[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Pages 9746-9762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5237]




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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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15 CFR Part 923, et al.



Coastal Zone Management Program Regulations; Proposed Rule

  Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / 
Proposed Rules  

[[Page 9746]]


DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Parts 923, 926, 927, 928, 932, 933

[Docket No. 960126015-6015-01]
RIN 0648-AI43


Coastal Zone Management Program 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: Proposed rule.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is 
proposing to revise and consolidate its regulations concerning coastal 
zone management (CZM) program development, approval, grants and 
evaluation, and remove obsolete rules concerning research and technical 
assistance. These regulations implement, in part, the Coastal Zone 
Management Act, as amended (CZMA). The purpose of this proposed rule is 
to remove outdated provisions and to revise and consolidate remaining 
provisions. The intended effect of this proposed rule is to make the 
CZM program regulations more concise and easier to use.

DATES: Comments on the proposed rule are invited and will be considered 
if submitted on or before April 25, 1996.

ADDRESSES: All comments concerning these proposed regulations should be 
mailed to: Clement Lewsey, Coastal Programs Division, Office of Ocean 
and Coastal Resource Management, NOAA, N/ORM3, 1305 East-West Highway, 
SSMC 4, 11th Floor, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT:
Roger Eckert, NOAA Office of General Counsel for Ocean Services, at 
301-713-2967 (ext. 213), fax: 301-713-4408, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Authority

    This proposed rule is issued under the authority of the CZMA, 16 
U.S.C. 1451 et seq.

II. Background

    The CZMA was enacted to encourage and assist the 35 eligible 
coastal states and territories to develop and implement CZM programs to 
preserve, protect, develop and, where possible, restore or enhance the 
resources of the Nation's coasts. In all, 29 coastal states and 
territories have chosen to participate in this program, and their 
programs have received federal approval. Five states are currently 
developing programs for federal approval. Many of the regulations 
promulgated when the program began are no longer needed, now that the 
program has matured.
    In March 1995, President Clinton issued a directive to federal 
agencies regarding their responsibilities under his Regulatory Reform 
Initiative. This initiative is part of the National Performance Review 
and calls for immediate, comprehensive regulatory reform. The President 
directed all agencies to review all of their regulations, with an 
emphasis on eliminating or modifying those that are obsolete or 
otherwise in need of reform. This proposed rule is intended to carry 
out the President's directive with respect to the regulations 
implementing the Coastal Zone Management program and revises those 
regulations as follows:

A. Consolidates Regulations

    The proposed rule would consolidate CZM program regulations found 
in present 15 CFR parts 923, 927, 928 and 932 into a revised part 923. 
This consolidation is expected to make the regulations easier for 
coastal states, territories and the public to use.

B. Removes Regulations Restating Statutory Language

    The proposed rule would remove those regulations in 15 CFR part 923 
that simply restate provisions contained in the Coastal Zone Management 
Act. These provisions would be replaced, where appropriate, with 
references to the applicable sections of the CZMA. Removal of these 
provisions is in accordance with the rules of the Office of the Federal 
Register which discourage agencies from restating the language of a law 
in a document intended for publication in the Federal Register.

C. Removes Outdated Provisions and Simplifies Remaining Provisions

    The proposed rule would remove those regulations in 15 CFR part 923 
that are no longer necessary because the CZM program has reached its 
maturity, and simplify the remaining provisions. Many of the more 
detailed regulatory requirements would be removed. Since part 923 
largely addresses requirements for the development and approval of 
coastal management programs, many of these changes would not apply to 
those states that already have federally approved CZM programs. For the 
eligible coastal states that do not yet have approved programs, OCRM 
will continue to provide necessary guidance, and actual and timely 
notice of appropriate application procedures. In particular, OCRM will 
continue to work with the 5 coastal states currently developing 
programs in order to ensure that those programs meet the criteria for 
federal approval. Finally, the proposed rule would remove 15 CFR part 
933 because it implements a portion of the CZMA that was repealed in 
1986. OCRM will provide guidance on a corresponding technical 
assistance provision that was added to the CZMA in the Coastal Zone Act 
Reauthorization Amendments of 1990.

D. Updates Program Change Regulations

    The proposed rule would update the program change regulations so 
that they more precisely reflect the structure of coastal management 
programs. In particular, the four criteria identified at 15 CFR 
923.80(d)(1)-(4), by which program changes are assessed, would be 
replaced by a reference to the five program approvability areas 
identified in part 923: (1) uses subject to management, (2) special 
management areas, (3) boundaries, (4) authorities and organization, and 
(5) coordination, public involvement and national interest.
    While the four criteria were an effort to group the program 
approvability areas, not all program changes fit squarely within the 
four groups. The proposed rule repeats the headings of subparts B 
through F of part 923, and so, tracks the program approvability areas. 
In addition, states may refer to these subparts for assistance in their 
analysis of a program change. Furthermore, states would no longer be 
required to address those program areas that do not apply to their 
proposed changes. Rather, the proposal allows states to discuss one or 
more of the program areas that would be affected by a change. Thus, the 
proposal allows states greater flexibility to provide a more focused 
analysis. OCRM anticipates that most program change requests will 
continue to be routine program changes. OCRM plans to provide coastal 
states and territories with additional program change guidance.
    The proposed rule also would add explanatory statements concerning 
the addition of any enforceable policies to management programs. These 
statements reflect Congress' increased focus on enforceable policies in 
the Coastal Zone Act Reauthorization Amendments of 1990. OCRM, federal 
agencies, applicants for federal licenses or permits, and often the 
state coastal 

[[Page 9747]]
programs themselves, cannot always identify the enforceable policies in 
a program. OCRM recognizes that events beyond a coastal management 
program's control can change the enforceability of a policy.
    However, OCRM needs to know just what is being changed at the time 
of a program change, and federal agencies and applicants should be 
allowed to comment on the enforceable policies submitted for 
incorporation.
    Finally, the term ``routine program implementation'' would be 
changed to the more descriptive term ``routine program change,'' and 
existing agency practice that allows for the resubmittal of routine 
program change requests would be codified.

III. Miscellaneous Rulemaking Requirements

Executive Order 12372: Intergovernmental Review

    This program is subject to Executive Order 12372.

Executive Order 12612: Federalism Assessment

    NOAA has concluded that this regulatory action does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment under Executive Order 12612.

Executive Order 12866: Regulatory Planning and Review

    This regulatory action is not significant for purposes of Executive 
Order 12866.

Regulatory Flexibility Act

    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce has certified to the Chief Counsel for Advocacy 
of the Small Business Administration that the proposed rule, if 
adopted, would not have a significant impact on a substantial number of 
small entities because (1) the rule addresses CZM programs of coastal 
states and territories, (2) those provisions that would be removed, 
because they are outdated or repeat statutory language, are unnecessary 
for the development and implementation of CZM programs, and (3) the 
revision and consolidation of remaining provisions would impose no 
additional burden on small entities. In particular, the update of the 
CZM program change regulations, if adopted, would help ensure the 
continued approvability of CZM programs. Accordingly, an initial 
Regulatory Flexibility Analysis was not prepared.

Paperwork Reduction Act

    The proposed rule contains collection-of-information requirements 
subject to review and approval by OMB under the Paperwork Reduction Act 
(PRA). The collection-of-information requirements contained in this 
proposed rule have been approved under OMB Control Number 0648-0119. 
The estimated response times for these requirements are 480 hours for 
management program approval and 8 hours for program amendments and 
routine program changes.
    The response estimates shown include the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining data needed, and completing and reviewing the collection of 
information. Send comments regarding these burden estimates or any 
other aspect of the collection of information to the Coastal Programs 
Division at the ADDRESSES above, and to OMB at the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
Washington, DC. 20503 (Attention: NOAA Desk Officer).
    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 currently valid OMB Control Number.

National Environmental Policy Act

    NOAA has concluded that this regulatory action does not constitute 
a major federal action significantly affecting the quality of the human 
environment. Therefore, an environmental impact statement is not 
required.

List of Subjects

15 CFR Parts 923, 928 and 932

    Administrative practice and procedure, Coastal zone, Grant 
programs--Natural resources, Reporting and recordkeeping requirements.

15 CFR Part 926

    [Reserved]

15 CFR Part 927

    Administrative practice and procedure, Coastal zone, Grant 
programs--Natural resources.

15 CFR Part 933

    Administrative practice and procedure, Coastal zone, Grant 
programs--Natural resources, Reporting and recordkeeping requirements, 
Research.

    Dated: March 1, 1996.
W. Scott Page,
Acting Assistant Administrator for Ocean Services and Coastal Zone 
Management.

    For the reasons set out in the Preamble, it is proposed to amend 15 
CFR Chapter IX as follows:
    1. The heading for Part 923 is revised to read as follows:

PART 923--COASTAL ZONE MANAGEMENT PROGRAM REGULATIONS

    2. The table of contents for Part 923 is revised to read as 
follows:

Subpart A--General

Sec.
923.1  Purpose and scope.
923.2  Definitions.
923.3  General requirements.

Subpart B--Uses Subject to Management

923.10  General.
923.11  Uses subject to management.
923.12  Uses of regional benefit.
923.13  Energy facility planning process.

Subpart C--Special Management Areas

923.20  General.
923.21  Areas of particular concern.
923.22  Areas for preservation or restoration.
923.23  Other areas of particular concern.
923.24  Shorefront access and protection planning.
923.25  Shoreline erosion/mitigation planning.

Subpart D--Boundaries

923.30  General.
923.31  Inland boundary.
923.32  Lakeward or seaward boundary.
923.33  Excluded lands.
923.34  Interstate boundary.

Subpart E--Authorities and Organization

923.40  General.
923.41  Identification of authorities.
923.42  State establishment of criteria and standards for local 
implementation--Technique A.
923.43  Direct State land and water use planning and regulation--
Technique B.
923.44  State review on a case-by-case basis of actions affecting 
land and water uses subject to the management program--Technique C.
923.45  Air and water pollution control requirements.
923.46  Organizational structure.
923.47  Designated State agency.
923.48  Documentation.
Subpart F--Coordination, Public Involvement and National Interest
923.50  General.
923.51  Federal-State consultation.
923.52  Consideration of the national interest in facilities.
923.53  Federal consistency procedures.
923.54  Mediation.
923.55  Full participation by State and local governments, 
interested parties, and the general public.

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923.56  Plan coordination.
923.57  Continuing consultation.
923.58  Public hearings.

Subpart G--Review/Approval Procedures

923.60  Review/approval procedures.
Subpart H--Amendments to and Termination of Approved Management 
Programs
923.80  General.
923.81  Requests for amendments.
923.82  Amendment review/approval procedures.
923.83  Mediation of amendments.
923.84  Routine program changes.
Subpart I--Applications for Program Development or Implementation 
Grants
923.90  General.
923.91  State responsibility.
923.92  Allocation.
923.93  Eligible implementation costs.
923.94  Application for program development or implementation 
grants.
923.95  Approval of applications.
923.96  Grant amendments.
Subpart J--Allocation of Section 306 Program Administration Grants
923.110  Allocation formula.
Subpart K--Coastal Zone Enhancement Grants Program
923.121  General.
923.122  Objectives.
923.123  Definitions.
923.124  Allocation of section 309 funds.
923.125  Criteria for section 309 project selection.
923.126  Pre-application procedures.
923.127  Formal application for financial assistance and application 
review and approval procedures.
923.128  Revisions to assessments and strategies.

Subpart L--Review of Performance

923.131  General.
923.132  Definitions.
923.133  Procedure for conducting continuing reviews of approved 
State CZM programs.
923.134  Public participation.
923.135  Enforcement.

    3. The authority for Part 923 is revised to read as follows:

    Authority: 16 U.S.C. 1452 et seq. Sections 923.92 and 923.94 are 
also issued under E.O. 12372, July 14, 1982, 3 CFR, 1982 Comp. p. 
197, as amended by E.O. 12416, April 8, 1983, 3 CFR, 1983 Comp. p. 
186; (31 U.S.C. 6506; 42 U.S.C. 3334).

