activity language is

included in section 930.154(e) for two

reasons: (1) To clarify that the unlisted

procedure is not available until the State

first goes through the listing procedure

for those permits it wants to review, and

(2) to clarify that the unlisted activity

procedure is available, even after going

through the listing procedure to ensure

that the State agency has the

opportunity to review activities with

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77153

coastal effects that were not foreseen at

the time of listing.

A consistency list is a reasonable

interpretation of the statute as a means

of providing an orderly and predictable

process. The proposed interstate

consistency notification/consultation/

listing procedure does not add a new

program requirement. States are already

required to have such lists and to define

the geographic area outside the coastal

zone where the lists will apply. Few

States have described this geographic

area. To meet the interstate requirement

a State may choose to not change its list,

but only to add an interstate geographic

scope. The proposed procedure also

does not mean that a State cannot

review a type of federal activity; it

means that the State must first consult

with neighboring States and notify

potential interstate applicants and

federal agencies. This consultation

procedure does not require that the

State prove coastal effects or that

neighboring States concur with the

listing and geographic location

description. Thus, NOAA does not

believe that meeting this requirement is

burdensome. NOAA believes that it is

important that States must first go

through the notification and listing

procedure. Only then can a State review

an interstate activity. This is necessary

due to the often controversial nature of

reviewing interstate activities. This will

help ensure that interstate consistency

reviews are carried out in a reliable,

predictable and efficient manner, with

notification to individuals in other

States potentially subject to consistency

review.

Sections 930.155(c), 156(a) and (b).

One Federal agency commented that

there is no statutory requirement for

Federal agencies to coordinate with

States in developing a proposed activity,

beyond the coordination required under

CZMA § 307. NOAA agrees. Sections

930.155(c) and 156(a) are deleted as

other subparts provide the requirements

for coordination through consistency

determinations and consistency

certifications.

VIII. Miscellaneous Rulemaking

Requirements

Executive Order 12372:

Intergovernmental Review

This program is subject to Executive

Order 12372.

Executive Order 13132: Federalism

Assessment

NOAA concluded that this regulatory

action is consistent with federalism

principles, criteria, and requirements

stated in Executive Order 13132. The

changes in the federal consistency

regulations facilitate Federal agency

coordination with coastal States, and

ensure that federal actions affecting any

coastal use or resource are consistent

with the enforceable policies of

management programs. The CZMA and

these revised regulations promote the

principles of federalism articulated in

Executive Order 13132 by granting the

States a qualified right to review certain

federal activities that affect the land and

water uses or natural resources of State

coastal zones. CZMA § 307 and these

regulations effectively transfer power

from Federal agencies to State agencies

when Federal agencies propose

activities or applicants for federal

licenses or permits propose to undertake

activities affecting State coastal uses or

resources. Through the CZMA, Federal

agencies carry out their activities in a

manner that is consistent to the

maximum extent practicable with

federally approved management

programs and licensees and permittees

to be fully consistent with the

management programs. The CZMA and

these implementing regulations, rather

than preempting a State provide a

mechanism for it to object to federal

activities that are not consistent with

the management program. A State

objection prevents the issuance of the

federal permit or license, unless the

Secretary of Commerce overrides the

objection. Because the CZMA and these

regulations promote the principles of

federalism and enhance State

authorities, no federalism assessment

need be prepared.

Executive Order 12866: Regulatory

Planning and Review

This regulatory action has been

determined to be not significant for

purposes of Executive Order 12866.

Regulatory Flexibility Act

The Chief Counsel for Regulation of

the Department of Commerce certified

to the Chief Counsel for Advocacy of the

Small Business Administration, when

this rule was proposed, that the rule, if

adopted, would not have a significant

impact on a substantial number of small

entities. One comment was received

regarding the substance of that

certification. One Federal agency

commented that there may be additional

factors, which may not have been

adequately considered, that could have

potential impacts on small businesses,

and asked that NOAA consider this

information. In particular, the

infrastructure needed to explore and

develop the OCS requires planning in

advance of an expected drilling or

construction date. For example, certain

types of infrastructure (such as

specialized drilling rigs) are in limited

supply, requiring that contracts be

signed well before permitted activities

commence. Many of the changes

contemplated in the proposed rule

involve new procedures, extensions of

time for consistency review, and

additional information collection and

reporting requirements during the

consistency review and appeals

processes. These changes may cause

unpredictability that could affect a

substantial number of small businesses

operating on the OCS. Currently, four

out of five people who work on the OCS

work for contractors, not large oil

companies. Many of these contractors

employ fewer than 500 people. The

issues raised by the commenter were

considered in the analysis that provided

the factual basis for the certification.

With respect to the issues raised in the

comment, the analysis found that the

changes contained in the proposed, and

this final, rule regarding information,

appeal and time requirements were

minor. The conclusion in the analysis

was that these changes should not have

a significant economic impact on

contractors for the applicant or cause

unpredictability since these

requirements are, for the most part,

already part of doing business under the

CZMA federal consistency requirement.

Accordingly, the basis for the

certification has not changed and

neither an initial nor a final Regulatory

Flexibility Analysis was prepared.

Paperwork Reduction Act

This rule contains a collection-ofinformation requirement subject to the

Paperwork Reduction Act (PRA) and

which has been approved by OMB

under control number 0648–0411.

Public reporting burden for this

collection of information is estimated to

average the following times per

response: 8 hours for a State objection

and concurrence to consistency

certifications or determinations; 12

hours for a State request to review

unlisted activities; 1 hour for a public

notice requirement; 12 hours for a

request for remedial action and

supplemental review; 1 hour for a

listing notice; 6 hours for a request for

Secretarial mediation; and 200 hours for

an average appeal to the Secretary of

Commerce. These estimates include the

time for reviewing instructions,

searching existing data sources,

gathering and maintaining the data

needed, and completing and reviewing

the collection of information. Send

comments regarding this burden

estimate, or any other aspect of this data

collection, including suggestions for

77154 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

reducing the burden, to NOAA and

OMB (see ADDRESSES).

Notwithstanding any other provision

of the law, no person is required to

respond to, nor shall any person be

subject to a penalty for failure to comply

with, a collection of information subject

to the requirements of the PRA, unless

that collection of information displays a

valid OMB Control Number.

National Environmental Policy Act

NOAA has concluded that this

regulatory action is categorically

excluded from NEPA as not having the

potential for significant impact on the

quality of the human environment

pursuant to NAO 216–6.03c3(i).

Therefore, an environmental impact

statement is not required.

List of Subjects in 15 CFR part 930

Administrative practice and

procedure, Coastal zone, Reporting and

record keeping requirements.

Dated: November 30, 2000.

John Oliver,

Chief Financial Officer, National Ocean

Service.

For the reasons set out in the

preamble, NOAA has revised 15 CFR

part 930 to read:

Final Revision of 15 C.F.R. part 930

PART 930—FEDERAL CONSISTENCY

WITH APPROVED COASTAL

MANAGEMENT PROGRAMS

Subpart A—General Information

930.1 Overall objectives.

930.2 Public participation.

930.3 Review of the implementation of the

federal consistency requirement.

930.4 Conditional concurrences.

930.5 State enforcement action.

930.6 State agency responsibility.

Subpart B—General Definitions

930.10 Index to definitions for terms

defined in part 930.

930.11 Definitions.

Subpart C—Consistency for Federal

Agency Activities

930.30 Objectives.

930.31 Federal agency activity.

930.32 Consistent to the maximum extent

practicable.

930.33 Identifying Federal agency activities

affecting any coastal use or resource.

930.34 Federal and State agency

coordination.

930.35 Negative determinations for

proposed activities.

930.36 Consistency determinations for

proposed activities.

930.37 Consistency determinations and

National Environmental Policy Act

(NEPA) requirements.

930.38 Consistency determinations for

activities initiated prior to management

program approval.

930.39 Content of a consistency

determination.

930.40 Multiple Federal agency

participation.

930.41 State agency response.

930.42 Public participation.

930.43 State agency objection.

930.44 Availability of mediation for

disputes concerning proposed activities.

930.45 Availability of mediation for

previously reviewed activities.

930.46 Supplemental coordination for

proposed activities.

Subpart D—Consistency for Activities

Requiring a Federal License or Permit

930.50 Objectives.

930.51 Federal license or permit.

930.52 Applicant.

930.53 Listed federal license or permit

activities.

930.54 Unlisted federal license or permit

activities.

930.55 Availability of mediation for license

or permit disputes.

930.56 State agency guidance and

assistance to applicants.

930.57 Consistency certifications.

930.58 Necessary data and information.

930.59 Multiple permit review.

930.60 Commencement of State agency

review.

930.61 Public participation.

930.62 State agency concurrence with a

consistency certification.

930.63 State agency objection to a

consistency certification.

930.64 Federal permitting agency

responsibility.

930.65 Remedial action for previously

reviewed activities.

930.66 Supplemental coordination for

proposed activities.

Subpart E—Consistency for Outer

Continental Shelf (OCS) Exploration,

Development and Production Activities

930.70 Objectives.

930.71 Federal license or permit activity

described in detail.

930.72 Person.

930.73 OCS plan.

930.74 OCS activities subject to State

agency review.

930.75 State agency assistance to persons.

930.76 Submission of an OCS plan,

necessary data and information and

consistency certification.

930.77 Commencement of State agency

review and public notice.

930.78 State agency concurrence or

objection.

930.79 Effect of State agency concurrence.

930.80 Federal permitting agency

responsibility.

930.81 Multiple permit review.

930.82 Amended OCS plans.

930.83 Review of amended OCS plans;

public notice.

930.84 Continuing State agency objections.

930.85 Failure to comply substantially with

an approved OCS plan.

Subpart F—Consistency for Federal

Assistance to State and Local Governments

930.90 Objectives.

930.91 Federal assistance.

930.92 Applicant agency.

930.93 Intergovernmental review process.

930.94 State review process for consistency.

930.95 Guidance provided by the State

agency.

930.96 Consistency review.

930.97 Federal assisting agency

responsibility.

930.98 Federally assisted activities outside

of the coastal zone or the described

geographic area.

930.99 Availability of mediation for federal

assistance disputes.

930.100 Remedial action for previously

reviewed activities.

930.101 Supplemental coordination for

proposed activities.

Subpart G—Secretarial Mediation

930.110 Objectives.

930.111 OCRM mediation.

930.112 Request for Secretarial mediation.

930.113 Public hearings.

930.114 Secretarial mediation efforts.

930.115 Termination of mediation.

930.116 Judicial review.

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 Appellant and Federal agency.

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.

Subpart I—Consistency of Federal

Activities Having Interstate Coastal Effects

930.150 Objectives.

930.151 Interstate coastal effect.

930.152 Application.

930.153 Coordination between States in

developing coastal management policies.

930.154 Listing activities subject to

interstate consistency review.

930.155 Federal and State agency

coordination.

930.156 Content of a consistency

determination or certification and State

agency response.

930.157 Mediation and informal

negotiations.

Authority: 16 U.S.C. 1451 et seq.

Subpart A—General Information

§ 930.1 Overall objectives.

The objectives of this part are:

(a) To describe the obligations of all

parties who are required to comply with

the federal consistency requirement of

the Coastal Zone Management Act;

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77155

(b) To implement the federal

consistency requirement in a manner

which strikes a balance between the

need to ensure consistency for federal

actions affecting any coastal use or

resource with the enforceable policies of

approved management programs and

the importance of federal activities;

(c) To provide flexible procedures

which foster intergovernmental

cooperation and minimize duplicative

effort and unnecessary delay, while

making certain that the objectives of the

federal consistency requirement of the

Act are satisfied. Federal agencies, State

agencies, and applicants should

coordinate as early as possible in

developing a proposed federal action,

and may mutually agree to

intergovernmental coordination efforts

to meet the requirements of these

regulations, provided that public

participation requirements are met and

applicable State management program

enforceable policies are considered.

(d) To interpret significant terms in

the Act and this part;

(e) To provide procedures to make

certain that all Federal agency and State

agency consistency decisions are

directly related to the enforceable

policies of approved management

programs;

(f) To provide procedures which the

Secretary, in cooperation with the

Executive Office of the President, may

use to mediate serious disagreements

which arise between Federal and State

agencies during the administration of

approved management programs; and

(g) To provide procedures which

permit the Secretary to review federal

license or permit activities, or federal

assistance activities, to determine

whether they are consistent with the

objectives or purposes of the Act, or are

necessary in the interest of national

security.

§ 930.2 Public participation.

State management programs shall

provide an opportunity for public

participation in the State agency’s

review of a Federal agency’s consistency

determination or an applicant’s or

person’s consistency certification.

§ 930.3 Review of the implementation of

the federal consistency requirement.

As part of the responsibility to

conduct a continuing review of

approved management programs, the

Director of the Office of Ocean and

Coastal Resource Management (Director)

shall review the performance of each

State’s implementation of the federal

consistency requirement. The Director

shall evaluate instances where a State

agency is believed to have either failed

to object to inconsistent federal actions,

or improperly objected to consistent

federal actions. This evaluation shall be

incorporated within the Director’s

general efforts to ascertain instances

where a State has not adhered to its

approved management program and

such lack of adherence is not justified.

§ 930.4 Conditional concurrences

(a) Federal agencies, applicants,

persons and applicant agencies should

cooperate with State agencies to develop

conditions that, if agreed to during the

State agency’s consistency review

period and included in a Federal

agency’s final decision under subpart C

or in a Federal agency’s approval under

subparts D, E, F or I of this part, would

allow the State agency to concur with

the federal action. If instead a State

agency issues a conditional

concurrence:

(1) The State agency shall include in

its concurrence letter the conditions

which must be satisfied, an explanation

of why the conditions are necessary to

ensure consistency with specific

enforceable policies of the management

program, and an identification of the

specific enforceable policies. The State

agency’s concurrence letter shall also

inform the parties that if the

requirements of paragraphs (a)(1)

through (3) of the section are not met,

then all parties shall treat the State

agency’s conditional concurrence letter

as an objection pursuant to the

applicable subpart and notify, pursuant

to § 930.63(e), applicants, persons and

applicant agencies of the opportunity to

appeal the State agency’s objection to

the Secretary of Commerce within 30

days after receipt of the State agency’s

conditional concurrence/objection or 30

days after receiving notice from the

Federal agency that the application will

not be approved as amended by the

State agency’s conditions; and

(2) The Federal agency (for subpart C),

applicant (for subparts D and I), person

(for subpart E) or applicant agency (for

subpart F) shall modify the applicable

plan, project proposal, or application to

the Federal agency pursuant to the State

agency’s conditions. The Federal

agency, applicant, person or applicant

agency shall immediately notify the

State agency if the State agency’s

conditions are not acceptable; and

(3) The Federal agency (for subparts

D, E, F and I) shall approve the

amended application (with the State

agency’s conditions). The Federal

agency shall immediately notify the

State agency and applicant or applicant

agency if the Federal agency will not

approve the application as amended by

the State agency’s conditions.

