[Federal Register Volume 65, Number 237 (Friday, December 8, 2000)]
[Rules and Regulations]
[Pages 77124-77175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31116]



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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



15 CFR Part 930



Coastal Zone Management Act Federal Consistency Regulations; Final Rule

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

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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.

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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 Sec. 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 Sec. 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 Sec. 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 Sec. (c)(3) 
or a State agency's or local government's certification under CZMA 
Sec. 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 Sec. 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 Sec. 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 non-federal 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 Sec. 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

[[Page 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 
Sec. 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 Secs. 307(c)(3)(A) 
and (B), and 307(d) for the purpose of conforming these existing 
sections with changes made to Sec. 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 Sec. 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 section-specific 
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

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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 section-by-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 Sec. 304(6a), Conference Report at 
972. The CZMA was changed, in part, to expressly require consistency 
with enforceable policies. CZMA Secs. 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 
Sec. 306(d)(14). Environmental groups commented that public 
participation should be required for ``negative determinations.'' NOAA 
disagrees. CZMA Sec. 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 Sec. 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 
Sec. 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 federally-approved management program. NOAA monitors 
such implementation through the CZMA Sec. 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 federally-approved 
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 Sec. 306(d) 
requires States to implement federally-approved management programs, 
particularly Secs. 306(d)(1) (management program adopted pursuant to 
NOAA regulations), Sec. 306(d)(2)(D) (identification of the means by 
which the State will exert control over coastal uses), and 
Sec. 306(d)(2)(F) (the organizational structure used to implement the 
management program).
    Moreover CZMA Sec. 312(a) requires the Secretary to evaluate State 
programs to ensure that a State has adequately

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``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 Sec. 312(c)(1), and 
require the State to take necessary actions to remedy the non-
compliance, CZMA Sec. 312(c)(2)(A). If the State does not remedy the 
non-compliance, then the Secretary may withdraw program approval. CZMA 
Sec. 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 Sec. 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 Sec. 307, which will affect the State's coastal 
uses or resources.
    CZMA Sec. 307 also specifies that State's must implement its 
program through federal consistency. For instance, Sec. 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 Sec. 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 Secs. 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 
Sec. 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 
Sec. 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 Sec. 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

[[Page 77128]]

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 Sec. 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 non-definitional 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 Secs. 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 Secs. 306(d)(6) and 307(c)(1)(C). Further,

[[Page 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 re-designated 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 Secs. 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 Sec. 304 (coastal uses of national 
significance are defined in CZMA Sec. 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 Sec. 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/

[[Page 77130]]

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 Sec. 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 Sec. 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 Sec. 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

[[Page 77131]]

Sec. Sec. 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 
Sec. 306(d)(2)(D), the State must include a list of enforceable 
policies in its coastal management program. Under CZMA Sec. 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)

[[Page 77132]]

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 pre-lease 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 Sec. 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

[[Page 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 Sec. 307(c)(1) is a 
residual category. Federal actions that do not fall into subparts D, E, 
or F are Federal agency activities. CZMA Sec. 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 
Sec. 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 Sec. 307(c)(1)(A) does provide 
that a Federal agency is subject to Sec. 307(c)(1) unless it is subject 
to paragraph (2) or (3)(license or permit activities). However, this 
does not resolve the matter since Sec. 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 Sec. 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 non-Federal 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 pre-existing 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),

[[Page 77134]]

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 well-established 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 
Sec. 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

[[Page 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 Sec. 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. Sec. 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 (so-called 
``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

[[Page 77136]]

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 
Sec. 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 
Sec. 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 Sec. 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

[[Page 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 
Sec. 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 Sec. 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 Sec. 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

[[Page 77138]]

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

[[Page 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 non-enforceable 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,

[[Page 77140]]