    4. Subpart J consisting of Secs. 923.90 through 923.98 is removed, 
and Subparts A through I of Part 923 are revised to read as follows:

Subpart A--General


Sec. 923.1  Purpose and scope.

    (a) The regulations in this part set forth the requirements for 
State coastal management program approval by the Assistant 
Administrator for Ocean Services and Coastal Zone Management pursuant 
to the Coastal Zone Management Act of 1972, as amended (hereafter, the 
Act); the grant application procedures for program funds; conditions 
under which grants may be terminated; and requirements for review of 
approved management programs.
    (b) Sections 306 and 307 of the Act set forth requirements which 
must be fulfilled as a condition of program approval. The specifics of 
these requirements are set forth below under the following headings: 
General Requirements; Uses Subject to Management; Special Management 
Areas; Boundaries; Authorities and Organization; and Coordination, 
Public Involvement and National Interest. All relevant sections of the 
Act are dealt with under one of these groupings, but not necessarily in 
the order in which they appear in the Act.
    (c) In summary, the requirements for program approval are that a 
State develop a management program that:
    (1) Identifies and evaluates those coastal resources recognized in 
the Act as requiring management or protection by the State;
    (2) Reexamines existing policies or develops new policies to manage 
these resources. These policies must be specific, comprehensive, and 
enforceable;
    (3) Determines specific use and special geographic areas that are 
to be subject to the management program, based on the nature of 
identified coastal concerns;
    (4) Identifies the inland and seaward areas subject to the 
management program;
    (5) Provides for the consideration of the national interest in the 
planning for and siting of facilities that meet more than local 
requirements;
    (6) Includes sufficient legal authorities and organizational 
arrangements to implement the program and to ensure conformance to it. 
In arriving at these elements of the management program, States are 
obliged to follow an open process which involves providing information 
to and considering the interests of the general public, special 
interest groups, local governments, and regional, State, interstate, 
and Federal agencies;
    (7) Provides for public participation in permitting processes, 
consistency determinations, and other similar decisions;
    (8) Provides a mechanism to ensure that all state agencies will 
adhere to the program; and
    (9) Contains enforceable policies and mechanisms to implement the 
applicable requirements of the Coastal Nonpoint Pollution Control 
Program of the state required by section 6217 of the Coastal Zone Act 
Reauthorization Amendments of 1990.


Sec. 923.2  Definitions.

    (a) The term Act means the Coastal Zone Management Act of 1972, as 
amended.
    (b) The term Secretary means the Secretary of Commerce and his/her 
designee.
    (c) The term Assistant Administrator means the Assistant 
Administrator for Ocean Services and Coastal Zone Management, National 
Oceanic and Atmospheric Administration (NOAA), or designee.
    (d)(1) The term relevant Federal agencies means those Federal 
agencies with programs, activities, projects, regulatory, financing, or 
other assistance responsibilities in the following fields which could 
impact or affect a State's coastal zone:
    (i) Energy production or transmission,
    (ii) Recreation of a more than local nature,
    (iii) Transportation,
    (iv) Production of food and fiber,
    (v) Preservation of life and property,
    (vi) National defense,
    (vii) Historic, cultural, aesthetic, and conservation values,
    (viii) Mineral resources and extraction, and
    (ix) Pollution abatement and control.
    (2) The following are defined as relevant Federal agencies: 
Department of Agriculture; Department of Commerce; Department of 
Defense; Department of Education; Department of Energy; Department of 
Health and Human Services; Department of Housing and Urban Development; 
Department of the Interior; Department of Transportation; Environmental 
Protection Agency; Federal Energy Regulatory Commission; General 
Services Administration; Nuclear Regulatory Commission; Federal 
Emergency Management Agency.
    (e) The term Federal agencies principally affected means the same 
as ``relevant Federal agencies.'' The Assistant Administrator may 
include other agencies for purposes of reviewing the management program 
and environmental impact statement.
    (f) The term Coastal State means a State of the United States in, 
or bordering on, the Atlantic, Pacific, or Arctic Ocean, the Gulf of 
Mexico, Long Island Sound, or one or more of the Great Lakes. Pursuant 
to section 304(3) of the Act, the term also includes Puerto Rico, the 
Virgin Islands, Guam, and American Samoa. Pursuant to section 

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703 of the Covenant to Establish a Commonwealth of the Northern Mariana 
Islands in Political Union with the United States of America, the term 
also includes the Northern Marianas.
    (g) The term management program includes, but is not limited to, a 
comprehensive statement in words, maps, illustrations, or other media 
of communication, including an articulation of enforceable policies and 
citation of authorities providing this enforceability, prepared and 
adopted by the State in accordance with the provisions of this Act and 
this part, setting forth objectives, policies, and standards to guide 
public and private uses of lands and waters in the coastal zone.
    (h) The following terms, as used in these regulations, have the 
same definition as provided in section 304 of the Act:
    (1) Coastal zone;
    (2) Coastal waters;
    (3) Enforceable policy;
    (4) Estuary;
    (5) Land use; and
    (6) Water use.
    (i) The term grant means a financial assistance instrument and 
refers to both grants and cooperative agreements.


Sec. 923.3  General requirements.

    (a) The management program must be developed and adopted in 
accordance with the requirements of the Act and this part, after 
notice, and the opportunity for full participation by relevant federal 
and state agencies, local governments, regional organizations, port 
authorities, and other interested parties and persons, and be adequate 
to carry out the purposes of the Act and be consistent with the 
national policy set forth in section 303 of the Act.
    (b) The management program must provide for the management of those 
land and water uses having a direct and significant impact on coastal 
waters and those geographic areas which are likely to be affected by or 
vulnerable to sea level rise. The program must include provisions to 
assure the appropriate protection of those significant resources and 
areas, such as wetlands, beaches and dunes, and barrier islands, that 
make the state's coastal zone a unique, vulnerable, or valuable area.
    (c) The management program must contain a broad class of policies 
for each of the following areas: resource protection, management of 
coastal development, and simplification of governmental processes. 
These three broad classes must include specific policies that provide 
the framework for the exercise of various management techniques and 
authorities governing coastal resources, uses, and areas. The three 
classes must include policies that address uses of or impacts on 
wetlands and floodplains within the State's coastal zone, and that 
minimize the destruction, loss or degradation of wetlands and preserve 
and enhance their natural values in accordance with the purposes of 
Executive Order 11990, pertaining to wetlands. These policies also must 
reduce risks of flood loss, minimize the impact of floods on human 
safety, health and welfare, and preserve the natural, beneficial values 
served by floodplains, in accordance with the purpose of Executive 
Order 11988, pertaining to floodplains.
    (d) The policies in the program must be appropriate to the nature 
and degree of management needed for uses, areas, and resources 
identified as subject to the program.
    (e) The policies, standards, objectives, criteria, and procedures 
by which program decisions will be made must provide:
    (1) A clear understanding of the content of the program, especially 
in identifying who will be affected by the program and how, and
    (2) A clear sense of direction and predictability for 
decisionmakers who must take actions pursuant to or consistent with the 
management program.

Subpart B--Uses Subject to Management


Sec. 923.10  General.

    This subpart sets forth the requirements for management program 
approvability with respect to land and water uses which, because of 
their direct and significant impacts on coastal waters or those 
geographic areas likely to be affected by or vulnerable to sea level 
rise, are subject to the terms of the management program. This subpart 
deals in full with the following subsections of the Act: 306(d)(1)(B), 
Uses Subject to the Management Program, 306(d)(2)(H), Energy Facility 
Planning, and 306(d)(12)(B), Uses of Regional Benefit.


Sec. 923.11  Uses subject to management.

    (a) (1) The management program for each coastal state must include 
a definition of what shall constitute permissible land uses and water 
uses within the coastal zone which have a direct and significant impact 
on the coastal waters.
    (2) The management program must identify those land and water uses 
that will be subject to the terms of the management program. These uses 
shall be those with direct and significant impacts on coastal waters or 
on geographic areas likely to be affected by or vulnerable to sea level 
rise.
    (3) The management program must explain how those uses identified 
in paragraph (a)(2) of this section will be managed. The management 
program must also contain those enforceable policies, legal 
authorities, performance standards or other techniques or procedures 
that will govern whether and how uses will be allowed, conditioned, 
modified, encouraged or prohibited.
    (b) In identifying uses and their appropriate management, a State 
should analyze the quality, location, distribution and demand for the 
natural and man-made resources of their coastal zone, and should 
consider potential individual and cumulative impacts of uses on coastal 
waters.
    (c) States should utilize the following types of analyses:
    (1) Capability and suitability of resources to support existing or 
projected uses;
    (2) Environmental impacts on coastal resources;
    (3) Compatibility of various uses with adjacent uses or resources;
    (4) Evaluation of inland and other location alternatives; and
    (5) Water dependency of various uses and other social and economic 
considerations.
    (d) Examination of the following factors is suggested:
    (1) Air and water quality;
    (2) Historic, cultural and esthetic resources where coastal 
development is likely to affect these resources;
    (3) Open space or recreational uses of the shoreline where 
increased access to the shorefront is a particularly important concern;
    (4) Floral and faunal communities where loss of living marine 
resources or threats to endangered or threatened coastal species are 
particularly important concerns.
    (5) Information on the impacts of global warming and resultant sea 
level rise on natural resources such as beaches, dunes, estuaries, and 
wetlands, on salinization of drinking water supplies, and on 
properties, infrastructure and public works.


Sec. 923.12   Uses of regional benefit.

    The management program must contain a method of assuring that local 
land use and water use regulations within the coastal zone do not 
unreasonably restrict or exclude land uses and water uses of regional 
benefit. To this end, the management program must:
    (1) Identify what constitutes uses of regional benefit; and
    
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    (2) Identify and utilize any one or a combination of methods, 
consistent with the control techniques employed by the State, to assure 
local land and water use regulations do not unreasonably restrict or 
exclude uses of regional benefit.


Sec. 923.13   Energy facility planning process.

    (a) The management program must contain a planning process for 
energy facilities likely to be located in or which may significantly 
affect, the coastal zone, including a process for anticipating the 
management of the impacts resulting from such facilities. (See 
subsection 304(5) of the Act.) This process must contain the following 
elements:
    (1) Identification of energy facilities which are likely to locate 
in, or which may significantly affect, a State's coastal zone;
    (2) Procedures for assessing the suitability of sites for such 
facilities designed to evaluate, to the extent practicable, the costs 
and benefits of proposed and alternative sites in terms of State and 
national interests as well as local concerns;
    (3) Articulation and identification of enforceable State policies, 
authorities and techniques for managing energy facilities and their 
impacts; and
    (4) Identification of how interested and affected public and 
private parties will be involved in the planning process.

Subpart C--Special Management Areas


Sec. 923.20   General.

    (a) This subpart sets forth the requirements for management program 
approvability with respect to areas of particular concern because of 
their coastal-related values or characteristics, or because they may 
face pressures which require detailed attention beyond the general 
planning and regulatory system which is part of the management program. 
As a result, these areas require special management attention within 
the terms of the State's overall coastal program. This special 
management may include regulatory or permit requirements applicable 
only to the area of particular concern. It also may include increased 
intergovernmental coordination, technical, assistance, enhanced public 
expenditures, or additional public services and maintenance to a 
designated area. This subpart deals with the following subsections of 
the Act: 306(d)(2)(C)--Geographic Areas of Particular Concern; 
306(d)(2)(E)--Guidelines on Priorities of Uses; 306(d)(2)(G)--
Shorefront Access and Protection Planning; 306(d)(2)(I)--Shoreline 
Erosion/Mitigation Planning; and 306(d)(9)--Areas for Preservation and 
Restoration.
    (b) The importance of designating areas of particular concern for 
management purposes and the number and type of areas that should be 
designated is directly related to the degree of comprehensive controls 
applied throughout a State's coastal zone. Where a State's general 
coastal management policies and authorities address state and national 
concerns comprehensively and are specific with respect to particular 
resources and uses, relatively less emphasis need be placed on 
designation of areas of particular concern. Where these policies are 
limited and non-specific, greater emphasis should be placed on areas of 
particular concern to assure effective management and an adequate 
degree of program specificity.