(b) If the requirements of paragraphs

(a)(1) through (3) of this section are not

met, then all parties shall treat the State

agency’s conditional concurrence as an

objection pursuant to the applicable

subpart.

§ 930.5 State enforcement action.

The regulations in this part are not

intended in any way to alter or limit

other legal remedies, including judicial

review or State enforcement, otherwise

available. State agencies and Federal

agencies should first use the various

remedial action and mediation sections

of this part to resolve their differences

or to enforce State agency concurrences

or objections.

§ 930.6 State agency responsibility.

(a) This section describes the

responsibilities of the ‘‘State agency’’

described in § 930.11(o). A designated

State agency is required to uniformly

and comprehensively apply the

enforceable policies of the State’s

management program, efficiently

coordinate all State coastal management

requirements, and to provide a single

point of contact for Federal agencies and

the public to discuss consistency issues.

Any appointment by the State agency of

the State’s consistency responsibilities

to a designee agency must be described

in the State’s management program. In

the absence of such description, all

consistency determinations, consistency

certifications and federal assistance

proposals shall be sent to and reviewed

by the State agency. A State may have

two State agencies designated pursuant

to § 306(d)(6) of the Act where the State

has two geographically separate

federally-approved management

programs.

(b) The State agency is responsible for

commenting on and concurring with or

objecting to Federal agency consistency

determinations and negative

determinations (see subpart C of this

part), consistency certifications for

federal licenses, permits, and Outer

Continental Shelf plans (see subparts D,

E and I of this part), and reviewing the

consistency of federal assistance

activities proposed by applicant

agencies (see subpart F of this part). The

State agency shall be responsible for

securing necessary review and comment

from other State, regional, or local

government agencies, and, where

applicable, the public. Thereafter, only

the State agency is authorized to

comment officially on or concur with or

object to a federal consistency

determination or negative

determination, a consistency

certification, or determine the

77156 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

consistency of a proposed federal

assistance activity.

(c) If described in a State’s

management program, the issuance or

denial of relevant State permits can

constitute the State agency’s consistency

concurrence or objection if the State

agency ensures that the State permitting

agencies or the State agency review

individual projects to ensure

consistency with all applicable State

management program policies and that

applicable public participation

requirements are met. The State agency

shall monitor such permits issued by

another State agency.

Subpart B—General Definitions

§ 930.10 Index to definitions for terms

defined in part 930.

Term Section

Act ............................................... 930.11(a)

Any coastal use or resource ...... 930.11(b)

Appellant ..................................... 930.123

Applicant ..................................... 930.52

Applicant agency ........................ 930.92

Assistant Administrator ............... 930.11(c)

Associated facilities .................... 930.11(d)

Coastal zone ............................... 930.11(e)

Consistent to the maximum extent practicable.930.32

Consistent with the objectives or

purposes of the Act.

930.121

Development project ................... 930.31(b)

Director ....................................... 930.11(f)

Effect on any coastal use or resource.930.11(g)

Enforceable policy ...................... 930.11(h)

Executive Office of the President 930.11(i)

Failure substantially to comply

with an OCS plan.

930.86(d)

Federal agency ........................... 930.11(j)

Federal agency activity ............... 930.31

Federal assistance ..................... 930.91

Federal license or permit ............ 930.51

Federal license or permit activity

described in detail.

930.71

Interstate coastal effect .............. 930.151

Major amendment ....................... 930.51(c)

Management program ................ 930.11(k)

Necessary in the interest of national security.930.122

OCS plan .................................... 930.73

OCRM ......................................... 930.11(l)

Person ........................................ 930.72

Secretary .................................... 930.11(m)

Section ........................................ 930.11(n)

State agency ............................... 930.11(o)

§ 930.11 Definitions.

(a) Act. The term ‘‘Act’’ means the

Coastal Zone Management Act of 1972,

as amended (16 U.S.C. 1451–1464).

(b) Any coastal use or resource. The

phrase ‘‘any coastal use or resource’’

means any land or water use or natural

resource of the coastal zone. Land and

water uses, or coastal uses, are defined

in sections 304(10) and (18) of the act,

respectively, and include, but are not

limited to, public access, recreation,

fishing, historic or cultural preservation,

development, hazards management,

marinas and floodplain management,

scenic and aesthetic enjoyment, and

resource creation or restoration projects.

Natural resources include biological or

physical resources that are found within

a State’s coastal zone on a regular or

cyclical basis. Biological and physical

resources include, but are not limited to,

air, tidal and nontidal wetlands, ocean

waters, estuaries, rivers, streams, lakes,

aquifers, submerged aquatic vegetation,

land, plants, trees, minerals, fish,

shellfish, invertebrates, amphibians,

birds, mammals, reptiles, and coastal

resources of national significance.

Coastal uses and resources also includes

uses and resources appropriately

described in a management program.

(c) Assistant Administrator. The term

‘‘Assistant Administrator’’ means the

Assistant Administrator for Ocean

Services and Coastal Zone Management,

NOAA.

(d) Associated facilities. The term

‘‘associated facilities’’ means all

proposed facilities which are

specifically designed, located,

constructed, operated, adapted, or

otherwise used, in full or in major part,

to meet the needs of a federal action

(e.g., activity, development project,

license, permit, or assistance), and

without which the federal action, as

proposed, could not be conducted. The

proponent of a federal action shall

consider whether the federal action and

its associated facilities affect any coastal

use or resource and, if so, whether these

interrelated activities satisfy the

requirements of the applicable subpart

(subparts C, D, E, F or I).

(e) Coastal Zone. The term ‘‘coastal

zone’’ has the same definition as

provided in § 304(1) of the Act.

(f) Director. The term ‘‘Director’’

means the Director of the Office of

Ocean and Coastal Resource

Management (OCRM), National Ocean

Service, NOAA.

(g) Effect on any coastal use or

resource (coastal effect). The term

‘‘effect on any coastal use or resource’’

means any reasonably foreseeable effect

on any coastal use or resource resulting

from a federal action. (The term ‘‘federal

action’’ includes all types of activities

subject to the federal consistency

requirement under subparts C, D, E, F

and I of this part.) Effects are not just

environmental effects, but include

effects on coastal uses. Effects include

both direct effects which result from the

activity and occur at the same time and

place as the activity, and indirect

(cumulative and secondary) effects

which result from the activity and are

later in time or farther removed in

distance, but are still reasonably

foreseeable. Indirect effects are effects

resulting from the incremental impact of

the federal action when added to other

past, present, and reasonably

foreseeable actions, regardless of what

person(s) undertake(s) such actions.

(h) Enforceable policy. ‘‘The term

‘‘enforceable policy’’ means State

policies which are legally binding

through constitutional provisions, laws,

regulations, land use plans, ordinances,

or judicial or administrative decisions,

by which a State exerts control over

private and public land and water uses

and natural resources in the coastal

zone,’’ 16 USC 1453(6a), and which are

incorporated in a management program

as approved by OCRM either as part of

program approval or as a program

change under 15 CFR part 923, subpart

H. An enforceable policy shall contain

standards of sufficient specificity to

guide public and private uses.

Enforceable policies need not establish

detailed criteria such that a proponent

of an activity could determine the

consistency of an activity without

interaction with the State agency. State

agencies may identify management

measures which are based on

enforceable policies, and, if

implemented, would allow the activity

to be conducted consistent with the

enforceable policies of the program. A

State agency, however, must base its

objection on enforceable policies.

(i) Executive Office of the President.

The term ‘‘Executive Office of the

President’’ means the office, council,

board, or other entity within the

Executive Office of the President which

shall participate with the Secretary in

seeking to mediate serious

disagreements which may arise between

a Federal agency and a coastal State.

(j) Federal agency. The term ‘‘Federal

agency’’ means any department, agency,

board, commission, council,

independent office or similar entity

within the executive branch of the

federal government, or any wholly

owned federal government corporation.

(k) Management program. The term

‘‘management program’’ has the same

definition as provided in section

304(12) of the Act, except that for the

purposes of this part the term is limited

to those management programs adopted

by a coastal State in accordance with the

provisions of section 306 of the Act, and

approved by the Assistant

Administrator.

(l) OCRM. The term ‘‘OCRM’’ means

the Office of Ocean and Coastal

Resource Management, National Ocean

Service, National Oceanic and

Atmospheric Administration

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77157

(‘‘NOAA’’), U.S. Department of

Commerce.

(m) Secretary. The term ‘‘Secretary’’

means the Secretary of Commerce and/

or designee.

(n) Section. The term ‘‘Section’’

means a section of the Coastal Zone

Management Act of 1972, as amended.

(o) State agency. The term ‘‘State

agency’’ means the agency of the State

government designated pursuant to

section 306(d)(6) of the Act to receive

and administer grants for an approved

management program, or a single

designee State agency appointed by the

306(d)(6) State agency.

Subpart C—Consistency for Federal

Agency Activities

§ 930.30 Objectives.

The provisions of this subpart are

intended to assure that all Federal

agency activities including development

projects affecting any coastal use or

resource will be undertaken in a manner

consistent to the maximum extent

practicable with the enforceable policies

of approved management programs. The

provisions of subpart I of this part are

intended to supplement the provisions

of this subpart for Federal agency

activities having interstate coastal

effects.

§ 930.31 Federal agency activity.

(a) The term ‘‘Federal agency activity’’

means any functions performed by or on

behalf of a Federal agency in the

exercise of its statutory responsibilities.

This encompasses a wide range of

Federal agency activities which initiate

an event or series of events where

coastal effects are reasonably

foreseeable, e.g., rulemaking, planning,

physical alteration, exclusion of uses.

The term ‘‘Federal agency activity’’ does

not include the issuance of a federal

license or permit to an applicant or

person (see subparts D and E of this

part) or the granting of federal assistance

to an applicant agency (see subpart F of

this part).

(b) The term federal ‘‘development

project’’ means a Federal agency activity

involving the planning, construction,

modification, or removal of public

works, facilities, or other structures, and

includes the acquisition, use, or

disposal of any coastal use or resource.

(c) The Federal agency activity

category is a residual category for

federal actions that are not covered

under subparts D, E, or F of this part.

(d) A general permit program

proposed by a Federal agency is subject

to this subpart if the general permit

program does not involve case-by-case

approval by the Federal agency, unless

a Federal agency chooses to subject its

general permit program to consistency

review under subpart D of this part, by

providing the State agency with a

consistency certification. When

proposing a general permit program, a

Federal agency shall provide a

consistency determination to the

relevant management programs and

request that the State agency(ies)

provide the Federal agency with

conditions that would permit the State

agency to concur with the Federal

agency’s consistency determination.

State concurrence shall remove the need

for the State agency to review future

case-by-case uses of the general permit

for consistency with the enforceable

policies of management programs.

Federal agencies shall, to the maximum

extent practicable, incorporate the State

conditions into the general permit. If the

State conditions are not incorporated

into the general permit or a State agency

objects to the general permit, then the

Federal agency shall notify potential

users of the general permit that the

general permit is not authorized for that

State unless the State agency concurs

that the activity is consistent with the

enforceable policies of its management

program. Accordingly, the applicants in

those States shall provide the State

agency with a consistency certification

under subpart D of this part.

(e) The terms ‘‘Federal agency

activity’’ and ‘‘Federal development

project’’ also include modifications of

any such activity or development

project which affect any coastal use or

resource, provided that, in the case of

modifications of an activity or

development project which the State

agency has previously reviewed, the

effect on any coastal use or resource is

substantially different than those

previously reviewed by the State

agency.

§ 930.32 Consistent to the maximum

extent practicable.

(a)(1) The term ‘‘consistent to the

maximum extent practicable’’ means

fully consistent with the enforceable

policies of management programs unless

full consistency is prohibited by

existing law applicable to the Federal

agency.

(2) Section 307(e) of the Act does not

relieve Federal agencies of the

consistency requirements under the Act.

The Act was intended to cause

substantive changes in Federal agency

decisionmaking within the context of

the discretionary powers residing in

such agencies. Accordingly, whenever

legally permissible, Federal agencies

shall consider the enforceable policies

of management programs as

requirements to be adhered to in

addition to existing Federal agency

statutory mandates. If a Federal agency

asserts that full consistency with the

management program is prohibited, it

shall clearly describe, in writing, to the

State agency the statutory provisions,

legislative history, or other legal

authority which limits the Federal

agency’s discretion to be fully consistent

with the enforceable policies of the

management program.

(3) For the purpose of determining

consistent to the maximum extent

practicable under paragraphs (a)(1) and

(2) of this section, federal legal authority

includes Federal appropriation Acts if

the appropriation Act includes language

that specifically prohibits full

consistency with specific enforceable

policies of management programs.

Federal agencies shall not use a general

claim of a lack of funding or insufficient

appropriated funds or failure to include

the cost of being fully consistent in

Federal budget and planning processes

as a basis for being consistent to the

maximum extent practicable with an

enforceable policy of a management

program. The only circumstance where

a Federal agency may rely on a lack of

funding as a limitation on being fully

consistent with an enforceable policy is

the Presidential exemption described in

section 307(c)(1)(B) of the Act (16 USC

1456(c)(1)(B)). In cases where the cost of

being consistent with the enforceable

policies of a management program was

not included in the Federal agency’s

budget and planning processes, the

Federal agency should determine the

amount of funds needed and seek

additional federal funds. Federal

agencies should include the cost of

being fully consistent with the

enforceable policies of management

programs in their budget and planning

processes, to the same extent that a

Federal agency would plan for the cost

of complying with other federal

requirements.

(b) A Federal agency may deviate

from full consistency with an approved

management program when such

deviation is justified because of an

emergency or other similar unforeseen

circumstance (‘‘exigent circumstance’’),

which presents the Federal agency with

a substantial obstacle that prevents

complete adherence to the approved

program. Any deviation shall be the

minimum necessary to address the

exigent circumstance. Federal agencies

shall carry out their activities consistent

to the maximum extent practicable with

the enforceable policies of a

management program, to the extent that

the exigent circumstance allows.

Federal agencies shall consult with

77158 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

State agencies to the extent that an

exigent circumstance allows and shall

attempt to seek State agency

concurrence prior to addressing the

exigent circumstance. Once the exigent

circumstances have passed, and if the

Federal agency is still carrying out an

activity with coastal effects, Federal

agencies shall comply with all

applicable provisions of this subpart to

ensure that the activity is consistent to

the maximum extent practicable with

the enforceable policies of management

programs. Once the Federal agency has

addressed the exigent circumstance or

completed its emergency response

activities, it shall provide the State

agency with a description of its actions

and their coastal effects.