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 
Secs. 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 
Sec. 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 Sec. 307(c)(1)(C). Currently, NOAA regulations 
require States to respond within 45 days of receiving the 
determination. Section Sec. 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 Sec. 306(d)(14). OCRM's Final Guidance implementing CZMA 
Sec. 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 Sec. 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 cross-reference 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 
Sec. 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

[[Page 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 Sec. 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 Sec. 306(d)(14). NOAA 
reviews each State's procedures during regularly scheduled evaluations 
of management programs under CZMA Sec. 312 for compliance with the 
public participation requirement under Sec. 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

[[Page 77142]]

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 Secs. 307(e) and (f). CZMA Sec. 307(e) requires that 
the CZMA does not supersede, modify or repeal existing law. CZMA 
Sec. 307(f) requires that the CZMA shall not affect the pollution 
control requirements of the Clean Water Act or Clean Air Act. The CZMA 
Sec. 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

[[Page 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 Secs. 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 
Sec. 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 Sec. 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 never-ending 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.

[[Page 77144]]

    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-of-
way'' 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 ``re-lease'' the tracts, 
then the re-leasing would be subject to consistency under CZMA 
Sec. 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 Sec. 307(c)(3)(B)) which subjects subpart E reviews to 
CZMA Sec. 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.

[[Page 77145]]

    Section 930.51(d) clarifies that a ``renewal'' includes subsequent 
re-approvals, 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 
Sec. 307(c)(3) requirements. The CZMA is clear: Federal agency 
activities are subject to CZMA Sec. 307(c)(1). CZMA Sec. 307(c)(3) 
applies to non-federal applicants for federal permits or licenses. 
Congress declared that CZMA Secs. 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. Thirty-three 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

[[Page 77146]]

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 long-standing 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

[[Page 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 Sec. 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 cross-reference 
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 Sec. 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 
Sec. 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

[[Page 77148]]

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 
Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 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 Sec. 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 Sec. 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 
Sec. 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 Sec. 302(a). 
The

[[Page 77150]]

language and structure of Secs. 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 Sec. 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 Secs. 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 
Secs. 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 
Secs. 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 Secs. 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 Secs. 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

[[Page 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 Sec. 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 Sec. 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

[[Page 77152]]

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 Sec. 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 
Sec. 312, appeals under CZMA Sec. 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 Sec. 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 long-standing 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 Sec. 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 
Sec. 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

[[Page 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 Sec. 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 Sec. 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-of-information 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

[[Page 77154]]

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


Sec. 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;

[[Page 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.


Sec. 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.


Sec. 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.


Sec. 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 Sec. 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.


Sec. 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.


Sec. 930.6  State agency responsibility.

    (a) This section describes the responsibilities of the ``State 
agency'' described in Sec. 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 Sec. 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

[[Page 77156]]

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


Sec. 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             930.32
 practicable.
Consistent with the objectives or purposes   930.121
 of the Act.
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  930.86(d)
 plan.
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           930.71
 described in detail.
Interstate coastal effect..................  930.151
Major amendment............................  930.51(c)
Management program.........................  930.11(k)
Necessary in the interest of national        930.122
 security.
OCS plan...................................  930.73
OCRM.......................................  930.11(l)
Person.....................................  930.72
Secretary..................................  930.11(m)
Section....................................  930.11(n)
State agency...............................  930.11(o)
------------------------------------------------------------------------

Sec. 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 Sec. 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

[[Page 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


Sec. 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.


Sec. 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.


Sec. 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

[[Page 77158]]

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 
non-classified comments regarding the activity's reasonably foreseeable 
coastal effects.


Sec. 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 Sec. 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-by-case 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 Sec. 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 
Sec. 930.34 and not a negative determination under Sec. 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.


Sec. 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

[[Page 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.


Sec. 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 
Sec. 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 Sec. 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 Sec. 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 Sec. 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.


Sec. 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

[[Page 77160]]

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 
Sec. 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 Sec. 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.


Sec. 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.


Sec. 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 Sec. 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).


Sec. 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

[[Page 77161]]

Sec. 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 
Sec. 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.