Sec. 923.21   Areas of particular concern.

    (a) The management program must include an inventory and 
designation of areas of particular concern within the coastal zone, on 
a generic and/or site-specific basis, and broad guidelines on 
priorities of uses in particular areas, including specifically those 
uses of lowest priority.
    (b) In developing criteria for inventorying and designating areas 
of particular concern. States must consider whether the following 
represent areas of concern requiring special management:
    (1) Areas of unique, scarce, fragile or vulnerable natural habitat; 
unique or fragile, physical, figuration (as, for example, Niagara 
Falls); historical significance, cultural value or scenic importance 
(including resources on or determined to be eligible for the National 
Register of Historic Places.);
    (2) Areas of high natural productivity or essential habitat for 
living resources, including fish, wildlife, and endangered species and 
the various trophic levels in the food web critical to their well-
being;
    (3) Areas of substantial recreational value and/or opportunity;
    (4) Areas where developments and facilities are dependent upon the 
utilization of, or access to, coastal waters;
    (5) Areas of unique hydrologic, geologic or topographic 
significance for industrial or commercial development or for dredge 
spoil disposal;
    (6) Area or urban concentration where shoreline utilization and 
water uses are highly competitive;
    (7) Areas where, if development were permitted, it might be subject 
to significant hazard due to storms, slides, floods, erosion, 
settlement, salt water intrusion, and sea level rise;
    (8) Areas needed to protect, maintain or replenish coastal lands or 
resources including coastal flood plains, aquifers and their recharge 
areas, estuaries, sand dunes, coral and other reefs, beaches, offshore 
sand deposits and mangrove stands.
    (c) Where states will involve local governments, other state 
agencies, federal agencies and/or the public in the process of 
designating areas of particular concern, States must provide guidelines 
to those who will be involved in the designation process. These 
guidelines shall contain the purposes, criteria, and procedures for 
nominating areas of particular concern.
    (d) In identifying areas of concern by location (if site specific) 
or category of coastal resources (if generic), the program must contain 
sufficient detail to enable affected landowners, governmental entities 
and the public to determine with reasonable certainty whether a given 
area is designated.
    (e) In identifying areas of concern, the program must describe the 
nature of the concern and the basis on which designations were made.
    (f) The management program must describe how the management program 
addresses and resolves the concerns for which areas are designated; and
    (g) The management program must provide guidelines regarding 
priorities of uses in these areas, including guidelines on uses of 
lowest priority.


Sec. 923.22  Areas for preservation or restoration.

    The management program must include procedures whereby specific 
areas may be designated for the purpose of preserving or restoring them 
for their conservation, recreational, ecological, historical or 
esthetic values, and the criteria for such designations.


Sec. 923.23  Other areas of particular concern.

    (a) The management program may, but is not required to, designate 
specific areas known to require additional or special management, but 
for which additional management techniques have not been developed or 
necessary authorities have not been established at the time of program 
approval. If a management program includes such designations, the basis 
for designation must be clearly stated, and a reasonable time frame and 
procedures must be set forth for developing and implementing 
appropriate management techniques. These procedures must provide for 
the development of those items required in Sec. 923.21. The management 
program must identify an agency (or agencies) 

[[Page 9751]]
capable of formulating the necessary management policies and 
techniques.
    (b) The management program must meet the requirements of 
Sec. 923.22 for containing procedures for designating areas for 
preservation or restoration. The management program may include 
procedures and criteria for designating areas of particular concern for 
other than preservation or restoration purposes after program approval.


Sec. 923.24  Shorefront access and protection planning.

    (a) The management program must include a definition of the term 
``beach'' and a planning process for the protection of, and access to, 
public beaches and other public coastal areas of environmental, 
recreational, historical, esthetic, ecological or cultural value.
    (b) The basic purpose in focusing special planning attention on 
shorefront access and protection is to provide public beaches and other 
public coastal areas of environmental, recreational, historic, 
esthetic, ecological or cultural value with special management 
attention within the purview of the State's management program. This 
special management attention may be achieved by designating public 
shorefront areas requiring additional access or protection as areas of 
particular concern pursuant to Sec. 923.21 or areas for preservation or 
restoration pursuant to Sec. 923.22.
    (c) The management program must contain a procedure for assessing 
public beaches and other public areas, including State owned lands, 
tidelands and bottom lands, which require access or protection, and a 
description of appropriate types of access and protection.
    (d) The management program must contain a definition of the term 
``beach'' that is the broadest definition allowable under state law or 
constitutional provisions, and an identification of public areas 
meeting that definition.
    (e) The management program must contain an identification and 
description of enforceable policies, legal authorities, funding 
programs and other techniques that will be used to provide such 
shorefront access and protection that the State's planning process 
indicates is necessary.


Sec. 923.25  Shoreline erosion/mitigation planning.

    (a) The management program must include a planning process for 
assessing the effects of, and studying and evaluating ways to control, 
or lessen the impact of, shoreline erosion, including potential impacts 
of sea level rise, and to restore areas adversely affected by such 
erosion.
    (b) The basic purpose in developing this planning process is to 
give special attention to erosion issues. This special management 
attention may be achieved by designating erosion areas as areas of 
particular concern pursuant to Sec. 923.21 or as areas for preservation 
or restoration pursuant to Sec. 923.22.
    (c) The management program must include an identification and 
description of enforceable policies, legal authorities, funding 
techniques and other techniques that will be used to manage the effects 
of erosion, including potential impacts of sea level rise, as the 
state's planning process indicates is necessary.

Subpart D--Boundaries


Sec. 923.30  General.

    This subpart sets forth the requirements for management program 
approvability with respect to boundaries of the coastal zone. There are 
four elements to a State's boundary: the inland boundary, the seaward 
boundary, areas excluded from the boundary, and, in most cases, 
interstate boundaries. Specific requirements with respect to procedures 
for determining and identifying these boundary elements are discussed 
in the sections of this subpart that follow.


Sec. 923.31  Inland boundary.

    (a) The inland boundary of a State's coastal zone must include:
    (1) Those areas the management of which is necessary to control 
uses which have direct and significant impacts on coastal waters, or 
are likely to be affected by or vulnerable to sea level rise, pursuant 
to section 923.11 of these regulations.
    (2) Those special management areas identified pursuant to 
Sec. 923.21;
    (3) Waters under saline influence--Waters containing a significant 
quantity of seawater, as defined by and uniformly applied by the State;
    (4) Salt marshes and wetlands--Areas subject to regular inundation 
of tidal salt (or Great Lakes) waters which contain marsh flora typical 
of the region;
    (5) Beaches--The area affected by wave action directly from the 
sea. Examples are sandy beaches and rocky areas usually to the 
vegetation line;
    (6) Transitional and intertidal areas--Areas subject to coastal 
storm surge, and areas containing vegetation that is salt tolerant and 
survives because of conditions associated with proximity to coastal 
waters. Transitional and intertidal areas also include dunes and rocky 
shores to the point of upland vegetation;
    (7) Islands--Bodies of land surrounded by water on all sides. 
Islands must be included in their entirety, except when uses of 
interior portions of islands do not cause direct and significant 
impacts.
    (8) The inland boundary must be presented in a manner that is clear 
and exact enough to permit determination of whether property or an 
activity is located within the management area. States must be able to 
advise interested parties whether they are subject to the terms of the 
management program within, at a maximum, 30 days of receipt of an 
inquiry. An inland coastal zone boundary defined in terms of political 
jurisdiction (e.g., county, township or municipal lines) cultural 
features (e.g., highways, railroads), planning areas (e.g., regional 
agency jurisdictions, census enumeration districts), or a uniform 
setback line is acceptable so long as it includes the areas identified.
    (b) The inland boundary of a State's coastal zone may include:
    (1) Watersheds--A state may determine some uses within entire 
watersheds which have direct and significant impact on coastal waters 
or are likely to be affected by or vulnerable to sea level rise. In 
such cases it may be appropriate to define the coastal zone as 
including these watersheds.
    (2) Areas of tidal influence that extend further inland than waters 
under saline influence; particularly in estuaries, deltas and rivers 
where uses inland could have direct and significant impacts on coastal 
waters or areas that are likely to be affected by or vulnerable to sea 
level rise.
    (3) Indian lands not held in trust by the Federal Government.
    (c) In many urban areas or where the shoreline has been modified 
extensively, natural system relationships between land and water may be 
extremely difficult, if not, impossible, to define in terms of direct 
and significant impacts. Two activities that States should consider as 
causing direct and significant impacts on coastal waters in urban areas 
are sewage discharges and urban runoff. In addition, States should 
consider dependency of uses on water access and visual relationships as 
factors appropriate for the determination of the inland boundary in 
highly urbanized areas.


Sec. 923.32  Lakeward or seaward boundary.

    (a) (1) For states adjoining the Great Lakes, the lakeward boundary 
of the State's coastal zone is the international 

[[Page 9752]]
boundary with Canada or the boundaries with adjacent states. For states 
adjacent to the Atlantic or Pacific Ocean, or the Gulf of Mexico, the 
seaward boundary is the outer limit of state title and ownership under 
the Submerged Lands Act (48 U.S.C. 1301 et seq.), the Act of March 2, 
1917 (48 U.S.C. 749), the Covenant to Establish a Commonwealth of the 
Northern Mariana Islands in Political Union with the United States of 
America, as approved by the Act of March 24, 1976 (48 U.S.C. 1681 note) 
or section 1 of the Act of November 10, 1963, (48 U.S.C. 1705, as 
applicable).
    (2) The requirement for defining the seaward boundary of a State's 
coastal zone can be met by a simple restatement of the limits defined 
in this section, unless there are water areas which require a more 
exact delineation because of site specific policies associated with 
these areas. Where States have site specific policies for particular 
water areas, these shall be mapped, described or referenced so that 
their location can be determined reasonably easily by any party 
affected by the policies.
    (b) The seaward limits, as defined in this section, are for 
purposes of this program only and represent the area within which the 
State's management program may be authorized and financed. These limits 
are irrespective of any other claims States may have by virtue of other 
laws.


Sec. 923.33  Excluded lands.

    (a) The boundary of a State's coastal zone must exclude lands 
owned, leased, held in trust or whose use is otherwise by law subject 
solely to the discretion of the Federal Government, its officers or 
agents. To meet this requirement, the program must describe, list or 
map lands or types of lands owned, leased, held in trust or otherwise 
used solely by Federal agencies.
    (b) The exclusion of Federal lands does not remove Federal agencies 
from the obligation of complying with the consistency provisions of 
section 307 of the Act when Federal actions on these excluded lands 
have spillover impacts that affect any land or water use or natural 
resource of the coastal zone within the purview of a state's management 
program. In excluding Federal lands from a State's coastal zone for the 
purposes of this Act, a State does not impair any rights or authorities 
that it may have over Federal lands that exist separate from this 
program.


Sec. 923.34  Interstate boundary.

    States must document that there has been consultation and 
coordination with adjoining coastal States regarding delineation of any 
adjacent inland and lateral seaward boundary.

Subpart E--Authorities and Organization


Sec. 923.40  General.