(c) A classified activity that affects

any coastal use or resource is not

exempt from the requirements of this

subpart, unless the activity is exempted

by the President under section

307(c)(1)(B) of the Act. Under the

consistent to the maximum extent

practicable standard, the Federal agency

shall provide to the State agency a

description of the project and coastal

effects that it is legally permitted to

release or does not otherwise breach the

classified nature of the activity. Even

when a Federal agency may not be able

to disclose project information, the

Federal agency shall conduct the

classified activity consistent to the

maximum extent practicable with the

enforceable policies of management

programs. The term classified means to

protect from disclosure national security

information concerning the national

defense or foreign policy, provided that

the information has been properly

classified in accordance with the

substantive and procedural

requirements of an executive order.

Federal and State agencies are

encouraged to agree on a qualified third

party(ies) with appropriate security

clearance(s) to review classified

information and to provide nonclassified comments regarding the

activity’s reasonably foreseeable coastal

effects.

§ 930.33 Identifying Federal agency

activities affecting any coastal use or

resource.

(a) Federal agencies shall determine

which of their activities affect any

coastal use or resource of States with

approved management programs.

(1) Effects are determined by looking

at reasonably foreseeable direct and

indirect effects on any coastal use or

resource. An action which has minimal

or no environmental effects may still

have effects on a coastal use (e.g., effects

on public access and recreational

opportunities, protection of historic

property) or a coastal resource, if the

activity initiates an event or series of

events where coastal effects are

reasonably foreseeable. Therefore,

Federal agencies shall, in making a

determination of effects, review relevant

management program enforceable

policies as part of determining effects on

any coastal use or resource.

(2) If the Federal agency determines

that a Federal agency activity has no

effects on any coastal use or resource,

and a negative determination under

§ 930.35 is not required, then the

Federal agency is not required to

coordinate with State agencies under

section 307 of the Act.

(3) (i) De minimis Federal agency

activities. Federal agencies are

encouraged to review their activities,

other than development projects within

the coastal zone, to identify de minimis

activities, and request State agency

concurrence that these de minimis

activities should not be subject to

further State agency review. De minimis

activities shall only be excluded from

State agency review if a Federal agency

and State agency have agreed. The State

agency shall provide for public

participation under section 306(d)(14) of

the Act when reviewing the Federal

agency’s de minimis activity request. If

the State agency objects to the Federal

agency’s de minimis finding then the

Federal agency must provide the State

agency with either a negative

determination or a consistency

determination pursuant to this subpart.

OCRM is available to facilitate a Federal

agency’s request.

(ii) De minimis activities are activities

that are expected to have insignificant

direct or indirect (cumulative and

secondary) coastal effects and which the

State agency concurs are de minimis.

(4) Environmentally beneficial

activities. The State agency and Federal

agencies may agree to exclude

environmentally beneficial Federal

agency activities (either on a case-bycase basis or for a category of activities)

from further State agency consistency

review. Environmentally beneficial

activity means an activity that protects,

preserves, or restores the natural

resources of the coastal zone. The State

agency shall provide for public

participation under section 306(d)(14) of

the Act for the State agency’s

consideration of whether to exclude

environmentally beneficial activities.

(5) General consistency

determinations, phased consistency

determinations, and national or regional

consistency determinations under

§ 930.36 are also available to facilitate

federal-State coordination.

(b) Federal agencies shall consider all

development projects within the coastal

zone to be activities affecting any

coastal use or resource. All other types

of activities within the coastal zone are

subject to Federal agency review to

determine whether they affect any

coastal use or resource.

(c)(1) Federal agency activities and

development projects outside of the

coastal zone, are subject to Federal

agency review to determine whether

they affect any coastal use or resource.

(d) Federal agencies shall broadly

construe the effects test to provide State

agencies with a consistency

determination under § 930.34 and not a

negative determination under § 930.35

or other determinations of no effects.

Early coordination and cooperation

between a Federal agency and the State

agency can enable the parties to focus

their efforts on particular Federal

agency activities of concern to the State

agency.

§ 930.34 Federal and State agency

coordination.

(a)(1) Federal agencies shall provide

State agencies with consistency

determinations for all Federal agency

activities affecting any coastal use or

resource. To facilitate State agency

review, Federal agencies should

coordinate with the State agency prior

to providing the determination.

(2) Use of existing procedures. Federal

agencies are encouraged to coordinate

and consult with State agencies through

use of existing procedures in order to

avoid waste, duplication of effort, and to

reduce Federal and State agency

administrative burdens. Where

necessary, these existing procedures

should be modified to facilitate

coordination and consultation under the

Act.

(b) Listed activities. State agencies are

strongly encouraged to list in their

management programs Federal agency

activities which, in the opinion of the

State agency, will have reasonably

foreseeable coastal effects and therefore,

may require a Federal agency

consistency determination. Listed

Federal agency activities shall be

described in terms of the specific type

of activity involved (e.g., federal

reclamation projects). In the event the

State agency chooses to describe Federal

agency activities that occur outside of

the coastal zone, which the State agency

believes will have reasonably

foreseeable coastal effects, it shall also

describe the geographic location of such

activities (e.g., reclamation projects in

coastal floodplains).

(c) Unlisted activities. State agencies

should monitor unlisted Federal agency

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77159

activities (e.g., by use of

intergovernmental review process

established pursuant to E.O. 12372,

review of NEPA documents, and the

Federal Register) and should notify

Federal agencies of unlisted Federal

agency activities which Federal agencies

have not subjected to a consistency

review but which, in the opinion of the

State agency, will have reasonably

foreseeable coastal effects and therefore,

may require a Federal agency

consistency determination. The

provisions in paragraphs (b) and (c) of

this section are recommended rather

than mandatory procedures for

facilitating federal-State coordination of

Federal agency activities which affect

any coastal use or resource. State agency

notification to the Federal agency (by

listed or unlisted notification) is neither

a substitute for nor does it eliminate

Federal agency responsibility to comply

with the consistency requirement, and

to provide State agencies with

consistency determinations for all

development projects in the coastal

zone and for all other Federal agency

activities which the Federal agency

finds affect any coastal use or resource,

regardless of whether the State agency

has listed the activity or notified the

Federal agency through case-by-case

monitoring.

(d) State guidance and assistance to

Federal agencies. As a preliminary

matter, a decision that a Federal agency

activity affects any coastal use or

resource should lead to early

consultation with the State agency (i.e.,

before the required 90-day period).

Federal agencies should obtain the

views and assistance of the State agency

regarding the means for determining

that the proposed activity will be

conducted in a manner consistent to the

maximum extent practicable with the

enforceable policies of a management

program. As part of its assistance efforts,

the State agency shall make available for

public inspection copies of the

management program document. Upon

request by the Federal agency, the State

agency shall identify any enforceable

policies applicable to the proposed

activity based upon the information

provided to the State agency at the time

of the request.

§ 930.35 Negative determinations for

proposed activities.

(a) If a Federal agency determines that

there will not be coastal effects, then the

Federal agency shall provide the State

agencies with a negative determination

for a Federal agency activity:

(1) Identified by a State agency on its

list, as described in § 930.34(b), or

through case-by-case monitoring of

unlisted activities; or

(2) Which is the same as or is similar

to activities for which consistency

determinations have been prepared in

the past; or

(3) For which the Federal agency

undertook a thorough consistency

assessment and developed initial

findings on the coastal effects of the

activity.

(b) Content of a negative

determination. A negative

determination may be submitted to State

agencies in any written form so long as

it contains a brief description of the

activity, the activity’s location and the

basis for the Federal agency’s

determination that the activity will not

affect any coastal use or resource. In

determining effects, Federal agencies

shall follow § 930.33(a)(1), including an

evaluation of the relevant enforceable

policies of a management program and

include the evaluation in the negative

determination. The level of detail in the

Federal agency’s analysis may vary

depending on the scope and complexity

of the activity and issues raised by the

State agency, but shall be sufficient for

the State agency to evaluate whether

coastal effects are reasonably

foreseeable.

(c) A negative determination under

paragraph (a) of this section shall be

provided to the State agency at least 90

days before final approval of the

activity, unless both the Federal agency

and the State agency agree to an

alternative notification schedule. A

State agency is not obligated to respond

to a negative determination. If a State

agency does not respond to a Federal

agency’s negative determination within

60 days, State agency concurrence with

the negative determination shall be

presumed. State agency concurrence

shall not be presumed in cases where

the State agency, within the 60-day

period, requests an extension of time to

review the matter. Federal agencies

shall approve one request for an

extension period of 15 days or less. If a

State agency objects to a negative

determination, asserting that coastal

effects are reasonably foreseeable, the

Federal agency shall consider

submitting a consistency determination

to the State agency or otherwise attempt

to resolve any disagreement within the

remainder of the 90-day period. If a

Federal agency, in response to a State

agency’s objection to a negative

determination, agrees that coastal effects

are reasonably foreseeable, the State

agency and Federal agency should

attempt to agree to complete the

consistency review within the 90-day

period for the negative determination or

consider an alternative schedule

pursuant to § 930.36(b)(1). Federal

agencies should consider postponing

final Federal agency action, beyond the

90-day period, until a disagreement has

been resolved. State agencies are not

required to provide public notice of the

receipt of a negative determination or

the resolution of an objection to a

negative determination, unless a Federal

agency submits a consistency

determination pursuant to § 930.34.

(d) In the event of a serious

disagreement between a Federal agency

and a State agency regarding a

determination related to whether a

proposed activity affects any coastal use

or resource, either party may seek the

Secretarial mediation or OCRM

mediation services provided for in

subpart G.

§ 930.36 Consistency determinations for

proposed activities.

(a) Federal agencies shall review their

proposed Federal agency activities

which affect any coastal use or resource

in order to develop consistency

determinations which indicate whether

such activities will be undertaken in a

manner consistent to the maximum

extent practicable with the enforceable

policies of approved management

programs. Federal agencies should

consult with State agencies at an early

stage in the development of the

proposed activity in order to assess

whether such activities will be

consistent to the maximum extent

practicable with the enforceable policies

of such programs.

(b) Timing of consistency

determinations. (1) Federal agencies

shall provide State agencies with a

consistency determination at the earliest

practicable time in the planning or

reassessment of the activity. A

consistency determination should be

prepared following development of

sufficient information to reasonably

determine the consistency of the activity

with the management program, but

before the Federal agency reaches a

significant point of decisionmaking in

its review process, i.e., while the

Federal agency has the ability to modify

the activity. The consistency

determination shall be provided to State

agencies at least 90 days before final

approval of the Federal agency activity

unless both the Federal agency and the

State agency agree to an alternative

notification schedule.

(2) Federal and State agencies may

mutually agree upon procedures for

extending the notification requirement

beyond 90 days for activities requiring

a substantial review period, and for

shortening the notification period for

77160 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

activities requiring a less extensive

review period, provided that public

participation requirements are met.

(c) General consistency

determinations. In cases where Federal

agencies will be performing repeated

activity other than a development

project (e.g., ongoing maintenance,

waste disposal) which cumulatively has

an effect upon any coastal use or

resource, the Federal agency may

develop a general consistency

determination, thereby avoiding the

necessity of issuing separate consistency

determinations for each incremental

action controlled by the major activity.

A Federal agency may provide a State

agency with a general consistency

determination only in situations where

the incremental actions are repetitive

and do not affect any coastal use or

resource when performed separately. A

Federal agency and State agency may

mutually agree on a general consistency

determination for de minimis activities

(see § 930.33(a)(3)) or any other

repetitive activity or category of

activity(ies). If a Federal agency issues

a general consistency determination, it

shall thereafter periodically consult

with the State agency to discuss the

manner in which the incremental

actions are being undertaken.

(d) Phased consistency

determinations. In cases where the

Federal agency has sufficient

information to determine the

consistency of a proposed development

project or other activity from planning

to completion, the Federal agency shall

provide the State agency with one

consistency determination for the entire

activity or development project. In cases

where federal decisions related to a

proposed development project or other

activity will be made in phases based

upon developing information that was

not available at the time of the original

consistency determination, with each

subsequent phase subject to Federal

agency discretion to implement

alternative decisions based upon such

information (e.g., planning, siting, and

design decisions), a consistency

determination will be required for each

major decision. In cases of phased

decisionmaking, Federal agencies shall

ensure that the development project or

other activity continues to be consistent

to the maximum extent practicable with

the management program.

(e) National or regional consistency

determinations. (1) A Federal agency

may provide States with consistency

determinations for Federal agency

activities that are national or regional in

scope (e.g., rulemaking, national plans),

and that affect any coastal use or

resource of more than one State. Many

States share common coastal

management issues and have similar

enforceable policies, e.g., protection of a

particular coastal resource. The Federal

agency’s national or regional

consistency determination should, at a

minimum, address the common

denominator of these policies, i.e., the

common coastal effects and

management issues, and thereby address

different States’ policies with one

discussion and determination. If a

Federal agency decides not to use this

section, it must issue consistency

determinations to each State agency

pursuant to § 930.39.

(2) Federal agency activities with

coastal effects shall be consistent to the

maximum extent practicable with the

enforceable policies of each State’s

management program. Thus, the Federal

agency’s national or regional

consistency determination shall contain

sections that would apply to individual

States to address coastal effects and

enforceable policies unique to particular

States, if common coastal effects and

enforceable policies cannot be

addressed under paragraph (e)(1). Early

coordination with coastal States will

enable the Federal agency to identify

particular coastal management concerns

and policies. In addition, the Federal

agency could address the concerns of

each affected State by providing for

State conditions for the proposed

activity. Further, the consistency

determination could identify the

coordination efforts and describe how

the Federal agency responded to State

agency concerns.

§ 930.37 Consistency determinations and

National Environmental Policy Act (NEPA)

requirements

A Federal agency may use its NEPA

documents as a vehicle for its

consistency determination or negative

determination under this subpart.

However, a Federal agency’s federal

consistency obligations under the Act

are independent of those required under

NEPA and are not necessarily fulfilled

by the submission of a NEPA document.

If a Federal agency includes its

consistency determination or negative

determination in a NEPA document, the

Federal agency shall ensure that the

NEPA document includes the

information and adheres to the

timeframes required by this subpart.

Federal agencies and State agencies

should mutually agree on how to best

coordinate the requirements of NEPA

and the Act.

§ 930.38 Consistency determinations for

activities initiated prior to management

program approval.

(a) A consistency determination is

required for ongoing Federal agency

activities other than development

projects initiated prior to management

program approval, which are governed

by statutory authority under which the

Federal agency retains discretion to

reassess and modify the activity. In

these cases the consistency

determination must be made by the

Federal agency at the earliest practicable

time following management program

approval, and the State agency must be

provided with a consistency

determination no later than 120 days

after management program approval for

ongoing activities which the State

agency lists or identifies through

monitoring as subject to consistency

with the management program.

(b) A consistency determination is

required for major, phased federal

development project decisions

described in § 930.36(d) which are made

following management program

approval and are related to development

projects initiated prior to program

approval. In making these new

decisions, Federal agencies shall

consider effects on any coastal use or

resource not fully evaluated at the

outset of the project. This provision

shall not apply to phased federal

decisions which were specifically

described, considered and approved

prior to management program approval

(e.g., in a final environmental impact

statement issued pursuant to NEPA).