Sec. 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 Sec. 930.39.


Sec. 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 Sec. 930.39(a). If the information required by 
Sec. 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 Sec. 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 
Sec. 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 Sec. 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 Sec. 930.46, or a phased review under 
Sec. 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.


Sec. 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.

[[Page 77162]]

    (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.


Sec. 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 
Sec. 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 Secs. 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.


Sec. 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.


Sec. 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.


Sec. 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

[[Page 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


Sec. 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.


Sec. 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 Sec. 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.


Sec. 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 Sec. 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.


Sec. 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

[[Page 77164]]

geographic location of review, States must follow the conditions for 
review of unlisted activities under Sec. 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 
Sec. 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.


Sec. 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 Secs. 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

[[Page 77165]]

agency must adhere to the unlisted activity review requirements of this 
section to preserve its right to review the activity.


Sec. 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 Sec. 930.53) or individually approved by the Director 
(see Sec. 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.


Sec. 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.


Sec. 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.''


Sec. 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.


Sec. 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.


Sec. 930.60  Commencement of State agency review.

    (a) Except as provided in Sec. 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 Sec. 930.58.
    (1) If an applicant fails to submit a consistency certification in 
accordance with Sec. 930.57, or fails to submit necessary data and 
information required pursuant to Sec. 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

[[Page 77166]]

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 six-month 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 Sec. 930.58 shall not extend the date of commencement 
of State agency review.


Sec. 930.61  Public participation.

    (a) Following receipt of the material described in Sec. 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.


Sec. 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 Sec. 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 
Sec. 930.4).


Sec. 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 Sec. 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 Sec. 930.121(d) 
for further details regarding alternatives for appeals under subpart H 
of this part.

[[Page 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.


Sec. 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.


Sec. 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.


Sec. 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


Sec. 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.


Sec. 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 
Sec. 930.51, which the Secretary of the Interior determines must be 
described in detail within an OCS plan.


Sec. 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.


Sec. 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

[[Page 77168]]

or designee prior to management program approval.


Sec. 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 
Sec. 930.53 shall include a reference to OCS plans which describe in 
detail federal license or permit activities affecting any coastal use 
or resource.


Sec. 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.


Sec. 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 Sec. 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).


Sec. 930.77  Commencement of State agency review and public notice.

    (a)(1) Except as provided in Sec. 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 Sec. 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 Sec. 930.61.


Sec. 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 Sec. 930.63.


Sec. 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.


Sec. 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.


Sec. 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

[[Page 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.


Sec. 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.


Sec. 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 Secs. 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.


Sec. 930.84  Continuing State agency objections.

    If the State agency objects to the consistency certification for an 
amended OCS plan, the prohibition in Sec. 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 Secs. 930.82 through 930.83.


Sec. 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


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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

[[Page 77170]]

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 
Sec. 930.95(a)) or within a described geographic area outside of the 
coastal zone (see Sec. 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.


Sec. 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 Sec. 930.98.)


Sec. 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 Sec. 930.63.


Sec. 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.


Sec. 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 Sec. 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.


Sec. 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.


Sec. 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:

[[Page 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.


Sec. 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


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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,

[[Page 77172]]

    (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.


Sec. 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


Sec. 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.


Sec. 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 
Sec. 302 or Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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 Sec. 930.130 of 
this subpart.


Sec. 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

[[Page 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).


Sec. 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 
Sec. 930.113.


Sec. 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.


Sec. 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.


Sec. 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


Sec. 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

[[Page 77174]]

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.


Sec. 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.''


Sec. 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.


Sec. 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 federal-
State consultation procedure, for the identification, examination, and 
cooperative resolution of mutual problems with respect to activities 
having interstate coastal effects.


Sec. 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 Sec. 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 Sec. 930.54 of this part. 
After the transition period States must comply with this subpart in 
order to review interstate activities.


Sec. 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

[[Page 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.


Sec. 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.


Sec. 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