    (a) This subpart sets forth the requirements for management program 
approvability with respect to authorities and organization. The 
authorities and organizational structure on which a State will rely to 
administer its management program are the crucial underpinnings for 
enforcing the policies which guide the management of the uses and areas 
identified in its management program. There is a direct relationship 
between the adequacy of authorities and the adequacy of the overall 
program. The authorities need to be broad enough in both geographic 
scope and subject matter to ensure implementation of the State's 
enforceable policies. These enforceable policies must be sufficiently 
comprehensive and specific to regulate land and water uses, control 
development, and resolve conflicts among competing uses in order to 
assure wise use of the coastal zone. (Issues relating to the adequate 
scope of the program are dealt with in Sec. 923.3.)
    (b) The entity or entities which will exercise the program's 
authorities is a matter of State determination. They may be the state 
agency designated pursuant to section 306(d)(6) of the Act, other state 
agencies, regional or interstate bodies, and local governments. The 
major approval criterion is a determination that such entity or 
entities are required to exercise their authorities in conformance with 
the policies of the management program. Accordingly, the essential 
requirement is that the State demonstrate that there is a means of 
ensuring such compliance. This demonstration will be in the context of 
one or a combination of the three control techniques specified in 
section 306(d)(11) of the Act. The requirements related to section 
306(d)(12) of the Act are described in Secs. 923.42 through 923.44 of 
this subchapter.
    (c) In determining the adequacy of the authorities and organization 
of a state's programs, the Assistant Administrator will review and 
evaluate authorities and organizational arrangements in light of the 
requirements of this subpart and the finding of section 302(h) of the 
Act.
    (d) The authorities requirements of the Act dealt with in this 
subpart are those contained in subsections 306(d)(2)(D)-Means of 
Control; 306(d)(10)-Authorities; 306(d)(10)(A)-Control Development and 
Resolve Conflicts; 306(d)(10)(B)-Powers of Acquisition; 306(d)(11)-
Techniques of Control; and 307(f)-Air and Water Quality Control 
Requirements. The organization requirements of the Act dealt with in 
this subpart are those contained in sections 306(d)(2)(F)-
Organizational Structure; 306(d)(6)-Designated State Agency; and 
306(d)(7)-Organization.


Sec. 923.41  Identification of authorities.

    (a) (1) The management program must identify the means by which the 
state proposes to exert control over the permissible land uses and 
water uses within the coastal zone which have a direct and significant 
impact on the coastal waters, including a listing of relevant state 
constitutional provisions, laws, regulations, and judicial decisions. 
These are the means by which the state will enforce its coastal 
management policies. (See section 304(6a) of the Act.)
    (2) The state chosen agency or agencies (including local 
governments, area-wide agencies, regional agencies, or interstate 
agencies) must have the authority for the management of the coastal 
zone. Such authority includes the following powers:
    (i) To administer land use and water use regulations to control 
development to ensure compliance with the management program, and to 
resolve conflicts among competing uses; and
    (ii) To acquire fee simple and less than fee simple interests in 
land, waters, and other property through condemnation or other means 
when necessary to achieve conformance with the management program.
    (b) In order to meet these requirements, the program must identify 
relevant state constitutional provisions, statutes, regulations, case 
law and such other legal instruments (including executive orders and 
interagency agreements) that will be used to carry out the state's 
management program, including the authorities pursuant to sections 
306(d)(10) and 306(d)(11) of the Act which require a state to have the 
ability to:
    (1) Administer land and water use regulations in conformance with 
the policies of the management program;
    (2) Control such development as is necessary to ensure compliance 
with the management program;
    (3) Resolve conflicts among competing uses; and
    (4) Acquire appropriate interest in lands, waters or other property 
as necessary to achieve management objectives. Where acquisition will 
be a necessary technique for accomplishing 

[[Page 9753]]
particular program policies and objectives, the management program must 
indicate for what purpose acquisition will be used (i.e., what policies 
or objectives will be accomplished); the type of acquisition (e.g., fee 
simple, purchase of easements, condemnation); and what agency (or 
agencies) of government have the authority for the specified type of 
acquisition.


Sec. 923.42  State establishment of criteria and standards for local 
implementation--Technique A.

    (a) The management program must provide for any one or a 
combination of general techniques specified in subsection 306(d)(11) of 
the Act for control of land uses and water uses within the coastal 
zone. The first such control technique, at subsection 306(d)(11)(A) of 
the Act, is state establishment of criteria and standards for local 
implementation, subject to administrative review and enforcement 
(control technique A).
    (b) There are 5 principal requirements that control technique A 
must embody in order to be approved:
    (1) The State must have developed and have in effect at the time of 
program approval enforceable policies that meet the requirements of 
Sec. 923.3. These policies must serve as the standards and criteria for 
local program development or the State must have separate standards and 
criteria, related to these enforceable policies, that will guide local 
program development.
    (2) During the period while local programs are being developed, a 
State must have sufficient authority to assure that land and water use 
decisions subject to the management program will comply with the 
program's enforceable policies. The adequacy of these authorities will 
be judged on the same basis as specified for direct State controls or 
case-by-case reviews.
    (3) A State must be able to ensure that coastal programs will be 
developed pursuant to the State's standards and criteria, or failing 
this, that the management program can be implemented directly by the 
State. This requirement can be met if a State can exercise any one of 
the following techniques:
    (i) Direct State enforcement of its standards and criteria in which 
case a State would need to meet the requirements of this section which 
address the direct State control technique;
    (ii) Preparation of a local program by a State agency which the 
local government then would implement. To use this technique the State 
must have statutory authority to prepare and adopt a program for a 
local government, and a mechanism by which the State can cause the 
local government to enforce the State-created program. Where the 
mechanism to assure local enforcement will be judicial relief, the 
program must include the authority under which judicial relief can be 
sought;
    (iii) State preparation and enforcement of a program on behalf of a 
local government. Here the State must have the authority to:
    (A) Prepare and adopt a plan, regulations, and ordinances for the 
local government and
    (B) Enforce such plans, regulations and ordinances;
    (iv) State review of local government actions on a case-by-case 
basis or on appeal, and prevention of actions inconsistent with the 
standards and criteria. Under this technique, when a local government 
fails to adopt an approvable program, the State must have the ability 
to review activities in the coastal zone subject to the management 
program and the power to prohibit, modify or condition those activities 
based on the policies, standards and criteria of the management 
program; or
    (v) If a locality fails to adopt a management program, the State 
may utilize a procedure whereby the responsibility for preparing a 
program shifts to an intermediate level government, such as a county. 
If this intermediate level of government fails to produce a program, 
then the State must have the ability to take one of the actions 
described above. This alternative cannot be used where the intermediate 
level of government lacks the legal authority to adopt and implement 
regulations necessary to implement State policies, standards and 
criteria.
    (4) A State must have a procedure whereby it reviews and certifies 
the local program's compliance with State standards and criteria. This 
procedure must include provisions for:
    (i) Opportunity for the public and governmental entities (including 
Federal agencies) to participate in the development of local programs; 
and
    (ii) Opportunity for the public and governmental entities 
(including Federal agencies) to make their views known (through public 
hearings or other means) to the State agency prior to approval of local 
programs; and
    (iii) Review by the State of the adequacy of local programs 
consideration of facilities identified in a State's management program 
in which there is a national interest.
    (5) A State must be able to assure implementation and enforcement 
of a local program once approved. To accomplish this a State must:
    (i) Establish a monitoring system which defines what constitutes 
and detects patterns of non-compliance. In the case of uses of regional 
benefit and facilities in which there is a national interest, the 
monitoring system must be capable of detecting single instances of 
local actions affecting such uses or facilities in a manner contrary to 
the management program.
    (ii) Be capable of assuring compliance when a pattern of deviation 
is detected or when a facility involving identified national interests 
or a use of regional benefit is affected in a manner contrary to the 
program's policies. When State action is required because of failure by 
a local government to enforce its program, the State must be able to do 
one or a combination of the following:
    (A) Directly enforce the entire local program;
    (B) Directly enforce that portion of the local program that is 
being enforced improperly. State intervention would be necessary only 
in those local government activities that are violating the policies, 
standards or criteria.
    (C) Seek judicial relief against local government for failure to 
properly enforce;
    (D) Review local government actions on a case-by-case basis or on 
appeal and have the power to prevent those actions inconsistent with 
the policies and standards.
    (E) Provide a procedure whereby the responsibility for enforcing a 
program shifts to an intermediate level of government, assuming 
statutory authority exists to enable the immediate of government to 
assume this responsibility.


Sec. 923.43  Direct State land and water use planning and regulation--
Technique B.

    (a) The management program must provide for any one or a 
combination of general techniques specified in subsection 306(d)(11) of 
the Act for control of land and water uses within the coastal zone. The 
second such control technique, at subsection 306(d)(11)(B) of the Act, 
is direct state land and water use planning and regulation (control 
technique B).
    (b) To have control technique B approved, the State must have the 
requisite direct authority to plan and regulate land and water uses 
subject to the management program. This authority can take the form of:
    (1) Comprehensive legislation--A single piece of comprehensive 
legislation specific to coastal 

[[Page 9754]]
management and the requirements of this Act.
    (2) Networking--The utilization of authorities which are compatible 
with and applied on the basis of coastal management policies developed 
pursuant to Sec. 923.3.
    (c) In order to apply the networking concept, the State must:
    (1) Demonstrate that, taken together, existing authorities can and 
will be used to implement the full range of policies and management 
techniques identified as necessary for coastal management purposes; and
    (2) Bind each party which exercises statutory authority that is 
part of the management program to conformance with relevant enforceable 
policies and management techniques. Parties may be bound to conformance 
through an executive order, administrative directive or a memorandum of 
understanding provided that:
    (i) The management program authorities provide grounds for taking 
action to ensure compliance of networked agencies with the program. It 
will be sufficient if any of the following can act to ensure 
compliance: The state agency designated pursuant to subsection 
306(d)(6) of the Act, the state's Attorney General, another state 
agency, a local government, or a citizen.
    (ii) The executive order, administrative directive or memorandum of 
understanding establishes conformance requirements of other State 
agency activities or authorities to management program policies. A 
gubernatorial executive order will be acceptable if networked State 
agency heads are directly responsible to the Governor.
    (3) Where networked State agencies can enforce the management 
program policies at the time of section 306 approval without first 
having to revise their operating rules and regulations, then any 
proposed revisions to such rules and regulations which would enhance or 
facilitate implementation need not be accomplished prior to program 
approval. Where State agencies cannot enforce coastal policies without 
first revising their rules and regulations, then these revisions must 
be made prior to approval of the State's program by the Assistant 
Administrator.


Sec. 923.44  State review on a case-by-case basis of actions affecting 
land and water uses subject to the management program-Technique C.

    (a) The management program must provide for any one or a 
combination of general techniques specified in subsection 306(d)(11) of 
the Act for control of land and water uses within the coastal zone. The 
third such control technique, at subsection 306(d)(11)(C) of the Act, 
is state administrative review for consistency with the management 
program of all development plans, projects, or land and water use 
regulations, including exceptions and variances thereto, proposed by 
any state or local authority or private developer, with power to 
approve or disapprove after public notice and an opportunity for 
hearings (control technique C).
    (b) Under case-by-case review, States have the power to review 
individual development plans, projects or land and water use 
regulations (including variances and exceptions thereto) proposed by 
any State or local authority or private developer which have been 
identified in the management program as being subject to review for 
consistency with the management program. This control technique 
requires the greatest degree of policy specificity because compliance 
with the program will not require any prior actions on the part of 
anyone affected by the program. Specificity also is needed to avoid 
challenges that decisions (made pursuant to the management program) are 
unfounded, arbitrary or capricious.
    (c) To have control technique C approved, a State must:
    (1) Identify the plans, projects or regulations subject to review, 
based on their significance in terms of impacts on coastal resources, 
potential for incompatibility with the State's coastal management 
program, and having greater than local significance;
    (2) Identify the State agency that will conduct this review;
    (3) Include the criteria by which identified plans, projects and 
regulations will be approved or disapproved;
    (4) Have the power to approve or disapprove identified plans, 
projects or regulations that are inconsistent with the management 
program, or the power to seek court review thereof; and
    (5) Provide public notice of reviews and the opportunity for public 
hearing prior to rendering a decision on each case-by-case review.