§ 930.39 Content of a consistency

determination.

(a) The consistency determination

shall include a brief statement

indicating whether the proposed

activity will be undertaken in a manner

consistent to the maximum extent

practicable with the enforceable policies

of the management program. The

statement must be based upon an

evaluation of the relevant enforceable

policies of the management program. A

description of this evaluation shall be

included in the consistency

determination, or provided to the State

agency simultaneously with the

consistency determination if the

evaluation is contained in another

document. Where a Federal agency is

aware, prior to its submission of its

consistency determination, that its

activity is not fully consistent with a

management program’s enforceable

policies, the Federal agency shall

describe in its consistency

determination the legal authority that

prohibits full consistency as required by

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77161

§ 930.32(a)(2). Where the Federal agency

is not aware of any inconsistency until

after submission of its consistency

determination, the Federal agency shall

submit its description of the legal

authority that prohibits full consistency

to the State agency as soon as possible,

or before the end of the 90-day period

described in § 930.36(b)(1). The

consistency determination shall also

include a detailed description of the

activity, its associated facilities, and

their coastal effects, and comprehensive

data and information sufficient to

support the Federal agency’s

consistency statement. The amount of

detail in the evaluation of the

enforceable policies, activity description

and supporting information shall be

commensurate with the expected coastal

effects of the activity. The Federal

agency may submit the necessary

information in any manner it chooses so

long as the requirements of this subpart

are satisfied.

(b) Federal agencies shall be guided

by the following in making their

consistency determinations. The activity

its effects on any coastal use or resource,

associated facilities (e.g., proposed

siting and construction of access road,

connecting pipeline, support buildings,

and the effects of the associated

facilities (e.g., erosion, wetlands, beach

access impacts), must all be consistent

to the maximum extent practicable with

the enforceable policies of the

management program.

(c) In making their consistency

determinations, Federal agencies shall

ensure that their activities are consistent

to the maximum extent practicable with

the enforceable, policies of the

management program. However, Federal

agencies should give consideration to

management program provisions which

are in the nature of recommendations.

(d) When Federal agency standards

are more restrictive than standards or

requirements contained in the

management program, the Federal

agency may continue to apply its stricter

standards. In such cases the Federal

agency shall inform the State agency in

the consistency determination of the

statutory, regulatory or other basis for

the application of the stricter standards.

(e) State permit requirements. Federal

law, other than the CZMA, may require

a Federal agency to obtain a State

permit. Even when Federal agencies are

not required to obtain State permits,

Federal agencies shall still be consistent

to the maximum extent practicable with

the enforceable policies that are

contained in such State permit programs

that are part of a management program.

§ 930.40 Multiple Federal agency

participation.

Whenever more than one Federal

agency is involved in a Federal agency

activity or its associated facilities

affecting any coastal use or resource, or

is involved in a group of Federal agency

activities related to each other because

of their geographic proximity, the

Federal agencies may prepare one

consistency determination for all the

federal activities involved. In such

cases, Federal agencies should consider

joint preparation or lead agency

development of the consistency

determination. In either case, the

consistency determination shall be

transmitted to the State agency at least

90 days before final decisions are taken

by any of the participating agencies and

shall comply with the requirements of

§ 930.39.

§ 930.41 State agency response.

(a) A State agency shall inform the

Federal agency of its concurrence with

or objection to the Federal agency’s

consistency determination at the earliest

practicable time, after providing for

public participation in the State

agency’s review of the consistency

determination. The Federal agency may

presume State agency concurrence if the

State agency’s response is not received

within 60 days from receipt of the

Federal agency’s consistency

determination and supporting

information. The 60-day review period

begins when the State agency receives

the consistency determination and

supporting information required by

§ 930.39(a). If the information required

by § 930.39(a) is not included with the

determination, the State agency shall

immediately notify the Federal agency

that the 60-day review period has not

begun, what information required by

§ 930.39(a) is missing, and that the 60-

day review period will begin when the

missing information is received by the

State agency. If a Federal agency has

submitted a consistency determination

and information required by § 930.39(a),

then the State agency shall not assert

that the 60-day review period has not

begun for failure to submit information

that is in addition to that required by

§ 930.39(a).

(b) State agency concurrence shall not

be presumed in cases where the State

agency, within the 60-day period,

requests an extension of time to review

the matter. Federal agencies shall

approve one request for an extension

period of 15 days or less. In considering

whether a longer or additional extension

period is appropriate, the Federal

agency should consider the magnitude

and complexity of the information

contained in the consistency

determination.

(c) Final Federal agency action shall

not be taken sooner than 90 days from

the receipt by the State agency of the

consistency determination unless the

State concurs or concurrence is

presumed, pursuant to paragraphs (a)

and (b), with the activity, or unless both

the Federal agency and the State agency

agree to an alternative period.

(d) Time limits on concurrences. A

State agency cannot unilaterally place

an expiration date on its concurrence. If

a State agency believes that an

expiration date is necessary, State and

Federal agencies may agree to a time

limit. If there is no agreement, later

phases of, or modifications to, the

activity that will have effects not

evaluated at the time of the original

consistency determination will require

either a new consistency determination,

a supplemental consistency

determination under § 930.46, or a

phased review under § 930.36(d) of this

subpart.

(e) State processing fees. The Act does

not require Federal agencies to pay State

processing fees. State agencies shall not

assess a Federal agency with a fee to

process the Federal agency’s

consistency determination unless

payment of such fees is required by

other federal law or otherwise agreed to

by the Federal agency and allowed by

the Comptroller General of the United

States. In no case may a State agency

stay the consistency review period or

base its objection on the failure of a

Federal agency to pay a fee.

§ 930.42 Public participation.

(a) Management programs shall

provide for public participation in the

State agency’s review of consistency

determinations. Public participation, at

a minimum, shall consist of public

notice for the area(s) of the coastal zone

likely to be affected by the activity, as

determined by the State agency.

(b) Timing of public notice. States

shall provide timely public notice after

the consistency determination has been

received by the State agency, except in

cases where earlier public notice on the

consistency determination by the

Federal agency or the State agency

meets the requirements of this section.

A public comment period shall be

provided by the State sufficient to give

the public an opportunity to develop

and provide comments on whether the

project is consistent with management

program enforceable policies and still

allow the State agency to issue its

concurrence or objection within the 60

day State response period.

77162 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

(c) Content of public notice. The

public notice shall:

(1) Specify that the proposed activity

is subject to review for consistency with

the enforceable policies of the

management program;

(2) Provide sufficient information to

serve as a basis for comment;

(3) Specify a source for additional

information, e.g., a State agency web

site; and

(4) Specify a contact for submitting

comments to the State agency.

(d) Procedural options that may be

used by the State agency for issuance of

public notice include, but are not

limited to, public notice through an

official State gazette, a local newspaper

serving areas of coastal zone likely to be

affected by the activity, individual State

mailings, public notice through a

management program newsletter, and

electronic notices, e.g., web sites.

However, electronic notices, e.g., web

sites, shall not be the sole source of a

public notification, but may be used in

conjunction with other means. Web

sites may be used to provide a location

for the public to obtain additional

information. States shall not require that

the Federal agency provide public

notice. Federal and State agencies are

encouraged to issue joint public notices,

and hold joint public hearings, to

minimize duplication of effort and to

avoid unnecessary delays, so long as the

joint notice meets the other

requirements of this section.

§ 930.43 State agency objection.

(a) In the event the State agency

objects to the Federal agency’s

consistency determination, the State

agency shall accompany its response to

the Federal agency with its reasons for

the objection and supporting

information. The State agency response

shall describe:

(1) How the proposed activity will be

inconsistent with specific enforceable

policies of the management program;

and

(2) The specific enforceable policies

(including citations).

(3) The State agency should also

describe alternative measures (if they

exist) which, if adopted by the Federal

agency, would allow the activity to

proceed in a manner consistent to the

maximum extent practicable with the

enforceable policies of the management

program. Failure to describe alternatives

does not affect the validity of the State

agency’s objection.

(b) If the State agency’s objection is

based upon a finding that the Federal

agency has failed to supply sufficient

information, the State agency’s response

must describe the nature of the

information requested and the necessity

of having such information to determine

the consistency of the Federal agency

activity with the enforceable policies of

the management program.

(c) State agencies shall send to the

Director a copy of objections to Federal

agency consistency determinations.

(d) In the event of an objection,

Federal and State agencies should use

the remaining portion of the 90-day

notice period (see § 930.36(b)) to

attempt to resolve their differences. If

resolution has not been reached at the

end of the 90-day period, Federal

agencies should consider using the

dispute resolution mechanisms of this

part and postponing final federal action

until the problems have been resolved.

At the end of the 90-day period the

Federal agency shall not proceed with

the activity over a State agency’s

objection unless:

(1) the Federal agency has concluded

that under the ‘‘consistent to the

maximum extent practicable’’ standard

described in section 930.32 consistency

with the enforceable policies of the

management program is prohibited by

existing law applicable to the Federal

agency and the Federal agency has

clearly described, in writing, to the State

agency the legal impediments to full

consistency (See §§ 930.32(a) and

930.39(a)), or

(2) the Federal agency has concluded

that its proposed action is fully

consistent with the enforceable policies

of the management program, though the

State agency objects.

(e) If a Federal agency decides to

proceed with a Federal agency activity

that is objected to by a State agency, or

to follow an alternative suggested by the

State agency, the Federal agency shall

notify the State agency of its decision to

proceed before the project commences.

§ 930.44 Availability of mediation for

disputes concerning proposed activities.

In the event of a serious disagreement

between a Federal agency and a State

agency regarding the consistency of a

proposed federal activity affecting any

coastal use or resource, either party may

request the Secretarial mediation or

OCRM mediation services provided for

in subpart G.

§ 930.45 Availability of mediation for

previously reviewed activities.

(a) Federal and State agencies shall

cooperate in their efforts to monitor

federally approved activities in order to

make certain that such activities

continue to be undertaken in a manner

consistent to the maximum extent

practicable with the enforceable policies

of the management program.

(b) The State agency may request that

the Federal agency take appropriate

remedial action following a serious

disagreement resulting from a Federal

agency activity, including those

activities where the State agency’s

concurrence was presumed, which was:

(1) Previously determined to be

consistent to the maximum extent

practicable with the management

program, but which the State agency

later maintains is being conducted or is

having an effect on any coastal use or

resource substantially different than

originally described and, as a result, is

no longer consistent to the maximum

extent practicable with the enforceable

policies of the management program; or

(2) Previously determined not to be a

Federal agency activity affecting any

coastal use or resource, but which the

State agency later maintains is being

conducted or is having an effect on any

coastal use or resource substantially

different than originally described and,

as a result, the activity affects any

coastal use or resource and is not

consistent to the maximum extent

practicable with the enforceable policies

of the management program. The State

agency’s request shall include

supporting information and a proposal

for recommended remedial action.

(c) If, after a reasonable time following

a request for remedial action, the State

agency still maintains that a serious

disagreement exists, either party may

request the Secretarial mediation or

OCRM mediation services provided for

in subpart G of this part.

§ 930.46 Supplemental coordination for

proposed activities.

(a) For proposed Federal agency

activities that were previously

determined by the State agency to be

consistent with the management

program, but which have not yet begun,

Federal agencies shall further

coordinate with the State agency and

prepare a supplemental consistency

determination if the proposed activity

will affect any coastal use or resource

substantially different than originally

described. Substantially different

coastal effects are reasonably foreseeable

if:

(1) The Federal agency makes

substantial changes in the proposed

activity that are relevant to management

program enforceable policies; or

(2) There are significant new

circumstances or information relevant to

the proposed activity and the proposed

activity’s effect on any coastal use or

resource.

(b) The State agency may notify the

Federal agency and the Director of

proposed activities which the State

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77163

agency believes should be subject to

supplemental coordination. The State

agency’s notification shall include

information supporting a finding of

substantially different coastal effects

than originally described and the

relevant enforceable policies, and may

recommend modifications to the

proposed activity (if any) that would

allow the Federal agency to implement

the proposed activity consistent with

the enforceable policies of the

management program. State agency

notification under this paragraph (b)

does not remove the requirement under

paragraph (a) of this section for Federal

agencies to notify State agencies.

Subpart D—Consistency for Activities

Requiring a Federal License or Permit

§ 930.50 Objectives.

The provisions of this subpart are

intended to ensure that any required

federal license or permit activity

affecting any coastal use or resource is

conducted in a manner consistent with

approved management programs. The

provisions of subpart I of this part are

intended to supplement the provisions

of this subpart for federal license or

permit activities having interstate

coastal effects.

§ 930.51 Federal license or permit.

(a) The term ‘‘federal license or

permit’’ means any required

authorization, certification, approval,

lease, or other form of permission which

any Federal agency is empowered to

issue to an applicant. The term does not

include OCS plans, and federal license

or permit activities described in detail

in OCS plans, which are subject to

subpart E of this part. The term ‘‘lease,’’

means a lease issued by a Federal

agency to a non-federal entity that

authorizes or approves the use of federal

property for a non-federal activity. The

term lease does not include leases

issued pursuant to lease sales conducted

by a Federal agency (e.g., outer

continental shelf (OCS) oil and gas lease

sales conducted by the Minerals

Management Service or oil and gas lease

sales conducted by the Bureau of Land

Management). Lease sales conducted by

a Federal agency are Federal agency

activities under subpart C of this part if

coastal effects are reasonably

foreseeable.

(b) The term also includes the

following types of renewals and major

amendments which affect any coastal

use or resource:

(1) Renewals and major amendments

of federal license or permit activities not

previously reviewed by the State

agency;

(2) Renewals and major amendments

of federal license or permit activities

previously reviewed by the State agency

which are filed after and are subject to

management program changes not in

existence at the time of original State

agency review; and

(3) Renewals and major amendments

of federal license or permit activities

previously reviewed by the State agency

which will cause an effect on any

coastal use or resource substantially

different than those originally reviewed

by the State agency.

(c) The term ‘‘major amendment’’ of a

federal license or permit activity means

any subsequent federal approval that the

applicant is required to obtain for

modification to the previously reviewed

and approved activity and where the

activity permitted by issuance of the

subsequent approval will affect any

coastal use or resource, or, in the case

of a major amendment subject to

§ 930.51(b)(3), affect any coastal use or

resource in a way that is substantially

different than the description or

understanding of effects at the time of

the original activity.

(d) The term ‘‘renewals’’ of a federal

license or permit activity means any

subsequent re-issuance, re-approval or

extension of an existing license or

permit that the applicant is required to

obtain for an activity described under

paragraph (b) of this section.