Sec. 923.45  Air and water pollution control requirements.

    The program must incorporate, by reference or otherwise, all 
requirements established by the Federal Water Pollution Control Act, as 
amended (Clean Water Act of CWA), or the Clean Air Act, as amended 
(CAA), or established by the Federal Government or by any state or 
local government pursuant to such Acts. Such requirements must be the 
water pollution control and air pollution control requirements 
applicable to such program. Incorporation of the air and water quality 
requirements pursuant to the CWA and CAA should involve their 
consideration during program development, especially with respect to 
use determinations and designation of areas for special management. In 
addition, this incorporation will prove to be more meaningful if close 
coordination and working relationships between the State agency and the 
air and water quality agencies are developed and maintained throughout 
the program development process and after program approval.


Sec. 923.46  Organizational structure.

    The State must be organized to implement the management program. 
The management program must describe the organizational structure that 
will be used to implement and administer the management program 
including a discussion of those state and other agencies, including 
local governments, that will have responsibility for administering, 
enforcing and/or monitoring those authorities or techniques required 
pursuant to the following subsections of the Act: 306(d)(3)(B); 
306(d)(10); 306(d)(10) (A) and (B); 306(d) (11) and (12); and 307(f). 
The management program must also describe the relationship of these 
administering agencies to the state agency designated pursuant to 
subsection 306(d)(6) of the Act.


Sec. 923.47  Designated State agency.

    (a) For program approval, the Governor of the state must designate 
a single state agency to receive and administer the grants for 
implementing the management program.
    (1) This entity must have the fiscal and legal capability to accept 
and administer grant funds, to make contracts or other arrangements 
(such as passthrough grants) with participating agencies for the 
purpose of carrying out specific management tasks and to account for 
the expenditure of the implementation funds of any recipient of such 
monies, and
    (2) This entity must have the administrative capability to monitor 
and evaluate the management of the State's coastal resources by the 
various agencies and/or local governments with specified 
responsibilities under the management program (irrespective of whether 
such entities receive section 306 funds); to make periodic reports to 
the Office of Ocean and Coastal Resource Management (OCRM), the 
Governor, or the State legislature, as appropriate, regarding the 
performance of all agencies involved in the program. 

[[Page 9755]]
The entity also must be capable of presenting evidence of adherence to 
the management program or justification for deviation as part of the 
review by OCRM of State performance required by section 312 of the Act.
    (b) (1) The 306 agency designation is designed to establish a 
single point of accountability for prudent use of administrative funds 
in the furtherance of the management and for monitoring of management 
activities. Designation does not imply that this single agency need be 
a ``super agency'' or the principal implementation vehicle. It is, 
however, the focal point for proper administration and evaluation of 
the State's program and the entity to which OCRM will look when 
monitoring and reevaluating a State's program during program 
implementation.
    (2) The requirement for the single designated agency should not be 
viewed as confining or otherwise limiting the role and responsibilities 
which may be assigned to this agency. It is up to the State to decide 
in what manner and to what extent the designated State agency will be 
involved in actual program implementation or enforcement. In 
determining the extent to which this agency should be involved in 
program implementation or enforcement, specific factors should be 
considered, such as the manner in which local and regional authorities 
are involved in program implementation, the administrative structure of 
the State, the authorities to be relied upon the agencies administering 
such authorities. Because the designated State agency may be viewed as 
the best vehicle for increasing the unity and efficiency of a 
management program, the State may want to consider the following in 
selecting which agency to designate:
    (i) Whether the designated State entity has a legislative mandate 
to coordinate other State or local programs, plans and/or policies 
within the coastal zone;
    (ii) To what extent linkages already exist between the entity, 
other agencies, and local governments;
    (iii) To what extent management or regulatory authorities affecting 
the coastal zone presently are administered by the agency; and
    (iv) Whether the agency is equipped to handle monitoring, 
evaluation and enforcement responsibilities.


Sec. 923.48  Documentation.

    A transmittal letter signed by the Governor is required for the 
submission of a management program for federal approval. The letter 
must state that the Governor:
    (a) Has reviewed and approved as State policy, the management 
program, and any changes thereto, submitted for the approval of the 
Assistant Administrator.
    (b) Has designated a single State agency to receive and administer 
implementation grants;
    (c) Attests to the fact that the State has the authorities 
necessary to implement the management program; and
    (d) Attests to the fact that the State is organized to implement 
the management program.

Subpart F--Coordination, Public Involvement and National Interest


Sec. 923.50  General.

    (a) Coordination with governmental agencies having interests and 
responsibilities affecting the coastal zone, and involvement of 
interest groups as well as the general public is essential to the 
development and administration of State coastal management programs. 
The coordination requirements of this subpart are intended to achieve a 
proper balancing of diverse interests in the coastal zone. The policies 
of section 303 of the Act require that there be a balancing of varying, 
sometimes conflicting, interests, including:
    (1) The preservation, protection, development and, where possible, 
the restoration or enhancement of coastal resources;
    (2) The achievement of wise use of coastal land and water resources 
with full consideration for ecological, cultural, historic, and 
aesthetic values and needs for compatible economic development;
    (3) The involvement of the public, of Federal, state and local 
governments and of regional agencies in the development and 
implementation of coastal management programs;
    (4) The management of coastal development to improve, safeguard, 
and restore coastal water quality; and
    (5) The study and development of plans for addressing the adverse 
effects of land subsidence and sea level rise.
    (b) In order to be meaningful, coordination with and participation 
by various units and levels of government including regional 
commissions, interest groups, and the general public should begin early 
in the process of program development and should continue throughout on 
a timely basis to assure that such efforts will result in substantive 
inputs into a State's management program. State efforts should be 
devoted not only to obtaining information necessary for developing the 
management program but also to obtaining reactions and recommendations 
regarding the content of the management program and to responding to 
concerns by interested parties. The requirements for intergovernmental 
cooperation and public participation continue after program approval.
    (c) This subpart deals with requirements for coordination with 
governmental entities, interest groups and the general public to assure 
that their interests are fully expressed and considered during the 
program development process and that procedures are created to insure 
continued consideration of their views during program implementation. 
In addition, this subpart deals with mediation procedures for serious 
disagreements between States and Federal agencies that occur during 
program development and implementation. This subpart addresses the 
requirements of the following subsections of the Act: 306(d)(1)--
Opportunity for Full Participation; 306(d)(3)(A)--Plan Coordination; 
306(d)(3)(B)--Continued State-Local Consultation; 306(d)(4)--Public 
Hearings; 306(d)(8)--Consideration of the National Interest in 
Facilities; 307(b)--Federal Consultation; and 307(h)--Mediation.


Sec. 923.51  Federal-State consultation.

    (a) The management program must be developed and adopted with the 
opportunity of full participation by relevant Federal agencies and with 
adequate consideration of the views of Federal agencies principally 
affected by such program.
    (b) By providing relevant Federal agencies with the opportunity for 
full participation during program development and for adequately 
considering the views of such agencies, States can effectuate the 
Federal consistency provisions of subsections 307 (c) and (d) of the 
Act once their programs are approved. (See 15 CFR part 930 for a full 
discussion of the Federal consistency provisions of the Act.)
    (c) In addition to the consideration of relevant Federal agency 
views required during program development, Federal agencies have the 
opportunity to provide further comment during the program review and 
approval process. (See subpart G for details on this process.) 
Moreover, in the event of a serious disagreement between a relevant 
Federal agency and designated State agency during program development 
or during program implementation, the mediation provisions of 
subsection 307(h) of the Act are available. (See Sec. 923.54 for 
details on mediation.)

[[Page 9756]]

    (d) In order to provide an opportunity for participation by 
relevant Federal agencies and give adequate consideration to their 
views, each state must:
    (i) Contact each relevant Federal Agency listed in Sec. 923.2(d) 
and such other Federal agencies as may be relevant, owing to a State's 
particular circumstances, early in the development of its management 
program. The purpose of such contact is to develop mutual arrangements 
or understandings regarding that agency's participation during program 
development;
    (2) Provide for Federal agency input on a timely basis as the 
program is developed. Such input shall be related both to information 
required to develop the management program and to evaluation of and 
recommendations concerning various elements of the management program;
    (3) Solicit statements from the head of Federal agencies identified 
in Table 1 of Sec. 923.52(c)(1) as to their interpretation of the 
national interest in the planning for and siting of facilities which 
are more than local in nature;
    (4) Summarize the nature, frequency, and timing of contacts with 
relevant Federal agencies;
    (5) Evaluate Federal comments received during the program 
development process and, where appropriate in the opinion of the State, 
accommodate the substance of pertinent comments in the management 
program. States must consider and evaluate relevant Federal agency 
views or comments about the following:
    (i) Management of coastal resources for preservation, conservation, 
development, enhancement or restoration purposes;
    (ii) Statements of the national interest in the planning for or 
siting of facilities which are more than local in nature;
    (iii) Uses which are subject to the management program;
    (iv) Areas which are of particular concern to the management 
program;
    (v) Boundary determinations;
    (vi) Shorefront access and protecting planning, energy facility 
planning and erosion planning processes; and
    (vii) Federally developed or assisted plans that must be 
coordinated with the management program pursuant to subsection 
306(d)(3) of the Act.
    (6) Indicate the nature of major comments by Federal agencies 
provided during program development (either by including copies of 
comments or by summarizing comments) and discuss any major differences 
or conflicts between the management program and Federal views that have 
not been resolved at the time of program submission.


Sec. 923.52  Consideration of the national interest in facilities.

    (a) The management program must provide for adequate consideration 
of the national interest involved in planning for, and managing the 
coastal zone, including the siting of facilities such as energy 
facilities which are of greater than local significance. In the case of 
energy facilities, the State must have considered any applicable 
national or interstate energy plan or program.
    (b) The primary purpose of this requirement is to assure adequate 
consideration by States of the national interest involved in the 
planning for and siting of facilities (which are necessary to meet 
other than local requirements) during:
    (1) The development of the State's management program,
    (2) The review and approval of the program by the Assistant 
Administrator, and
    (3) The implementation of the program as such facilities are 
proposed.
    (c) In order to fulfill this requirement, States must:
    (1) Describe the national interest in the planning for and siting 
of facilities considered during program development.
    (2) Indicate the sources relied upon for a description of the 
national interest in the planning for and siting of the facilities.
    (3) Indicate how and where the consideration of the national 
interest is reflected in the substance of the management program. In 
the case of energy facilities in which there is a national interest, 
the program must indicate the consideration given any national or 
interstate energy plans or programs which are applicable to or affect a 
state's coastal zone.
    (4) Describe the process for continued consideration of the 
national interest in the planning for and siting of facilities during 
program implementation, including a clear and detailed description of 
the administrative procedures and decisions points where such interest 
will be considered.


Sec. 923.53  Federal consistency procedures.

    (a) A State must include in its management program submission, as 
part of the body of the submission an appendix or an attachment, the 
procedures it will use to implement the Federal consistency 
requirements of subsections 307 (c) and (d) of the Act. At a minimum, 
the following must be included:
    (1) An indication of whether the state agency designated pursuant 
to subsection 306(d)(6) of the Act or a single other agency will handle 
consistency review (see 15 CFR 930.18);
    (2) A list of Federal license and permit activities that will be 
subject to review (see 15 CFR 930.53);
    (3) For States anticipating coastal zone effects from Outer 
Continental Shelf (OCS) activities, the license and permit list also 
must include OCS plans which describe in detail Federal license and 
permit activities (see 15 CFR 930.74); and
    (4) The public notice procedures to be used for certifications 
submitted for Federal License and permit activities and, where 
appropriate, for OCS plans (see 15 CFR 930.61 through 930.62 and 
930.78).
    (b) Beyond the minimum requirements contained in paragraph (a) of 
this section, States have the option of including:
    (1) A list of Federal activities, including development projects, 
which in the opinion of the State agency are likely to significantly 
affect the coastal zone and thereby will require a Federal agency 
consistency determination (see 15 CFR 930.35); and
    (2) A description of the types of information and data necessary to 
assess the consistency of Federal license and permit activities and, 
where appropriate, those described in detail in OCS plans (see 15 CFR 
930.56 and 930.75).