(e) The determination of substantially

different coastal effects under

paragraphs (b)(3), and (c) of this section

is made on a case-by-case basis by the

State agency, Federal agency and

applicant. The opinion of the State

agency shall be accorded deference and

the terms ‘‘major amendment,’’

‘‘renewals’’ and ‘‘substantially

different’’ shall be construed broadly to

ensure that the State agency has the

opportunity to review activities and

coastal effects not previously reviewed.

(f) This subpart applies to active

applications. If an applicant withdraws

its application to the Federal agency,

then the consistency process is

terminated. If the applicant reapplies to

the Federal agency, then a new

consistency review process will start. If

a Federal agency stops or stays the

Federal license or permit application

process, then the consistency review

period will be stopped or stayed for the

same amount of time as for the Federal

application process.

§ 930.52 Applicant.

The term ‘‘applicant’’ means any

individual, public or private

corporation, partnership, association, or

other entity organized or existing under

the laws of any nation, State, or any

State, regional, or local government,

who, following management program

approval, either files an application for

a required individual federal license or

permit, or who files a consistency

certification for a required general

federal license or permit under

§ 930.31(d) to conduct an activity

affecting any coastal use or resource.

The term ‘‘applicant’’ does not include

Federal agencies applying for federal

licenses or permits. Federal agency

activities requiring federal licenses or

permits are subject to subpart C of this

part.

§ 930.53 Listed federal license or permit

activities.

(a) State agencies shall develop a list

of federal license or permit activities

which affect any coastal use or resource,

including reasonably foreseeable effects,

and which the State agency wishes to

review for consistency with the

management program. The list shall be

included as part of the management

program, and the federal license or

permit activities shall be described in

terms of the specific licenses or permits

involved (e.g., Corps of Engineers 404

permits, Coast Guard bridge permits). In

the event the State agency chooses to

review federal license or permit

activities, with reasonably foreseeable

coastal effects, outside of the coastal

zone, it must generally describe the

geographic location of such activities.

(1) The geographic location

description should encompass areas

outside of the coastal zone where

coastal effects from federal license or

permit activities are reasonably

foreseeable. The State agency should

exclude geographic areas outside of the

coastal zone where coastal effects are

not reasonably foreseeable. Listed

activities may have different geographic

location descriptions, depending on the

nature of the activity and its coastal

effects. For example, the geographic

location for activities affecting water

resources or uses could be described by

shared water bodies, river basins,

boundaries defined under the State’s

coastal nonpoint pollution control

program, or other ecologically

identifiable areas. Federal lands located

within the boundaries of a State’s

coastal zone are automatically included

within the geographic location

description; State agencies do not have

to describe these areas. State agencies

do have to describe the geographic

location of listed activities occurring on

federal lands located beyond the

boundaries of a State’s coastal zone.

(2) For listed activities occurring

outside of the coastal zone for which a

State has not generally described the

77164 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

geographic location of review, States

must follow the conditions for review of

unlisted activities under § 930.54 of this

subpart.

(b) General concurrences for minor

activities. To avoid repeated review of

minor federal license or permit

activities which, while individually

inconsequential, cumulatively affect any

coastal use or resource, the State agency,

after developing conditions allowing

concurrence for such activities, may

issue a general public notice (see

§ 930.61) and general concurrence

allowing similar minor work in the

same geographic area to proceed

without prior State agency review. In

such cases, the State agency must set

forth in the management program

license and permit list the minor federal

license or permit activities and the

relevant conditions which are covered

by the general concurrence. Minor

federal license or permit activities

which satisfy the conditions of the

general concurrence are not subject to

the consistency certification

requirement of this subpart. Except in

cases where the State agency indicates

otherwise, copies of federal license or

permit applications for activities subject

to a general concurrence must be sent by

the applicant to the State agency to

allow the State agency to monitor

adherence to the conditions required by

such concurrence. Confidential and

proprietary material within such

applications may be deleted.

(c) The license and permit list may be

amended by the State agency following

consultation with the affected Federal

agency and approval by the Director

pursuant to the program change

requirements found at 15 CFR part 923,

subpart H.

(1) Consultation with the affected

Federal agency means, at least 60 days

prior to submitting a program change

request to OCRM, a State agency shall

notify in writing the relevant regional or

field Federal agency staff and the head

of the affected Federal agency, and

request comments on the listing change.

The notification shall describe the

proposed change and identify the

regional Federal agency staff the State

has contacted for consultation.

(2) A State agency must include in its

program change request to OCRM a

description of any comments received

from the affected Federal agency.

(d) No federal license or permit

described on an approved list shall be

issued by a Federal agency until the

requirements of this subpart have been

satisfied. Federal agencies shall inform

applicants for listed licenses or permits

of the requirements of this subpart.

§ 930.54 Unlisted federal license or permit

activities.

(a)(1) With the assistance of Federal

agencies, State agencies should monitor

unlisted federal license or permit

activities (e.g., by use of

intergovernmental review process

established pursuant to E.O. 12372,

review of NEPA documents, Federal

Register notices). State agencies shall

notify Federal agencies, applicants, and

the Director of unlisted activities

affecting any coastal use or resource

which require State agency review

within 30 days from notice of the

license or permit application, that has

been submitted to the approving Federal

agency, otherwise the State agency

waives its right to review the unlisted

activity. The waiver does not apply in

cases where the State agency does not

receive notice of the federal license or

permit application.

(2) Federal agencies or applicants

should provide written notice of the

submission of applications for federal

licenses or permits for unlisted

activities to the State agency. Notice to

the State agency may be constructive if

notice is published in an official federal

public notification document or through

an official State clearinghouse (i.e., the

Federal Register, draft or final NEPA

EISs that are submitted to the State

agency, or a State’s intergovernmental

review process). The notice, whether

actual or constructive, shall contain

sufficient information for the State

agency to learn of the activity,

determine the activity’s geographic

location, and determine whether coastal

effects are reasonably foreseeable.

(b) The State agency’s notification

shall also request the Director’s

approval to review the unlisted activity

and shall contain an analysis that

supports the State agency’s assertion

that coastal effects are reasonably

foreseeable. Following State agency

notification to the Federal agency,

applicant and the Director, the Federal

agency shall not issue the license or

permit until the requirements of this

subpart have been satisfied, unless the

Director disapproves the State agency’s

request to review the activity.

(c) The Federal agency and the

applicant have 15 days from receipt of

the State agency notice to provide

comments to the Director regarding the

State agency’s request to review the

activity. The sole basis for the Director’s

approval or disapproval of the State

agency’s request will relate to whether

the proposed activity’s coastal effects

are reasonably foreseeable. The Director

shall issue a decision, with supporting

comments, to the State agency, Federal

agency and applicant within 30 days

from receipt of the State agency notice.

The Director may extend the decision

deadline beyond 30 days due to the

complexity of the issues or to address

the needs of the State agency, the

Federal agency, or the applicant. The

Director shall consult with the State

agency, the Federal agency and the

applicant prior to extending the

decision deadline, and shall limit the

extension to the minimum time

necessary to make its decision. The

Director shall notify the relevant parties

of the expected length of an extension.

(d) If the Director disapproves the

State agency’s request, the Federal

agency may approve the license or

permit application and the applicant

need not comply with the requirements

of this subpart. If the Director approves

the State agency’s request, the Federal

agency and applicant must comply with

the consistency certification procedures

of this subpart.

(e) Following an approval by the

Director, the applicant shall amend the

federal application by including a

consistency certification and shall

provide the State agency with a copy of

the certification along with necessary

data and information (see §§ 930.58,

930.62 and 930.63). For the purposes of

this section, concurrence by the State

agency shall be conclusively presumed

in the absence of a State agency

objection within six months from the

original Federal agency notice to the

State agency (see paragraph (a) of this

section) or within three months from

receipt of the applicant’s consistency

certification and necessary data and

information, whichever period

terminates last.

(f) The unlisted activity procedures in

this section are provided to ensure that

State agencies are afforded an

opportunity to review federal license or

permit activities with reasonably

foreseeable coastal effects. Prior to

bringing the issue before the Director,

the concerned parties should discuss

coastal effects and consistency. The

applicant can avoid delay by simply

seeking the State agency’s expeditious

concurrence rather than waiting for the

Director’s decision. If an applicant, of its

own accord or after negotiations with

the State agency, provides a consistency

certification and necessary data and

information to the State agency, the

review shall be deemed to have received

the Director’s approval, and all of the

provisions of this subpart shall apply

and the State agency need not request

the Director’s approval. If an applicant

for an unlisted activity has not subjected

itself to the consistency process within

the 30 day notification period contained

in paragraph (a) of this section, the State

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77165

agency must adhere to the unlisted

activity review requirements of this

section to preserve its right to review

the activity.

§ 930.55 Availability of mediation for

license or permit disputes.

In the event of a serious disagreement

between a Federal and State agency

regarding whether a listed or unlisted

federal license or permit activity is

subject to the federal consistency

requirement, either party may request

the OCRM mediation or Secretarial

mediation services provided for in

subpart G of this part; notice shall be

provided to the applicant. The existence

of a serious disagreement will not

relieve the Federal agency from the

responsibility for withholding approval

of a license or permit application for an

activity on an approved management

program list (see § 930.53) or

individually approved by the Director

(see § 930.54) pending satisfaction of the

requirements of this subpart. Similarly,

the existence of a serious disagreement

will not prevent the Federal agency

from approving a license or permit

activity which has not received Director

approval.

§ 930.56 State agency guidance and

assistance to applicants.

As a preliminary matter, any

applicant for a federal license or permit

selected for review by a State agency

should obtain the views and assistance

of the State agency regarding the means

for ensuring that the proposed activity

will be conducted in a manner

consistent with the management

program. As part of its assistance efforts,

the State agency shall make available for

public inspection copies of the

management program document. Upon

request by the applicant, the State

agency shall identify any enforceable

policies applicable to the proposed

activity, based upon the information

submitted to the State agency.

§ 930.57 Consistency certifications.

(a) Following appropriate

coordination and cooperation with the

State agency, all applicants for required

federal licenses or permits subject to

State agency review shall provide in the

application to the federal licensing or

permitting agency a certification that the

proposed activity complies with and

will be conducted in a manner

consistent with the management

program. At the same time, the

applicant shall furnish to the State

agency a copy of the certification and

necessary data and information.

(b) The applicant’s consistency

certification shall be in the following

form: ‘‘The proposed activity complies

with the enforceable policies of (name

of State) approved management program

and will be conducted in a manner

consistent with such program.’’

§ 930.58 Necessary data and information.

(a) The applicant shall furnish the

State agency with necessary data and

information along with the consistency

certification. Such information and data

shall include the following:

(1) A detailed description of the

proposed activity, its associated

facilities, the coastal effects, and

comprehensive data and information

sufficient to support the applicant’s

consistency certification. Maps,

diagrams, technical data and other

relevant material shall be submitted

when a written description alone will

not adequately describe the proposal (a

copy of the federal application and all

supporting material provided to the

Federal agency should also be submitted

to the State agency);

(2) Information specifically identified

in the management program as required

necessary data and information for an

applicant’s consistency certification.

The management program as originally

approved or amended (pursuant to 15

CFR part 923, subpart H) may describe

data and information necessary to assess

the consistency of federal license or

permit activities. Necessary data and

information may include State or local

government permits or permit

applications which are required for the

proposed activity. Required data and

information may not include

confidential and proprietary material;

and

(3) An evaluation that includes a set

of findings relating the coastal effects of

the proposal and its associated facilities

to the relevant enforceable policies of

the management program. Applicants

shall demonstrate that the activity will

be consistent with the enforceable

policies of the management program.

Applicants shall demonstrate adequate

consideration of policies which are in

the nature of recommendations.

Applicants need not make findings with

respect to coastal effects for which the

management program does not contain

enforceable or recommended policies.

(b) At the request of the applicant,

interested parties who have access to

information and data required by this

section may provide the State agency

with all or part of the material required.

Furthermore, upon request by the

applicant, the State agency shall provide

assistance for developing the assessment

and findings required by this section.

(c) When satisfied that adequate

protection against public disclosure

exists, applicants should provide the

State agency with confidential and

proprietary information which the State

agency maintains is necessary to make

a reasoned decision on the consistency

of the proposal. State agency requests

for such information must be related to

the necessity of having such information

to assess adequately the coastal effects

of the proposal.

§ 930.59 Multiple permit review.

(a) Applicants shall, to the extent

practicable, consolidate related federal

license or permit activities affecting any

coastal use or resource for State agency

review. State agencies shall, to the

extent practicable, provide applicants

with a ‘‘one-stop’’ multiple permit

review for consolidated permits to

minimize duplication of effort and to

avoid unnecessary delays.

(b) A State agency objection to one or

more of the license or permit activities

submitted for consolidated review shall

not prevent the applicant from receiving

Federal agency approval for those

license or permit activities found to be

consistent with the management

program.

§ 930.60 Commencement of State agency

review.

(a) Except as provided in § 930.54(e)

and paragraph (a)(1) of this section,

State agency review of an applicant’s

consistency certification begins at the

time the State agency receives a copy of

the consistency certification, and the

information and data required pursuant

to § 930.58.

(1) If an applicant fails to submit a

consistency certification in accordance

with § 930.57, or fails to submit

necessary data and information required

pursuant to § 930.58, the State agency

shall, within 30 days of receipt of the

incomplete information, notify the

applicant and the Federal agency of the

missing certification or information, and

that:

(i) The State agency’s review has not

yet begun, and that its review will

commence once the necessary

certification or information deficiencies

have been corrected; or

(ii) The State agency’s review has

begun, and that the certification or

information deficiencies must be cured

by the applicant during the State’s

review period.

(2) Under paragraph (a)(1) of this

section, State agencies shall notify the

applicant and the Federal agency,

within 30 days of receipt of the

completed certification and information,

of the date when necessary certification

or information deficiencies have been

corrected, and that the State agency’s

77166 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

consistency review commenced on the

date that the complete certification and

necessary data and information were

received by the State agency.

(3) State agencies and applicants (and

persons under subpart E of this part)

may mutually agree to stay the

consistency timeclock or extend the sixmonth review period. Such an

agreement shall be in writing and shall

be provided to the Federal agency. A

Federal agency shall not presume State

agency concurrence with an activity

where such an agreement exists or

where a State agency’s review period,

under paragraph (a)(1)(i) of this section,

has not begun.

(b) A State agency request for

information or data in addition to that

required by § 930.58 shall not extend

the date of commencement of State

agency review.

§ 930.61 Public participation.

(a) Following receipt of the material

described in § 930.60 the State agency

shall ensure timely public notice of the

proposed activity. Public notice shall be

provided for the area(s) of the coastal

zone likely to be affected by the

proposed activity, as determined by the

State agency. At the discretion of the

State agency, public participation may

include one or more public hearings.

The State agency shall not require an

applicant or a Federal agency to hold a

public hearing. State agencies should

restrict the period of public notice,

receipt of comments, hearing

proceedings and final decision-making

to the minimum time necessary to

reasonably inform the public, obtain

sufficient comment, and develop a

decision on the matter.