Sec. 923.54  Mediation.

    (a) Section 307(h) of the Act provides for mediation of serious 
disagreement between any Federal agency and a coastal state in the 
development and implementation of a management program. In certain 
cases, mediation by the Secretary, with the assistance of the Executive 
Office of the President, may be an appropriate forum for conflict 
resolution.
    (b) State-Federal differences should be addressed initially by the 
parties involved. Whenever a serious disagreement cannot be resolved 
between the parties concerned, either party may request the informal 
assistance of the Assistant Administrator in resolving the 
disagreement. This request shall be in writing, stating the points of 
disagreement and the reason therefor. A copy of the request shall be 
sent to the other party to the disagreement.
    (c) If a serious disagreement persists, the Secretary or other head 
of a relevant Federal agency, or the Governor or the head of the state 
agency designated by the Governor as administratively responsible for 
program development (if a state still is receiving section 305 

[[Page 9757]]
program development grants) or for program implementation (if a state 
is receiving section 306 program implementation grants) may notify the 
Secretary in writing of the existence of a serious disagreement, and 
may request that the Secretary seek to mediate the serious 
disagreement. A copy of the written request must be sent to the agency 
with which the requesting agency disagrees and to the Assistant 
Administrator.
    (d) Secretarial mediation efforts shall last only so long as the 
parties agree to participate. The Secretary shall confer with the 
Executive Office of the President, as necessary, during the mediation 
process.
    (e) Mediation shall terminate:
    (1) At any time the parties agree to a resolution of the serious 
disagreement,
    (2) If one of the parties withdraws from mediation,
    (3) In the event the parties fail to reach a resolution of the 
serious disagreement within 15 days following Secretarial mediation 
efforts, and the parties do not agree to extend mediation beyond that 
period, or
    (4) For other good cause.
    (f) The availability of the mediation services provided in this 
section 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 herein.


Sec. 923.55  Full participation by State and local governments, 
interested parties, and the general public.

    The management program must be developed and adopted with the 
opportunity of full participation by state agencies, local governments, 
regional commissions and organizations, port authorities, and other 
interested public and private parties. To meet this requirement, a 
State must:
    (a) Develop and make available general information regarding the 
program design, its content and its status throughout program 
development;
    (b) Provide a listing, as comprehensive as possible, of all 
governmental agencies, regional organizations, port authorities and 
public and private organizations likely to be affected by or to have a 
direct interest in the development and implementation of the management 
program;
    (c) Indicate the nature of major comments received from interested 
or affected parties, identified in paragraph (b)(2) of this section, 
and the nature of the State's response to these comments; and
    (d) Hold public meetings, workshops, etc., during the course of 
program development at accessible locations and convenient times, with 
reasonable notice and availability of materials.


Sec. 923.56  Plan coordination.

    (a) The management program must be coordinated with local, 
areawide, and interstate plans applicable to areas within the coastal 
zone--
    (1) Existing on January 1 of the year in which the state's 
management program is submitted to the Secretary; and
    (2) Which have been developed by a local government, an areawide 
agency, a regional agency, or an interstate agency.
    (b) A State must insure that the contents of its management program 
has been coordinated with local, areawide and interstate plans 
applicable to areas within the coastal zone existing on January 1 of 
the year in which the State's management program is submitted to the 
Assistant Administrator for approval. To document this coordination, 
the management program must:
    (1) Identify local governments, areawide agencies and regional or 
interstate agencies which have plans affecting the coastal zone in 
effect on January 1 of the year in which the management program is 
submitted;
    (2) List or provide a summary of contacts with these entities for 
the purpose of coordinating the management program with plans adopted 
by a governmental entity as of January 1 of the year in which the 
management program is submitted. At a minimum, the following plans, 
affecting a State coastal zone, shall be reviewed: land use plans 
prepared pursuant to section 701 of the Housing and Urban Development 
Act of 1968, as amended; State and areawide waste treatment facility or 
management plans prepared pursuant to sections 201 and 208 of the Clean 
Water Act, as amended; plans and designations made pursuant to the 
Flood Insurance Act of 1974; any applicable interstate energy plans or 
programs developed pursuant to section 309 of the Act; regional and 
interstate highway plans; plans developed by Regional Action Planning 
Commission; and fishery management plans developed pursuant to the 
Fisheries Conservation and Management Act.
    (3) Identify conflicts with those plans of a regulatory nature that 
are unresolved at the time of program submission and the means that can 
be used to resolve these conflicts.


Sec. 923.57  Continuing consultation.

    (a) As required by subsection 306(d)(3)(B) of the Act, a State must 
establish an effective mechanism for continuing consultation and 
coordination between the management agency designated pursuant to 
paragraph (6) of section 306(d) of the Act and with local governments, 
interstate agencies, regional agencies, and areawide agencies within 
the coastal zone to assure the full participation of those local 
governments and agencies in carrying out the purposes of this Act.
    (b) The management program must establish a procedure whereby local 
governments with zoning authority are notified of State management 
program decisions which would conflict with any local zoning ordinance 
decision.
    (1) ``Management program decision'' refers to any major, 
discretionary policy decisions on the part of a management agency, such 
as the determination of permissible land and water uses, the 
designation of areas or particular concern or areas for preservation or 
restoration, or the decision to acquire property for public uses. 
Regulatory actions which are taken pursuant to these major decisions 
are not subject to the State-local consultation mechanisms. A State 
management program decision is in conflict with a local zoning 
ordinance if the decision is contradictory to that ordinance. A State 
management program decision that consists of additional but not 
contradictory requirements is not in conflict with a local zoning 
ordinance, decision or other action;
    (2) ``Local government'' refers to these defined in section 304(11) 
of the Act which have some form of zoning authority.
    (3) ``Local zoning ordinance, decision or other action'' refers to 
any local government land or water use action which regulates or 
restricts the construction, alteration of use of land, water or 
structures thereon or thereunder. These actions include zoning 
ordinances, master plans and official maps. A local government has the 
right to comment on a State management program decision when such 
decision conflicts with the above specified actions;
    (4) Notification must be in writing and must inform the local 
government of its right to submit comments to the State management 
agency in the event the proposed State management program decision 
conflicts with a local zoning ordinance, decision or other 

[[Page 9758]]
action. The effect of providing such notice is to stay State action to 
implement its management decision for at least a 30-day period unless 
the local government waives its right to comment.
    (5) ``Waiver'' of the right of local government to comment (thereby 
permitting a State agency to proceed immediately with implementation of 
the management program decision) shall result:
    (i) Following State agency receipt of a written statement from a 
local government indicating that it either:
    (A) Waives its right to comment; or
    (B) Concurs with the management program decision; or
    (C) Intends to take action which conflicts or interferes with the 
management program decision; or
    (ii) Following a public statement by a local government to the same 
effect as paragraph (b)(5)(i) of this section; or
    (iii) Following an action by a local government that conflicts or 
interferes with the management program decision.
    (6) The management program shall include procedures to be followed 
by a management agency in considering a local government's comments. 
These procedures shall include, at a minimum, circumstances under which 
the agency will exercise its discretion to hold a public hearing. Where 
public hearings will be held, the program must set forth notice and 
other hearing procedures that will be followed. Following State agency 
consideration of local comments (when a discretionary public hearing is 
not held) or following public hearing, the management agency shall 
provide a written response to the affected local government, affected 
local government, within a reasonable period of time and prior to 
implementation of the management program decision, on the results of 
the agency's consideration of public comments.


Sec. 923.58  Public hearings.

    The management program must be developed and adopted after the 
holding of public hearings. A State must:
    (a) Hold a minimum of two public hearings during the course of 
program development, at least one of which will be on the total scope 
of the coastal management program. Hearings on the total management 
program do not have to be held on the actual document submitted to the 
Assistant Administrator for section 306 approval. However, such 
hearing(s) must cover the substance and content of the proposed 
management program in such a manner that the general public, and 
particularly affected parties, have a reasonable opportunity to 
understand the impacts of the management program. If the hearing(s) are 
not on the management document per se, all requests for such document 
must be honored and comments on the document received prior to 
submission of the document to the Assistant Administrator must be 
considered;
    (b) Provide a minimum of 30 days public notice of hearing dates and 
locations;
    (c) Make available for public review, at the time of public notice, 
all agency materials pertinent to the hearings; and
    (d) Include a transcript or summary of the public hearing(s) with 
the State's program document or submit same within thirty (30) days 
following submittal of the program to the Assistant Administrator. At 
the same time this transcript or summary is submitted to the Assistant 
Administrator, it must be made available, upon request, to the public.

Subpart G--Review/Approval Procedures


Sec. 923.60  Review/approval procedures.

    (a) All state management program submissions must contain an 
environmental assessment at the time of submission of the management 
program to OCRM for threshold review. In accordance with regulations 
implementing the National Environmental Policy Act of 1969, as amended, 
OCRM will assist the State by outlining the types of information 
required. (See 40 CFR 1506.5 (a) and (b).)
    (b) Upon submission by a State of its draft management program, 
OCRM will determine if it adequately meets the requirements of the Act 
and this part. Assuming positive findings are made and major revisions 
to the State's draft management program are not required, OCRM will 
prepare draft and final environmental impact statements, in accordance 
with National Environmental Policy Act requirements. Because the review 
process involves preparation and dissemination of draft and final 
environmental impact statements and lengthy Federal agency review; 
states should anticipate that it will take at least 7 months between 
the time a state first submits a draft management program to OCRM for 
threshold review and the point at which the Assistant Administrator 
makes a final decision on whether to approve the management program. 
Certain factors will contribute to lengthening or shortening this 
timetable; these factors are discussed in OCRM guidance on the review/
approval process. The OCRM guidance also recommends a format for the 
program document submitted to the Assistant Administrator for review 
and approval.

Subpart H--Amendments to and Termination of Approved Management 
Programs.


Sec. 923.80  General.

    (a) This subpart establishes the criteria and procedures by which 
amendments, modifications or other changes to approved management 
programs may be made. This subpart also establishes the conditions and 
procedures by which administrative funding may be terminated for 
programmatic reasons.
    (b) Any coastal state may amend or modify a management program 
which is has submitted and which has been approved by the Assistant 
Administrator under this subsection, subject to the conditions provided 
for in subsection 306(e) of the Act.
    (c) As required by subsection 312(d) of the Act, the Assistant 
Administrator shall withdraw approval of the management program of any 
coastal state and shall withdraw financial assistance available to that 
state under this title as well as any unexpended portion of such 
assistance, if the Assistant Administrator determines that the coastal 
state has failed to take the actions referred to in subsection 
312(c)(2)(A) of the Act.
    (d) For purposes of this subpart, amendments are defined as 
substantial changes in one or more of the following coastal management 
program areas:
    (1) Uses subject to management;
    (2) Special management areas;
    (3) Boundaries;
    (4) Authorities and organization; and
    (5) Coordination, public involvement and the national interest.
    (e) OCRM will provide guidance on program changes. The five program 
management areas identified in Sec. 923.80(d) are also discussed in 
subparts B through F of this part.


Sec. 923.81  Requests for amendments.