(b) Content of public notice. The

public notice shall:

(1) Specify that the proposed activity

is subject to review for consistency

under the policies of the management

program;

(2) Provide sufficient information to

serve as a basis for comment;

(3) Specify a source for additional

information; and

(4) Specify a contact for submitting

comments to the management program.

(c) Procedural options that may be

used by the State agency for issuance of

public notice include, but are not

limited to, public notice through an

official State gazette, a local newspaper

serving areas of the coastal zone likely

to be affected by the activity, individual

State mailings, public notice through a

management program newsletter, and

electronic notices, e.g., web sites.

However, electronic notices, e.g., web

sites, shall not be the sole source of a

public notification, but may be used in

conjunction with other means. Web

sites may be used to provide a location

for the public to obtain additional

information. The State agency may

require the applicant to provide the

public notice. State agencies shall not

require that the Federal agency provide

public notice. The State agency may rely

upon the public notice provided by the

Federal agency reviewing the

application for the federal license or

permit (e.g., notice of availability of

NEPA documents) if such notice

satisfies the minimum requirements set

forth in paragraphs (a) and (b) of this

section.

(d) Federal and State agencies are

encouraged to issue joint public notices,

and hold joint public hearings,

whenever possible to minimize

duplication of effort and to avoid

unnecessary delays.

§ 930.62 State agency concurrence with a

consistency certification.

(a) At the earliest practicable time, the

State agency shall notify the Federal

agency and the applicant whether the

State agency concurs with or objects to

a consistency certification. The State

agency may issue a general concurrence

for minor activities (see § 930.53(b)).

Concurrence by the State agency shall

be conclusively presumed if the State

agency’s response is not received within

six months following commencement of

State agency review.

(b) If the State agency has not issued

a decision within three months

following commencement of State

agency review, it shall notify the

applicant and the Federal agency of the

status of the matter and the basis for

further delay.

(c) If the State agency issues a

concurrence or is conclusively

presumed to concur with the applicant’s

consistency certification, the Federal

agency may approve the federal license

or permit application. Notwithstanding

State agency concurrence with a

consistency certification, the federal

permitting agency may deny approval of

the federal license or permit

application. Federal agencies should not

delay processing applications pending

receipt of a State agency’s concurrence.

In the event a Federal agency

determines that an application will not

be approved, it shall immediately notify

the applicant and the State agency.

(d) During the period when the State

agency is reviewing the consistency

certification, the applicant and the State

agency should attempt, if necessary, to

agree upon conditions, which, if met by

the applicant, would permit State

agency concurrence. The parties shall

also consult with the Federal agency

responsible for approving the federal

license or permit to ensure that

proposed conditions satisfy federal as

well as management program

requirements (see also § 930.4).

§ 930.63 State agency objection to a

consistency certification.

(a) If the State agency objects to the

applicant’s consistency certification

within six months following

commencement of review, it shall notify

the applicant, Federal agency and

Director of the objection. A State agency

may assert alternative bases for its

objection, as described in paragraphs (b)

and (c) of this section.

(b) State agency objections that are

based on sufficient information to

evaluate the applicant’s consistency

certification shall describe how the

proposed activity is inconsistent with

specific enforceable policies of the

management program. The objection

may describe alternative measures (if

they exist) which, if adopted by the

applicant, may permit the proposed

activity to be conducted in a manner

consistent with the enforceable policies

of the management program.

(c) A State agency objection may be

based upon a determination that the

applicant has failed, following a written

State agency request, to supply the

information required pursuant to

§ 930.58 or other information necessary

for the State agency to determine

consistency. If the State agency objects

on the grounds of insufficient

information, the objection shall describe

the nature of the information requested

and the necessity of having such

information to determine the

consistency of the activity with the

management program. The objection

may describe alternative measures (if

they exist) which, if adopted by the

applicant, may permit the proposed

activity to be conducted in a manner

consistent with the enforceable policies

of the management program.

(d) Alternatives. If a State agency

proposes an alternative(s) in its

objection letter, the alternative(s) shall

be described with sufficient specificity

to allow the applicant to determine

whether to, in consultation with the

State agency: adopt an alternative;

abandon the project; or file an appeal

under subpart H. Application of the

specificity requirement demands a case

specific approach. More complicated

activities or alternatives generally need

more information than less-complicated

activities or alternatives. See

§ 930.121(d) for further details regarding

alternatives for appeals under subpart H

of this part.

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77167

(e) A State agency objection shall

include a statement to the following

effect:

Pursuant to 15 CFR part 930, subpart H,

and within 30 days from receipt of this letter,

you may request that the Secretary of

Commerce override this objection. In order to

grant an override request, the Secretary must

find that the activity is consistent with the

objectives or purposes of the Coastal Zone

Management Act, or is necessary in the

interest of national security. A copy of the

request and supporting information must be

sent to the [Name of State] management

program and the federal permitting or

licensing agency. The Secretary may collect

fees from you for administering and

processing your request.

§ 930.64 Federal permitting agency

responsibility.

Following receipt of a State agency

objection to a consistency certification,

the Federal agency shall not issue the

federal license or permit except as

provided in subpart H of this part.

§ 930.65 Remedial action for previously

reviewed activities.

(a) Federal and State agencies shall

cooperate in their efforts to monitor

federal license or permit activities in

order to make certain that such

activities continue to conform to both

federal and State requirements.

(b) The State agency shall notify the

relevant Federal agency representative

for the area involved of any federal

license or permit activity which the

State agency claims was:

(1) Previously determined to be

consistent with the management

program, but which the State agency

later maintains is being conducted or is

having an effect on any coastal use or

resource substantially different than

originally described and, as a result, is

no longer consistent with the

management program; or

(2) Previously determined not to be an

activity affecting any coastal use or

resource, but which the State agency

later maintains is being conducted or is

having coastal effects substantially

different than originally described and,

as a result, the activity affects any

coastal use or resource in a manner

inconsistent with the management

program.

(c) The State agency notification shall

include:

(1) A description of the activity

involved and the alleged lack of

compliance with the management

program;

(2) supporting information; and

(3) a request for appropriate remedial

action. A copy of the request shall be

sent to the applicant and the Director.

Remedial actions shall be linked to

coastal effects substantially different

than originally described.

(d) If, after 30 days following a request

for remedial action, the State agency

still maintains that the applicant is

failing to comply substantially with the

management program, the governor or

State agency may file a written objection

with the Director. If the Director finds

that the applicant is conducting an

activity that is substantially different

from the approved activity, the

applicant shall submit an amended or

new consistency certification and

supporting information to the Federal

agency and to the State agency, or

comply with the originally approved

certification.

(e) An applicant shall be found to be

conducting an activity substantially

different from the approved activity if

the State agency claims and the Director

finds that the activity affects any coastal

use or resource substantially different

than originally described by the

applicant and, as a result, the activity is

no longer being conducted in a manner

consistent with the enforceable policies

of the management program. The

Director may make a finding that an

applicant is conducting an activity

substantially different from the

approved activity only after providing

15 days for the applicant and the

Federal agency to review the State

agency’s objection and to submit

comments for the Director’s

consideration.

§ 930.66 Supplemental coordination for

proposed activities

(a) For federal license or permit

proposed activities that were previously

determined by the State agency to be

consistent with the management

program, but which have not yet begun,

applicants shall further coordinate with

the State agency and prepare a

supplemental consistency certification

if the proposed activity will affect any

coastal use or resource substantially

different than originally described.

Substantially different coastal effects are

reasonably foreseeable if:

(1) The applicant makes substantial

changes in the proposed activity that are

relevant to management program

enforceable policies; or

(2) There are significant new

circumstances or information relevant to

the proposed activity and the proposed

activity’s effect on any coastal use or

resource.

(b) The State agency may notify the

applicant, the Federal agency and the

Director of proposed activities which

the State agency believes should be

subject to supplemental coordination.

The State agency’s notification shall

include information supporting a

finding of substantially different coastal

effects than originally described and the

relevant enforceable policies, and may

recommend modifications to the

proposed activity (if any) that would

allow the applicant to implement the

proposed activity consistent with the

management program. State agency

notification under subsection (b) does

not remove the requirement under

subsection (a) for applicants to notify

State agencies.

Subpart E—Consistency for Outer

Continental Shelf (OCS) Exploration,

Development and Production Activities

§ 930.70 Objectives.

The provisions of this subpart are

intended to ensure that all federal

license or permit activities described in

detail in OCS plans and which affect

any coastal use or resource are

conducted in a manner consistent with

approved management programs.

§ 930.71 Federal license or permit activity

described in detail.

The term ‘‘federal license or permit

activity described in detail’’ means any

activity requiring a federal license or

permit, as defined in § 930.51, which

the Secretary of the Interior determines

must be described in detail within an

OCS plan.

§ 930.72 Person.

The term ‘‘person’’ means any

individual, corporation, partnership,

association, or other entity organized or

existing under the laws of any State; the

federal government; any State, regional,

or local government; or any entity of

such federal, State, regional or local

government, who submits to the

Secretary of the Interior, or designee

following management program

approval, an OCS plan which describes

in detail federal license or permit

activities.

§ 930.73 OCS plan.

(a) The term ‘‘OCS plan’’ means any

plan for the exploration or development

of, or production from, any area which

has been leased under the Outer

Continental Shelf Lands Act (43 U.S.C.

1331 et seq.), and the regulations under

that Act, which is submitted to the

Secretary of the Interior or designee

following management program

approval and which describes in detail

federal license or permit activities.

(b) The requirements of this subpart

do not apply to federal license or permit

applications filed after management

program approval for activities

described in detail in OCS plans

approved by the Secretary of the Interior

77168 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

or designee prior to management

program approval.

§ 930.74 OCS activities subject to State

agency review.

Except for States which do not

anticipate coastal effects resulting from

OCS activities, management program

lists required pursuant to § 930.53 shall

include a reference to OCS plans which

describe in detail federal license or

permit activities affecting any coastal

use or resource.

§ 930.75 State agency assistance to

persons.

As a preliminary matter, any person

intending to submit to the Secretary of

the Interior an OCS plan which

describes in detail federal license or

permit activities affecting any coastal

use or resource should obtain the views

and assistance of the State agency

regarding the means for ensuring that

such activities will be conducted in a

manner consistent with the management

program. As part of its assistance efforts,

the State agency shall make available for

inspection copies of the management

program document. Upon request by

such persons, the State agency shall

identify any enforceable policies

applicable to the proposed activities,

based upon the information submitted

to the State agency.

§ 930.76 Submission of an OCS plan,

necessary data and information and

consistency certification.

Any person submitting any OCS plan

to the Secretary of the Interior or

designee shall:

(a) Identify all activities described in

detail in the plan which require a

federal license or permit and which will

have reasonably foreseeable coastal

effects;

(b) Submit necessary data and

information pursuant to § 930.58;

(c) When satisfied that the proposed

activities meet the federal consistency

requirements of this subpart, provide

the Secretary of the Interior or designee

with a consistency certification and

necessary data and information. The

Secretary of the Interior or designee

shall furnish the State agency with a

copy of the OCS plan (excluding

proprietary information), necessary data

and information and consistency

certification.

(d) The person’s consistency

certification shall be in the following

form:

The proposed activities described in detail

in this plan comply with (name of State(s))

approved management program(s) and will

be conducted in a manner consistent with

such program(s).

§ 930.77 Commencement of State agency

review and public notice.

(a)(1) Except as provided in

§ 930.60(a), State agency review of the

person’s consistency certification begins

at the time the State agency receives a

copy of the OCS plan, consistency

certification, and required necessary

data and information. A State agency

request for information and data in

addition to that required by § 930.76

shall not extend the date of

commencement of State agency review.

(2) To assess consistency, the State

agency shall use the information

submitted pursuant to the Department

of the Interior’s OCS operating

regulations (see 30 CFR 250.203 and

250.204) and OCS information program

(see 30 CFR part 252) regulations and

necessary data and information (see 15

CFR 930.58).

(b) Following receipt of the material

described in paragraph (a) of this

section, the State agency shall ensure

timely public notice of the proposed

activities in accordance with § 930.61.

§ 930.78 State agency concurrence or

objection.

(a) At the earliest practicable time, the

State agency shall notify in writing the

person, the Secretary of the Interior or

designee and the Director of its

concurrence with or objection to the

consistency certification. State agencies

should restrict the period of public

notice, receipt of comments, hearing

proceedings and final decision-making

to the minimum time necessary to

reasonably inform the public, obtain

sufficient comment, and develop a

decision on the matter. If the State

agency has not issued a decision within

three months following commencement

of State agency review, it shall notify

the person, the Secretary of the Interior

or designee and the Director of the

status of review and the basis for further

delay in issuing a final decision. Notice

shall be in written form and postmarked

no later than three months following the

commencement of the State agency’s

review. Concurrence by the State agency

shall be conclusively presumed if the

notification required by this

subparagraph is not provided.

(b) Concurrence by the State agency

shall be conclusively presumed if the

State agency’s response to the

consistency certification is not received

within six months following

commencement of State agency review.

(c) If the State agency objects to one

or more of the federal license or permit

activities described in detail in the OCS

plan, it must provide a separate

discussion for each objection in

accordance with § 930.63.

§ 930.79 Effect of State agency

concurrence.

(a) If the State agency issues a

concurrence or is conclusively

presumed to concur with the person’s

consistency certification, the person

will not be required to submit

additional consistency certifications and

supporting information for State agency

review at the time federal applications

are actually filed for the federal licenses

or permits to which such concurrence

applies.

(b) Unless the State agency indicates

otherwise, copies of federal license or

permit applications for activities

described in detail in an OCS plan

which has received State agency

concurrence shall be sent by the person

to the State agency to allow the State

agency to monitor the activities.

Confidential and proprietary material

within such applications may be

deleted.

§ 930.80 Federal permitting agency

responsibility.

Following receipt of a State agency

objection to a consistency certification

related to federal license or permit

activities described in detail in an OCS

plan, the Federal agency shall not issue

any of such licenses or permits except

as provided in subpart H of this part.

§ 930.81 Multiple permit review.

(a) A person submitting a consistency

certification for federal license or permit

activities described in detail in an OCS

plan is strongly encouraged to work

with other Federal agencies in an effort

to include, for consolidated State agency

review, consistency certifications and

supporting data and information

applicable to OCS-related federal

license or permit activities affecting any

coastal use or resource which are not

required to be described in detail in

OCS plans but which are subject to State

agency consistency review (e.g., Corps

of Engineer permits for the placement of

structures on the OCS and for dredging

and the transportation of dredged

material, Environmental Protection

Agency air and water quality permits for

offshore operations and onshore support

and processing facilities). In the event

the person does not consolidate such

OCS-related permit activities with the

State agency’s review of the OCS plan,

such activities will remain subject to

individual State agency review under

the requirements of subpart D of this

part.