    (a) Requests for amendments shall be submitted to the Assistant 
Administrator by the Governor of a coastal state with an approved 
management program or by the head of the state agency (designated 
pursuant to subsection 306(d)(6) of the Act) if the Governor had 
delegated this responsibility and such delegation is part of the 
approved management program. Whenever possible, requests should be 
submitted prior to final State action to implement the amendment. At 
least one public hearing must be held on the proposed amendment, 
pursuant to 

[[Page 9759]]
subsection 306(d)(4) of the Act. Pursuant to section 311 of the Act, 
notice of such public hearing(s) must be announced at least 30 days 
prior to the hearing date. At the time of the announcement, relevant 
agency materials pertinent to the hearing must be made available to the 
public.
    (b) Amendment requests must contain the following:
    (1) A description of the proposed change, including specific pages 
and text of the management program that will be changed if the 
amendment is approved by the Assistant Administrator. This description 
shall also identify any enforceable policies to be added to the 
management program;
    (2) An explanation of why the change is necessary and appropriate, 
including a discussion of the following factors, as relevant: Changes 
in coastal zone needs, problems, issues, or priorities. This discussion 
also shall identify which findings, if any, made by the Assistant 
Administrator in approving the management program may need to be 
modified if the amendment is approved;
    (3) A copy of public notice(s) announcing the public hearing(s) on 
the proposed amendments;
    (4) A summary of the hearing(s) comments:
    (i) Where OCRM is providing Federal agency review concurrent with 
the notice period for the State's public hearing, this summary of 
hearing(s) comments may be submitted to the Assistant Administrator 
within 60 days after the hearing;
    (ii) Where hearing(s) summaries are submitted as a supplement to 
the amendment request (as in the case described in paragraph (b)(1) of 
this section), the Assistant Administrator will not take final action 
to approve or disapprove an amendment request until the hearing(s) 
summaries have been received and reviewed; and
    (5) Documentation of opportunities provided relevant Federal, 
State, regional and local agencies, port authorities and other 
interested public and private parties to participate in the development 
and approval at the State level of the proposed amendment.


Sec. 923.82  Amendment review/approval procedures.

    (a) Upon submission by a State of its amendment request, OCRM will 
review the request to determine preliminarily if the management 
program, if changed according to the amendment request, still will 
constitute an approvable program. In making this determination, OCRM 
will determine whether the state has satisfied the applicable program 
approvability criteria of subsection 306(d) of the Act.
    (b) If the Assistant Administrator, as a preliminary matter, 
determines that the management program, if changed, would no longer 
constitute an approvable program, or if any of the procedural 
requirements of section 306(d) of the Act have not been met, the 
Assistant Administrator shall advise the state in writing of the 
reasons why the amendment request cannot be considered.
    (c) If the Assistant Administrator, as a preliminary matter, 
determines that the management program, if changed, would still 
constitute an approvable program and that the procedural requirements 
of section 306(d) of the Act have been met, the Assistant Administrator 
will then determine, pursuant to the National Environmental Policy Act 
of 1969, as amended, whether an environmental impact statement (EIS) is 
required.


Sec. 923.83  Medication of amendments.

    (a) Section 307(h)(2) of the Act provides for mediation of 
``serious disagreements'' between a Federal agency and a coastal State 
during administration of an approved management program. Accordingly 
mediation is available to states or federal agencies when a serious 
disagreement regarding a proposed amendment arises.
    (b) Mediation may be requested by a Governor or head of a state 
agency designated pursuant to subsection 306(d)(6) or by the head of a 
relevant Federal agency. Mediation is a voluntary process in which the 
Secretary of Commerce attempts to mediate between disagreeing parties 
over major problems. (See Sec. 923.54).


Sec. 923.84  Routine program changes.

    (a) Further detailing of a State's program that is the result of 
implementing provisions approved as part of a State's approved 
management program, that does not result in the type of action 
described in Sec. 923.80(d), will be considered a routine program 
change. While a routine change is not subject to the amendment 
procedures contained in Secs. 923.81 through 923.82, it is subject to 
mediation provisions of Sec. 923.83.
    (b) (1) States must notify OCRM of routine program change actions 
in order that OCRM may review the action to ensure it does not 
constitute an amendment. The state notification shall identify and 
enforceable policies to be added to the management program, and explain 
why the program change will not result in the type of action described 
in Sec. 923.80(d).
    (i) States have the option of notifying OCRM of routine change on a 
case-by-case basis, periodically throughout the year, or annually.
    (ii) In determining when an how often to notify OCRM of such 
actions, States should be aware that Federal consistency will apply 
only after the notice required by paragraph (b)(4) of this section has 
been provided.
    (2) Concurrent with notifying OCRM, States must provide notice to 
the general public and affected parties, including local governments, 
other State agencies and regional offices of relevant federal agencies 
of the notification given OCRM.
    (i) This notice must:
    (A) Describe the nature of the routine program change and identify 
any enforceable policies to be added to the management program if the 
State's request is approved;
    (B) Indicate that the State considers it to be a routine program 
change and has requested OCRM's concurrence in that determination; and
    (C) Indicate that any comments on whether or not the action does or 
does not constitute a routine program change may be submitted to OCRM 
within 3 weeks of the date of issuance of the notice.
    (ii) Where relevant Federal agencies do not maintain regional 
offices, notice must be provided to the headquarters office.
    (3) Within 4 weeks of receipt of notice from a State, OCRM will 
inform the State whether it concurs that the action constitutes a 
routine program change. Failure to notify a State in writing within 4 
weeks of receipt of notice shall be considered concurrence.
    (4) Where OCRM concurs, a State then must provide notice of this 
fact to the general public and affected parties, including local 
governments, other State agencies and relevant Federal agencies.
    (i) This notice must:
    (A) Indicate the date on which the State received concurrence from 
OCRM that the action constitutes a routine program change;
    (B) Reference the earlier notice (required in paragraph (b)(2) of 
this section) for a description of the content of the action; and
    (C) Indicate if Federal consistency applies as of the date of the 
notice called for in this paragraph.
    (ii) Federal consistency shall not be required until this notice 
has been provided.
    (5) Where OCRM does not concur, a State will be advised to:
    (i) submit the action as an amendment, subject to the provisions of 
Secs. 923.81 through 923.82; or

[[Page 9760]]

    (ii) resubmit the routine program change with additional 
information requested by OCRM concerning how the program will be 
changed as a result of the action.
Subpart I--Applications for Program Development or Implementation 
Grants
Sec. 923.90   General.
    (a) The primary purpose of development grants made pursuant to 
section 305 of the Act is to assist coastal States in the development 
of comprehensive coastal management programs that can be approved by 
the Assistant Administrator. The primary purpose of implementation 
grants made pursuant to section 306 of the Act is to assist coastal 
States in implementing coastal management programs following their 
approval, including especially administrative actions to implement 
enforceable program policies, authorities and other management 
techniques. The purpose of the guidelines in this subpart is to define 
the procedures by which grantees apply for and administer grants under 
the Act. These guidelines shall be used and interpreted in conjunction 
with applicable Federal laws and policies, Department of Commerce 
grants management regulations, policies and procedures, and any other 
applicable directives from the NOAA Grants Management Division and OCRM 
program offices.
    (b) Grants awarded to a State must be expended for the development 
or administration, as appropriate, of a management program that meets 
the requirements of the Act, and in accordance with the terms of the 
award.
    (c) All applications for funding under section 305 or 306 of the 
Act, including proposed work programs, funding priorities and 
allocations are subject to the discretion of the Assistant 
Administrator.
    (d) For purposes of this subpart, the term ``development grant'' 
means a grant awarded pursuant to subsection 305(a) of the Act. 
``Administrative grant'' and ``implementation grant'' are used 
interchangeably and mean grants awarded pursuant to subsection 306(a) 
of the Act.
    (e) All application and preapplication forms are to be requested 
from and submitted to: National Oceanic and Atmospheric Administration, 
Office of Ocean and Coastal Resource Management, Coastal Programs 
Division, 1305 East-West Highway (N/ORM3), Silver Spring, MD 20910.


Sec. 923.91   State responsibility.

    (a) Applications for program grants are required to be submitted by 
the Governor of a participating state or by the head of the state 
entity designated by the Governor pursuant to subsection 306(d)(6) of 
the Act.
    (b) In the case of a section 305 grant, the application must 
designate a single state agency or entity to receive development grants 
and to be responsible for development of the State's coastal management 
program. The designee need not be that entity designated by the 
Governor pursuant to subsection 306(d)(6) of the Act as a single agency 
to receive and administer implementation grants.
    (c) One State application will cover all program activities for 
which program development or implementation funds under this Act and 
matching State funds are provided, irrespective of whether these 
activities will be carried out by State agencies, areawide or regional 
agencies, local governments, or interstate entities.
    (d) The designated State entities shall be fiscally responsible for 
all expenditures made under the grant, including expenditures by 
subgrantees and contractors.
Sec. 923.92  Allocation.

    (a) Subsections 303(4), 306(d)(3)(B) and 306(d)(10) of the Act 
foster intergovernmental cooperation in that a state, in accordance 
with its coastal zone management program, may allocate some of its 
coastal zone management responsibilities to several agencies, including 
local governments, areawide agencies, regional agencies and interstate 
agencies. Such allocations provide for continuing consultation and more 
effective participation and cooperation among state and local 
governments, interstate, regional and areawide agencies.
    (b) A State may allocate a portion or portions of its grant to 
other State agencies, local governments, areawide or regional agencies, 
interstate entities, or Indian tribes, if the work to result from such 
allocation(s) will contribute to the effective development or 
implementation of the State's management program.
    (1) Local governments. Should a State desire to allocate a portion 
of its grant to a local government, units of general-purpose local 
government are preferred over special-purpose units of local 
government. Where a State will be relying on direct State controls as 
provided for in subsection 306(d)(11)(B) of the Act, pass-throughs to 
local governments for local planning, regulatory or administrative 
efforts under a section 306 grant cannot be made, unless they are 
subject to adequate State overview and are part of the approved 
management program. Where the approved management program provides for 
other specified local activities or one-time projects, again subject to 
adequate State overview, then a portion of administrative grant funds 
may be considered regional agencies and may be allocated to local 
governments.
    (2) Indian Tribes. Tribal participation in coastal management 
efforts may be supported and encouraged through a State's program. 
Individual tribes or groups of tribes may be considered regional 
agencies and may be allocated a portion of a State's grant for the 
development of independent tribal coastal management programs or the 
implementation of specific management projects provided that:
    (i) The State certifies that such tribal programs or projects are 
compatible with its approved coastal management policies; and
    (ii) On excluded tribal lands, the State demonstrates that the 
tribal program or project would or could directly affect the State's 
coastal zone.
Sec. 923.93  Eligible implementation costs.

    (a) Costs claimed must be beneficial and necessary to the 
objectives of the grant project. As used herein the terms cost and 
grant project pertain to both the Federal and the matching share. 
Allowability of costs will be determined in accordance with the 
provisions of OMB Circular A-87: Cost Principles for State, Local and 
Indian Tribal Governments.
    (b) Federal funds awarded pursuant to section 306 of the Act may 
not be used for land acquisition purposes and may not be used for 
construction purposes. These costs may be eligible, however, pursuant 
to section 306A of the Act.
    (c) The primary purpose for which implementation funds, pursuant to 
section 306 of the Act, are to be used is to assure effective 
implementation and administration of the management program, including 
especially administrative actions to implement enforceable program 
policies, authorities and other management techniques. Implementation 
activities should focus on achieving the policies of the Act.
    (d) Section 306 funding in support of any of these purposes may be 
used to fund, among other things:
    (1) Personnel costs,
    (2) Supplies and overhead,
    (3) Equipment, and
    (4) Feasibility studies and preliminary engineering reports.
    
[[Page 9761]]

    (e) States are encouraged to coordinate administrative funding 
requests with funding possibilities pursuant to sections 306A, 308, 
309, 310 and 315 of the Act, as well as with funding possibilities 
pursuant to section 6217 of the Coastal Zone Act Reauthorization 
Amendments to 1990. When in doubt as to the appropriate section of the 
Act under which to request funding, States should consult with OCRM. 
States should consult with OCRM on technical aspects of consolidating 
requests into a single application.