(b) A State agency objection to one or

more of the OCS-related federal license

or permit activities submitted for

consolidated review shall not prevent

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77169

the person from receiving Federal

agency approval:

(1) For those OCS-related license or

permit activities found by the State

agency to be consistent with the

management program; and

(2) For the license or permit activities

described in detail in the OCS plan

provided the State agency concurs with

the consistency certification for such

plan. Similarly, a State agency objection

to the consistency certification for an

OCS plan shall not prevent the person

from receiving Federal agency approval

for those OCS-related license or permit

activities determined by the State

agency to be consistent with the

management program.

§ 930.82 Amended OCS plans.

If the State agency objects to the

person’s OCS plan consistency

certification, and/or if, pursuant to

subpart H of this part, the Secretary

does not determine that each of the

objected to federal license or permit

activities described in detail in such

plan is consistent with the objectives or

purposes of the Act, or is necessary in

the interest of national security, and if

the person still intends to conduct the

activities described in the OCS plan, the

person shall submit an amended plan to

the Secretary of the Interior or designee

and to the State agency along with a

consistency certification and data and

information necessary to support the

amended consistency certification. The

data and information shall specifically

describe modifications made to the

original OCS plan, and the manner in

which such modifications will ensure

that all of the proposed federal license

or permit activities described in detail

in the amended plan will be conducted

in a manner consistent with the

management program.

§ 930.83 Review of amended OCS plans;

public notice.

After receipt of a copy of the amended

OCS plan, consistency certification, and

necessary data and information, State

agency review shall begin. The

requirements of §§ 930.77, 930.78, and

930.79, apply to the review of amended

OCS plans, except that the applicable

time period for purposes of concurrence

by conclusive presumption shall be

three months instead of six months.

§ 930.84 Continuing State agency

objections.

If the State agency objects to the

consistency certification for an amended

OCS plan, the prohibition in § 930.80

against Federal agency approval of

licenses or permits for activities

described in detail in such a plan

applies, further Secretarial review

pursuant to subpart H of this part may

take place, and the development of an

additional amended OCS plan and

consistency certification may be

required pursuant to §§ 930.82 through

930.83.

§ 930.85 Failure to comply substantially

with an approved OCS plan.

(a) The Department of the Interior and

State agencies shall cooperate in their

efforts to monitor federally licensed or

permitted activities described in detail

OCS plans to make certain that such

activities continue to conform to both

federal and State requirements.

(b) If a State agency claims that a

person is failing substantially to comply

with an approved OCS plan subject to

the requirements of this subpart, and

such failure allegedly involves the

conduct of activities affecting any

coastal use or resource in a manner that

is not consistent with the approved

management program, the State agency

shall transmit its claim to the Minerals

Management Service region involved.

Such claim shall include: a description

of the specific activity involved and the

alleged lack of compliance with the OCS

plan, and a request for appropriate

remedial action. A copy of the claim

shall be sent to the person and the

Director.

(c) If, after 30 days following a request

for remedial action, the State agency

still maintains that the person is failing

to comply substantially with the OCS

plan, the governor or State agency may

file a written objection with the

Director. If the Director finds that the

person is failing to comply substantially

with the OCS plan, the person shall

submit an amended or new OCS plan

along with a consistency certification

and supporting information to the

Secretary of the Interior or designee and

to the State agency. Following such a

finding by the Director, the person shall

comply with the originally approved

OCS plan, or with interim orders issued

jointly by the Director and the Minerals

Management Service, pending approval

of the amended or new OCS plan.

Sections 930.82 through 930.84 shall

apply to further State agency review of

the consistency certification for the

amended or new plan.

(d) A person shall be found to have

failed substantially to comply with an

approved OCS plan if the State agency

claims and the Director finds that one or

more of the activities described in detail

in the OCS plan which affects any

coastal use or resource are being

conducted or are having an effect on any

coastal use or resource substantially

different than originally described by

the person in the plan or accompanying

information and, as a result, the

activities are no longer being conducted

in a manner consistent with the

management program. The Director may

make a finding that a person has failed

substantially to comply with an

approved OCS plan only after providing

a reasonable opportunity for the person

and the Secretary of the Interior to

review the State agency’s objection and

to submit comments for the Director’s

consideration.

Subpart F—Consistency for Federal

Assistance To State and Local

Governments

§ 930.90 Objectives.

The provisions of this subpart are

intended to ensure that federal

assistance to applicant agencies for

activities affecting any coastal use or

resource is granted only when such

activities are consistent with approved

management programs. The provisions

of subpart I of this part are intended to

supplement the provisions of this

subpart for federal assistance activities

having interstate coastal effects.

§ 930.91 Federal assistance.

The term ‘‘federal assistance’’ means

assistance provided under a federal

program to an applicant agency through

grant or contractual arrangements,

loans, subsidies, guarantees, insurance,

or other form of financial aid.

§ 930.92 Applicant agency.

The term ‘‘applicant agency’’ means

any unit of State or local government, or

any related public entity such as a

special purpose district, which,

following management program

approval, submits an application for

federal assistance.

§ 930.93 Intergovernmental review

process.

The term ‘‘intergovernmental review

process’’ describes the procedures

established by States pursuant to E.O.

12372, ‘‘Intergovernmental Review of

Federal Programs,’’ and implementing

regulations of the review of federal

financial assistance to applicant

agencies.

§ 930.94 State review process for

consistency.

(a) States with approved management

programs should review applications

from applicant agencies for federal

assistance in accordance with E.O.

12372 and implementing regulations.

(b) The applicant agency shall submit

an application for federal assistance to

the State agency for consistency review,

through the intergovernmental review

77170 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

process or by direct submission to the

State agency, for any proposed federal

assistance activity that is listed in the

management program as a type of

activity that will have a reasonably

foreseeable effect on any coastal use or

resource and occurring within the

coastal zone (see § 930.95(a)) or within

a described geographic area outside of

the coastal zone (see § 930.95(b)).

(c) Applicant agency evaluation. The

applicant agency shall provide to the

State agency, in addition to the federal

application, a brief evaluation on the

relationship of the proposed activity

and any reasonably foreseeable coastal

effects to the enforceable policies of the

management program.

§ 930.95 Guidance provided by the State

agency.

(a) State agencies should include

within the management program a

listing of specific types of federal

assistance programs subject to a

consistency review. Such a listing, and

any amendments, will require prior

State agency consultation with affected

Federal agencies and approval by the

Director as a program change.

(b) In the event the State agency

chooses to review applications for

federal assistance activities outside of

the coastal zone but with reasonably

foreseeable coastal effects, the State

agency shall develop a federal

assistance provision within the

management program generally

describing the geographic area (e.g.,

coastal floodplains) within which

federal assistance activities will be

subject to review. This provision, and

any refinements, will require prior State

agency consultation with affected

Federal agencies and approval by the

Director as a program change. Listed

activities may have different geographic

location descriptions, depending on the

nature of the activity and its effects on

any coastal use or resource. For

example, the geographic location for

activities affecting water resources or

uses could be described by shared water

bodies, river basins, boundaries defined

under the coastal nonpoint pollution

control program, or other ecologically

identifiable areas.

(c) The State agency shall provide

copies of any federal assistance list or

geographic provision, and any

refinements, to Federal agencies and

units of applicant agencies empowered

to undertake federally assisted activities

within the coastal zone or described

geographic area.

(d) For review of unlisted federal

assistance activities, the State agency

shall follow the same procedures as it

would follow for review of listed federal

assistance activities outside of the

coastal zone or the described geographic

area. (See § 930.98.)

§ 930.96 Consistency review.

(a)(1) If the State agency does not

object to the proposed activity, the

Federal agency may grant the federal

assistance to the applicant agency.

Notwithstanding State agency

consistency approval for the proposed

project, the Federal agency may deny

assistance to the applicant agency.

Federal agencies should not delay

processing (so long as they do not

approve) applications pending receipt of

a State agency approval or objection. In

the event a Federal agency determines

that an application will not be

approved, it shall immediately notify

the applicant agency and the State

agency.

(2) During the period when the State

agency is reviewing the activity, the

applicant agency and the State agency

should attempt, if necessary, to agree

upon conditions which, if met by the

applicant agency, would permit State

agency approval. The parties shall also

consult with the Federal agency

responsible for providing the federal

assistance to ensure that proposed

conditions satisfy federal requirements

as well as management program

requirements.

(b) If the State agency objects to the

proposed project, the State agency shall

notify the applicant agency, Federal

agency and the Director of the objection

pursuant to § 930.63.

§ 930.97 Federal assisting agency

responsibility.

Following receipt of a State agency

objection, the Federal agency shall not

approve assistance for the activity

except as provided in subpart H of this

part.

§ 930.98 Federally assisted activities

outside of the coastal zone or the described

geographic area.

State agencies should monitor

proposed federal assistance activities

outside of the coastal zone or the

described geographic area (e.g., by use

of the intergovernmental review

process, review of NEPA documents,

Federal Register) and shall immediately

notify applicant agencies, Federal

agencies, and any other agency or office

which may be identified by the State in

its intergovernmental review process

pursuant to E.O. 12372 of proposed

activities which will have reasonably

foreseeable coastal effects and which the

State agency is reviewing for

consistency with the management

program. Notification shall also be sent

by the State agency to the Director. The

Director, in his/her discretion, may

review the State agency’s decision to

review the activity. The Director may

disapprove the State agency’s decision

to review the activity only if the

Director finds that the activity will not

affect any coastal use or resource. The

Director shall be guided by the

provisions in § 930.54(c). For purposes

of this subpart, State agencies must

inform the parties of objections within

the time period permitted under the

intergovernmental review process,

otherwise the State agency waives its

right to object to the proposed activity.

§ 930.99 Availability of mediation for

federal assistance disputes.

In the event of a serious disagreement

between a Federal agency and the State

agency regarding whether a federal

assistance activity is subject to the

consistency requirement either party

may request the OCRM mediation or

Secretarial mediation services provided

for in subpart G of this part. The

existence of a serious disagreement will

not relieve the Federal agency from the

responsibility for withholding federal

assistance for the activity pending

satisfaction of the requirements of this

subpart, except in cases where the

Director has disapproved a State agency

decision to review an activity.

§ 930.100 Remedial action for previously

reviewed activities.

(a) Federal and State agencies shall

cooperate in their efforts to monitor

federal assistance activities in order to

make certain that such activities

continue to conform to both federal and

State requirements.

(b) The State agency shall notify the

relevant Federal agency representative

for the area involved of any federal

assistance activity which the State

agency claims was:

(1) Previously determined to be

consistent with the management

program, but which the State agency

later maintains is being conducted or is

having an effect on any coastal use or

resource substantially different than

originally described and, as a result, is

no longer consistent with the

management program, or

(2) Previously determined not to be a

project affecting any coastal use or

resource, but which the State agency

later maintains is being conducted or is

having an effect on any coastal use or

resource substantially different than

originally described and, as a result the

project affects a coastal use or resource

in a manner inconsistent with the

management program.

(c) The State agency notification shall

include:

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77171

(1) A description of the activity

involved and the alleged lack of

compliance with the management

program;

(2) supporting information; and

(3) a request for appropriate remedial

action. A copy of the request shall be

sent to the applicant agency and the

Director.

(d) If, after 30 days following a request

for remedial action, the State agency

still maintains that the applicant agency

is failing to comply substantially with

the management program, the State

agency may file a written objection with

the Director. If the Director finds that

the applicant agency is conducting an

activity that is substantially different

from the approved activity, the State

agency may reinitiate its review of the

activity, or the applicant agency may

conduct the activity as it was originally

approved.

(e) An applicant agency shall be

found to be conducting an activity

substantially different from the

approved activity if the State agency

claims and the Director finds that the

activity affects any coastal use or

resource substantially different than

originally determined by the State

agency and, as a result, the activity is no

longer being conducted in a manner

consistent with the management

program. The Director may make a

finding that an applicant agency is

conducting an activity substantially

different from the approved activity

only after providing a reasonable

opportunity for the applicant agency

and the Federal agency to review the

State agency’s objection and to submit

comments for the Director’s

consideration.

§ 930.101 Supplemental coordination for

proposed activities.

(a) For federal assistance activities

that were previously determined by the

State agency to be consistent with the

management program, but which have

not yet begun, the applicant agency

shall further coordinate with the State

agency if the proposed activity will

affect any coastal use or resource

substantially different than originally

described. Substantially different

coastal effects are reasonably foreseeable

if:

(1) The applicant agency makes

substantial changes in the proposed

activity that are relevant to management

program enforceable policies; or (2)

There are significant new circumstances

or information relevant to the proposed

activity and the proposed activity’s

effect on any coastal use or resource.

(b) The State agency may notify the

applicant agency, the Federal agency

and the Director of proposed activities

which the State agency believes should

be subject to supplemental

coordination. The State agency’s

notification shall include information

supporting a finding of substantially

different coastal effects than originally

described and the relevant enforceable

policies, and may recommend

modifications to the proposed activity

(if any) that would allow the applicant

agency to implement the proposed

activity consistent with the management

program. State agency notification

under paragraph (b) of this section does

not remove the requirement under

paragraph (a) of this section for

applicant agencies to notify State

agencies.

Subpart G—Secretarial Mediation

§ 930.110 Objectives.

The purpose of this subpart is to

describe mediation procedures which

Federal and State agencies may use to

attempt to resolve serious disagreements

which arise during the administration of

approved management programs.

§ 930.111 OCRM mediation.

The availability of mediation does not

preclude use by the parties of

alternative means for resolving their

disagreement. In the event a serious

disagreement arises, the parties are

strongly encouraged to make every effort

to resolve the disagreement informally.

OCRM shall be available to assist the

parties in these efforts.

§ 930.112 Request for Secretarial

mediation.

(a) The Secretary or other head of a

Federal agency, or the Governor or the

State agency, may notify the Secretary

in writing of the existence of a serious

disagreement, and may request that the

Secretary seek to mediate the

disagreement. A copy of the written

request must be sent to the agency with

which the requesting agency disagrees,

to the Assistant Administrator, and to

the Director.

(b) Within 15 days following receipt

of a request for mediation the

disagreeing agency shall transmit a

written response to the Secretary, and to

the agency requesting mediation,

indicating whether it wishes to

participate in the mediation process. If

the disagreeing agency declines the offer

to enter into mediation efforts, it must

indicate the basis for its refusal in its

response. Upon receipt of a refusal to

participate in mediation efforts, the

Secretary shall seek to persuade the

disagreeing agency to reconsider its

decision and enter into mediation

efforts. If the disagreeing agencies do

not all agree to participate, the Secretary

will cease efforts to provide mediation

assistance.

§ 930.113 Public hearings.

(a) If the parties agree to the

mediation process, the Secretary shall

appoint a hearing officer who shall

schedule a hearing in the local area

concerned. The hearing officer shall

give the parties at least 30 days notice

of the time and place set for the hearing

and shall provide timely public notice

of the hearing.

(b) At the time public notice is

provided, the Federal and State agencies

shall provide the public with

convenient access to public data and

information related to the serious

disagreement.

(c) Hearings shall be informal and

shall be conducted by the hearing

officer with the objective of securing in

a timely fashion information related to

the disagreement. The Federal and State

agencies, as well as other interested

parties, may offer information at the

hearing subject to the hearing officer’s

supervision as to the extent and manner

of presentation. A party may also

provide the hearing officer with written

comments. Hearings will be recorded

and the hearing officer shall provide

transcripts and copies of written

information offered at the hearing to the

Federal and State agency parties. The

public may inspect and copy the

transcripts and written information

provided to these agencies.

§ 930.114 Secretarial mediation efforts.

(a) Following the close of the hearing,

the hearing officer shall transmit the

hearing record to the Secretary. Upon

receipt of the hearing record, the

Secretary shall schedule a mediation

conference to be attended by

representatives from the Office of the

Secretary, the disagreeing Federal and

State agencies, and any other interested

parties whose participation is deemed

necessary by the Secretary. The

Secretary shall provide the parties at

least 10 days notice of the time and

place set for the mediation conference.

(b) Secretarial mediation efforts shall

last only so long as the Federal and

State agencies agree to participate. The

Secretary shall confer with the

Executive Office of the President, as

necessary, during the mediation

process.

§ 930.115 Termination of mediation.

Mediation shall terminate:

(a) At any time the Federal and State

agencies agree to a resolution of the

serious disagreement,

(b) If one of the agencies withdraws

from mediation,

77172 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

(c) In the event the agencies fail to

reach a resolution of the disagreement

within 15 days following Secretarial

conference efforts, and the agencies do

not agree to extend mediation beyond

that period, or

(d) For other good cause.

§ 930.116 Judicial review.

The availability of the mediation

services provided in this subpart is not

intended expressly or implicitly to limit

the parties’ use of alternate forums to

resolve disputes. Specifically, judicial

review where otherwise available by

law may be sought by any party to a

serious disagreement without first

having exhausted the mediation process

provided for in this subpart.

Subpart H—Appeal to the Secretary for

Review Related to the Objectives of the

Act and National Security Interests

§ 930.120 Objectives.

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.

§ 930.121 Consistent with the objectives or

purposes of the Act.

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. When

determining whether a reasonable

alternative is available, the Secretary

may consider but is not limited to

considering, previous appeal decisions,

alternatives described in objection

letters and alternatives and other new

information described during the

appeal.

§ 930.122 Necessary in the interest of

national security.

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.

§ 930.123 Appellant and Federal agency.

(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.

§ 930.124 Computation of time.

(a) 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.

§ 930.125 Notice of appeal and application

fee to the Secretary.

(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 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.

(c) The appellant shall send the

Notice of appeal to the Secretary,

Herbert C. Hoover Building, 14th Street

and Constitution Avenue, N.W.,

Washington, D.C. 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.

(d) No extension of time will be

permitted for the filing of a notice of

appeal.

(e) 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

20 days of receipt of the Secretary’s

denial. If the fees are not received by the

20th day, then the Secretary shall

dismiss the appeal.

§ 930.126 Consistency appeal processing

fees.

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.

§ 930.127 Briefs and supporting materials.

(a) The Secretary shall establish a

schedule of dates and time periods for

submission of briefs and supporting

materials by the appellant and the State

agency.

(b) Both the appellant and State

agency shall send copies of their briefs,

supporting materials and all requests

and communications to the Secretary,

each other, and to the Assistant General

Counsel for Ocean Services (GCOS),

NOAA, 1305 East West Highway, Room

6111 SSMC4, Silver Spring, Maryland

20910.

(c) The Secretary may extend the time

for submission of briefs and supporting

materials on his own initiative or at the

request of a party so long as the request

is received prior to the date prescribed

in the briefing schedule. A copy of the

request for an extension of time shall be

sent to the Assistant General Counsel for

Ocean Services.

(d) Where a State agency objection is

based in whole or in part on a lack of

information, the Secretary shall limit

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77173

the record on appeal to information

previously submitted to the State agency

and relevant comments thereon, except

as provided for in sections 930.129(b)

and (c).

§ 930.128 Public notice, comment period,

and public hearing.

(a) The Secretary shall provide timely

public notice of the appeal after the

receipt of the notice of appeal, and

payment of application fees. At a

minimum, public notice shall be

provided in the Federal Register and

the immediate area of the coastal zone

likely to be affected by the proposed

activity.

(b) The Secretary shall provide an

opportunity for public comment on the

appeal. The public shall be afforded no

less than 30 days to comment on the

appeal. Notice of the public comment

period shall take the same form as

Notice required in paragraph (a) of this

section.

(c) The Secretary shall afford

interested Federal agencies, including

the Federal agency whose proposed

action is the subject of the appeal, with

an opportunity to comment on the

appeal. The Secretary shall afford notice

to the Federal agencies of the time for

filing their comments.

(d) The Secretary may extend the time

for submitting comments on his own

initiative or at the written request of a

party or interested Federal agency, so

long as the request is received prior to

the comment date identified in the

public notice. A copy of the request for

an extension of time shall be sent to the

Assistant General Counsel for Ocean

Services.

(e) The Secretary may hold a public

hearing in response to a request or on

his own initiative. If a hearing is held

by the Secretary, it shall be guided by

the procedures described within

§ 930.113.

§ 930.129 Dismissal, remand, stay, and

procedural override.

(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 on her own

initiative or upon request of an

appellant or State agency for the

following purposes:

(1) to allow additional information to

be developed relevant to the analysis

required of the Secretary in 930.121,

(2) to allow mediation or settlement

negotiations to occur between the

applicant and State agency, or

(3) to allow for remand pursuant to

paragraph (d) of this section.

(d) The Secretary may stay the

processing of an appeal and remand it

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, that was not

provided to the State agency as part of

its consistency review, is submitted to

the Secretary by the appellant, the

public or a Federal agency. The

Secretary shall determine a time period

for the remand to the State not to exceed

three months. If the State agency

responds that it still objects to the

activity, then the Secretary shall

continue to process the appeal and shall

include the significant new information

in the decision record. If the State

agency concurs, then the Secretary shall

dismiss the appeal and notify the

Federal agency that the activity may be

federally approved.

§ 930.130 Closure of the decision record

and issuance of decision.

(a) No sooner than 30 days after the

close of the public comment period, the

Secretary shall publish a notice in the

Federal Register stating that the decision

record is closed and that no further

information, briefs or comments will be

considered in deciding the appeal.

(b) No later than 90 days after the

closure of the decision record the

Secretary shall issue a decision or

publish a notice in the Federal Register

explaining why a decision cannot be

issued at that time. The Secretary shall

issue a decision within 45 days of the

publication of such notice.

(c) The decision of the Secretary shall

constitute final agency action for the

purposes of the Administrative

Procedure Act.

(d) The appellant bears the burden of

submitting evidence in support of its

appeal and the burden of persuasion. 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 submitted 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.

§ 930.131 Review initiated by the

Secretary.

(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.

Subpart I—Consistency of Federal

Activities Having Interstate Coastal

Effects

§ 930.150 Objectives.

(a) A federal activity may affect

coastal uses or resources of a State other

than the State in which the activity will

occur. Effective coastal management is

fostered by ensuring that activities

having such reasonably foreseeable

interstate coastal effects are conducted

consistent with the enforceable policies

of the management program of each

affected State.

(b) The application of the federal

consistency requirement to activities

77174 Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations

having interstate coastal effects is

addressed by this subpart in order to

encourage cooperation among States in

dealing with activities having interstate

coastal effects, and to provide States,

local governments, Federal agencies,

and the public with a predictable

framework for evaluating the

consistency of these federal activities

under the Act.

§ 930.151 Interstate coastal effect.

The term ‘‘interstate coastal effect’’

means any reasonably foreseeable effect

resulting from a federal action occurring

in one State of the United States on any

coastal use or resource of another State

that has a federally approved

management program. Effects are not

just environmental effects, but include

effects on coastal uses. Effects include

both direct effects which result from the

activity and occur at the same time and

place as the activity, and indirect

(cumulative and secondary) effects

which result from the activity and are

later in time or farther removed in

distance, but are still reasonably

foreseeable. Indirect effects are effects

resulting from the incremental impact of

the federal action when added to other

past, present, and reasonably

foreseeable actions, regardless of what

person(s) undertake(s) such actions. The

term ‘‘affects’’ means have an effect on.

Effects on any coastal use or resource

may also be referred to as ‘‘coastal

effects.’’

§ 930.152 Application.

(a) This subpart applies to federal

actions having interstate coastal effects,

and supplements the relevant

requirements contained in 15 CFR part

930, subparts C (Consistency for Federal

Agency Activities), D (Consistency for

Activities Requiring a Federal License

or Permit), E (Consistency for OCS

Exploration, Development and

Production Activities) and F

(Consistency for Federal Assistance to

State and Local Governments). Except as

otherwise provided by this subpart, the

requirements of other relevant subparts

of part 930 apply to activities having

interstate coastal effects.

(b) Federal consistency is a

requirement on federal actions affecting

any coastal use or resource of a State

with a federally-approved management

program, regardless of the activities’

locations (including States without a

federally approved management

program). The federal consistency

requirement does not alter a coastal

State’s jurisdiction. The federal

consistency requirement does not give

States the authority to review the

application of laws, regulations, or

policies of any other State. Rather, the

Act allows a management program to

review federal actions and may preclude

federal action as a result of a State

objection, even if the objecting State is

not the State in which the activity will

occur. Such objections to interstate

activities under subparts D, E and F may

be overridden by the Secretary pursuant

to subpart H of this part.

§ 930.153 Coordination between States in

developing coastal management policies.

Coastal States are encouraged to give

high priority to:

(a) Coordinating State coastal

management planning, policies, and

programs with respect to contiguous

areas of such States;

(b) Studying, planning, and

implementing unified coastal

management policies with respect to

such areas; and

(c) Establishing an effective

mechanism, and adopting a federalState consultation procedure, for the

identification, examination, and

cooperative resolution of mutual

problems with respect to activities

having interstate coastal effects.

§ 930.154 Listing activities subject to

routine interstate consistency review.

(a) Geographic location of listed

activities. Each coastal State intending

to conduct a consistency review of

federal activities occurring in another

State shall:

(1) List those Federal agency

activities, federal license or permit

activities, and federal assistance

activities that the State intends to

routinely review for consistency; and

(2) Generally describe the geographic

location for each type of listed activity.

(b) In establishing the geographic

location of interstate consistency

review, each State must notify and

consult with the State in which the

listed activity will occur, as well as with

relevant Federal agencies.

(c) Demonstrate effects. In describing

the geographic location for interstate

consistency reviews, the State agency

shall provide information to the Director

that coastal effects from listed activities

occurring within the geographic area are

reasonably foreseeable. Listed activities

may have different geographic location

descriptions, depending on the nature of

the activity and its effects on any coastal

use or resource. For example, the

geographic location for activities

affecting water resources or uses could

be described by shared water bodies,

river basins, boundaries under the

State’s coastal nonpoint pollution

control program, or other ecologically

identifiable areas.

(d) Director approval. State agencies

shall submit their lists and geographic

location descriptions developed under

this section to the Director for approval

as a routine program change under

subpart H of 15 CFR part 923. Each State

submitting this program change shall

include evidence of consultation with

States in which the activity will occur,

evidence of consultation with relevant

Federal agencies, and any agreements

with other States and Federal agencies

regarding coordination of activities.

(e) State failure to list interstate

activities. A coastal State that fails to list

federal activities subject to interstate

review, or to describe the geographic

location for these activities, under

paragraphs (a) through (d) of this

section, may not exercise its right to

review activities occurring in other

States, until the State meets the listing

requirements. The listing of activities

subject to interstate consistency review,

and the description of the geographic

location for those listed activities,

should ensure that coastal States have

the opportunity to review relevant

activities occurring in other States.

States may amend their lists and

geographic location descriptions

pursuant to the requirements of this

subpart and subpart H of 15 CFR part

923. States which have complied with

paragraphs (a) through (d) of this section

may also use the procedure at § 930.54

to review unlisted activities. States will

have a transition period of 18 months

from the date this rule takes effect. In

that time a State may review an

interstate activity pursuant to § 930.54

of this part. After the transition period

States must comply with this subpart in

order to review interstate activities.

§ 930.155 Federal and State agency

coordination.

(a) Identifying activities subject to the

consistency requirement. The

provisions of this subpart are neither a

substitute for nor eliminate the statutory

requirement of federal consistency with

the enforceable policies of management

programs for all activities affecting any

coastal use or resource. Federal agencies

shall submit consistency determinations

to relevant State agencies for activities

having coastal effects, regardless of

location, and regardless of whether the

activity is listed.

(b) Notifying affected States. Federal

agencies, applicants or applicant

agencies proposing activities listed for

interstate consistency review, or

determined by the Federal agency,

applicant or applicant agency to have an

effect on any coastal use or resource,

shall notify each affected coastal State of

the proposed activity. State agencies

Federal Register / Vol. 65, No. 237 / Friday, December 8, 2000 / Rules and Regulations 77175

may also notify Federal agencies and

applicants of listed and unlisted

activities subject to State agency review

and the requirements of this subpart.

(c) Notice of intent to review. Within

30 days from receipt of the consistency

determination or certification and

necessary data and information, or

within 30 days from receipt of notice of

a listed federal assistance activity, each

State intending to review an activity

occurring in another State must notify

the applicant or applicant agency (if

any), the Federal agency, the State in

which the activity will occur (either the

State’s management program, or if the

State does not have a management

program, the Governor’s office), and the

Director, of its intent to review the

activity for consistency. The State’s

notice to the parties must be received by

the 30th day after receipt of the

consistency determination or

certification. If a State fails, within the

30 days, to notify the applicant or

applicant agency (if any), the Federal

agency, the State in which the activity

will occur, and the Director, of its intent

to review the activity, then the State

waives its right to review the activity for

consistency. The waiver does not apply

where the State intending to review the

activity does not receive notice of the

activity.

§ 930.156 Content of a consistency

determination or certification and State

agency response.

(a) The Federal agency or applicant is

encouraged to prepare one

determination or certification that will

satisfy the requirements of all affected

States with approved management

programs.

(b) State agency responses shall

follow the applicable requirements

contained in subparts C, D, E and F of

this part.

§ 930.157 Mediation and informal

negotiations.

The relevant provisions contained in

subpart G of this part are available for

resolution of disputes between affected

States, relevant Federal agencies, and

applicants or applicant agencies The

parties to the dispute are also

encouraged to use alternative means for

resolving their disagreement. OCRM

shall be available to assist the parties in

these efforts.

[FR Doc. 00–31116 Filed 12–7–00; 8:45 am]

BILLING CODE 3510–08–U