Sec. 923.94  Application for program development or implementation 
grants.

    (a) OMB Standard Form 424 (4-92) and the NOAA Application Kit for 
Federal Assistance constitute the formal application. An original and 
two (2) copies must be submitted 45 days prior to the desired grant 
beginning date. The application must be accompanied by evidence of 
compliance with E.O. 12372 requirements including the resolution of any 
problems raised by the proposed project. The administrative 
requirements for grants and subawards, under this program, to state, 
local and Indian tribal governments are set out in 15 CFR Part 24. The 
administrative requirements for other entities are prescribed under OMB 
Circular A-110: Administrative Requirements for Grants and Agreements 
with Institutions of Higher Education, Hospitals and Other Non-Profit 
Organizations.
    (b) Costs claimed as charges to the grant project must be 
beneficial and necessary to the objectives of the grant project. As 
used herein, the terms ``cost'' and ``grant project'' pertain to both 
the Federal amount awarded and the non-federal matching share. 
Allowability of costs will be determined in accordance with the 
provisions of OMB Circular A-87: Cost Principles for State, Local and 
Indian Tribal Governments. Eligible implementation costs also shall be 
determined in accordance with Sec. 923.93 of these regulations. 
Allowability of costs for non-profit organizations will be determined 
in accordance with OMB Circular A-122: Cost Principles for Non-Profit 
Organizations. Allowability of costs for institutions of higher 
education will be determined in accordance with OMB Circular A-21: Cost 
Principles for Educational Institutions.
    (c) In the grant application, the applicant must describe clearly 
and briefly the activities that will be undertaken with grant funds in 
support of implementation and administration of the management program. 
This description must include:
    (1) An identification of those elements of the approved management 
program that are to be supported in whole or in part by the Federal and 
the matching share,
    (2) A clear statement of the major tasks required to implement each 
element,
    (3) For each task the application must:
    (i) Specify how it will be accomplished and by whom;
    (ii) Identify any sub-awardees (other State agencies, local 
governments, individuals, etc.) that will be allocated responsibility 
for carrying out all or portions of the task, and indicate the 
estimated cost of the sub-awards for each allocation; and
    (iii) Indicate the estimated total cost.
    (4) The sum of all task costs in paragraph (c)(3) of this section 
should equal the total estimated grant project cost.
    (d) For program development grants, when evaluating whether a State 
is making satisfactory progress toward completion of an approvable 
management program which is necessary to establish eligibility for 
subsequent grants, the Assistant Administrator will consider:
    (1) The progress made toward meeting management program goals and 
objectives;
    (2) The progress demonstrated in completing the past year's work 
program;
    (3) The cumulative progress toward meeting the requirements for 
preliminary or final approval of a coastal management program;
    (4) The applicability of the proposed work program to fulfillment 
of the requirement for final approval; and
    (5) The effectiveness of mechanisms for insuring public 
participation and consultation with affected Federal, State, regional 
and local agencies in program development.


Sec. 923.95  Approval of applications.

    (a) The application for a grant by any coastal State which complies 
with the policies and requirements of the Act and these guidelines 
shall be approved by the NOAA Grants Officer, upon recommendation by 
the Assistant Administrator, assuming available funding.
    (b) Should an application be found deficient, the Assistant 
Administrator will notify the applicant in detail of any deficiency 
when an application fails to conform to the requirements of the Act or 
these regulations. Conferences may be held on these matters. 
Corrections or adjustments to the application will provide the basis 
for resubmittal of the application for further consideration and 
review.
    (c) The NOAA Grants Officer, upon recommendation by the Assistant 
Administrator, may waive appropriate administrative requirements 
contained in this subpart, upon finding of extenuating circumstances 
relating to applications for assistance.


Sec. 923.96  Grant amendments.

    (a) Actions that require an amendment to a grant award such as a 
request for additional Federal funds, changes in the amount of the non-
Federal share, changes in the approved project budget as specified in 
15 CFR Part 24, or extension of the grant period must be submitted to 
the Assistant Administrator and approved in writing by the NOAA Grants 
Officer prior to initiation of the contemplated change. Such requests 
should be submitted at least 30 days prior to the proposed effective 
date of the change and, if appropriate, accompanied by evidence of 
compliance with E.O. 12372 requirements.
    (b) NOAA shall acknowledge receipt of the grantee's request within 
the ten (10) working days of receipt of the correspondence. This 
notification shall indicate NOAA's decision regarding the request; or 
indicate a time-frame within which a decision will be made.

PART 926--[REMOVED]

    5. Part 926 which is currently reserved is removed.

PART 927--[REDESIGNATED AS PART 923, SUBPART J]

    6. Part 927, consisting of Sec. 927.1, is redesignated as subpart J 
of part 923, consisting of Sec. 923.110.

PART 928--[REDESIGNATED AS PART 923, SUBPART L]

    7. Part 928 is redesignated as subpart L of part 923, and 
Secs. 928.1 through 928.5 are redesignated as Secs. 923.131 through 
923.135 in the subpart.


Sec. 923.131  [Amended]

    8. Redesignated Sec. 923.131 is amended by replacing the two 
references to ``this part'' in the introductory text with references to 
``this subpart.''


Sec. 923.133  [Amended]

    9. Redesignated Sec. 923.133 is amended by changing the references 
to 15 CFR 928.3 and 928.4 in paragraph (b)(9), the reference to 
Sec. 928.2(d) in paragraph (c)(2), and the reference to 
Sec. 928.3(c)(4) in paragraph (d)(2), as references to Secs. 923.133 
and 923.134, Sec. 923.132(d) and Sec. 923.133(c)(4), respectively.

[[Page 9762]]



Sec. 923.134  [Amended]

    10. Redesignated Sec. 923.134 is amended by changing the reference 
to 15 CFR 928.3(b)(7) in paragraph (b)(3) as a reference to 
Sec. 923.133(b)(7).


Sec. 923.135  [Amended]

    11. Redesignated Sec. 923.135 is amended as follows:
    (1) by changing the reference to 15 CFR 928.5(a)(3) in paragraph 
(a)(2)(i) as a reference to Sec. 923.135(a)(3),
    (2) by changing the reference to 15 CFR 928.4 in paragraph 
(a)(2)(ii) as a reference to Sec. 923.134,
    (3) by changing the reference to 15 CFR 923.81(c) in paragraph 
(a)(3)(i)(G) as a reference to 15 CFR 923.81(a), and
    (4) by changing the four references to 15 CFR 928.5(a)(2) in 
paragraphs (b)(2)(i) and (iii) as references to Sec. 923.135(a)(2).

PART 932--[REDESIGNATED AS PART 923, SUBPART K]

    12. Part 932 is redesignated as Subpart K of Part 923, and 
Secs. 932.1 through 932.8 are redesignated as Secs. 923.121 through 
923.128 in the Subpart.
    13. Redesignated Sec. 923.121 is amended by revising paragraph (h) 
to read as follows:


Sec. 923.121  General.

* * * * *
    (h) All application forms are to be requested from and submitted 
to: National Oceanic and Atmospheric Administration, Office of Ocean 
and Coastal Resource Management, Coastal Programs Division, 1305 East-
West Highway (N/ORM3), Silver Spring, MD 20910.
    14. Redesignated Sec. 923.121 is further amended as follows:
    (1) by changing the references to ``this part'' in paragraphs (a) 
and (b) with references to ``this subpart'', and
    (2) by changing the reference to 15 CFR 932.8 in paragraph (b)(1) 
as a reference to Sec. 923.128.


Sec. 923.123  [Amended]

    15. Redesignated Sec. 923.123 is amended as follows:
    (1) in paragraph (a), by replacing ``routine program 
implementation'' with ``routine program change'',
    (2) in the footnote in paragraph (b), the address is revised to 
read: ``Office of Ocean and Coastal Resource Management, Coastal 
Programs Division, 1305 East-West Highway (N/ORM3), Silver Spring, MD 
20910'', and
    (3) by changing the reference to 15 CFR 932.5(a) in paragraph (d) 
and the reference to 15 CFR 932.5(b) in paragraph (e), as references to 
Secs. 923.125(a) and 923.125(b), respectively.


Sec. 923.124  [Amended]

    16. Redesignated Sec. 923.124 is amended as follows:
    (1) by changing the reference to 15 CFR 932.1(b) and 15 CFR 
927.1(c) in paragraph (d)(1)(i) as references to Secs. 923.121(b) and 
923.110(c), respectively,
    (2) by changing the reference to 15 CFR 932.4(d) in paragraph 
(d)(1)(iii) as a reference to Sec. 923.124(d),
    (3) by changing the reference to 15 CFR 932.8 in paragraph (d)(3) 
as a reference to Sec. 923.128,
    (4) by changing the references to 15 CFR 932.4(d), 15 CFR 932.3(d) 
and 15 CFR 932.5(b) in paragraph (e) as references to Secs. 923.124(d), 
923.123(d), and 923.125(b), respectively, and
    (5) by changing the references to 15 CFR 932.4(b), 15 CFR 932.4(c), 
15 CFR 932.4(d) and 15 CFR 932.4(e) in paragraph (f) as references to 
Secs. 923.124(b), 923.124(c), 923.124(d) and 923.124(e), respectively.


Sec. 923.125  [Amended]

    17. Redesignated Sec. 923.125 is amended as follows:
    (1) by changing the reference to 15 CFR 932.6(b)(1) in paragraph 
(a)(1)(v) as a reference to Sec. 923.126(b)(1),
    (2) by changing the reference to 15 CFR 932.3(e) in paragraph 
(b)(2)(ii) as a reference to Sec. 923.123(e),
    (3) by changing the reference to 15 CFR 932.3(f) in paragraph 
(b)(2)(iii) as a reference to Sec. 923.123(f), and
    (4) by changing the references to Sec. 932.5(a) and 15 CFR 932.5(b) 
in paragraph (c) as references to Secs. 923.125(a) and 923.125(b), 
respectively.
    18. Redesignated Sec. 923.125 is further amended by removing 
footnote two in paragraph (a)(1)(ii).


Sec. 923.126  [Amended]

    19. Redesignated Sec. 923.126 is amended as follows:
    (1) by changing the references to 15 CFR 932.6(b) and 15 CFR 
932.1(b) in paragraph (a) as references to Secs. 923.126(b) and 
923.121(b), respectively,
    (2) by changing the reference to 15 CFR 923.95(d)(3)(ii) in 
paragraph (b)(1)(iii) as a reference to Sec. 923.94(d)(3)(ii),
    (3) by changing the references to 15 CFR 932.5(a) and 15 CFR 
932.5(b) in paragraph (b)(4) as references to Secs. 923.125(a) and 
923.125(b), respectively,
    (4) by changing the reference to 15 CFR 932.3(a) in paragraph 
(b)(7) as a reference to Sec. 923.123(a),
    (5) by changing the references to 15 CFR 932.5(a) and 15 CFR 
932.4(d) in paragraph (b)(8) as references to Secs. 923.125(a) and 
923.124(d), respectively,
    (6) by changing the references to 15 CFR 932.5(a) and 15 CFR 
932.5(b) in paragraph (c)(3) as references to Secs. 923.125(a) and 
923.125(b), respectively,
    (7) by changing the references to 15 CFR 932.5(a) and 15 CFR 
932.4(d) in paragraph (c)(4) as references to Secs. 923.125(a) and 
923.124(d), respectively, and
    (8) by changing the reference to subpart J of 15 CFR part 923 in 
paragraph (c)(5) as a reference to subpart I of 15 CFR part 923.


Sec. 923.127   [Amended]

    20. Redesignated Sec. 923.127 is amended as follows:
    (1) by changing the reference to subpart J of 15 CFR part 923 in 
paragraph (a) as a reference to subpart I of 15 CFR part 923,
    (2) by changing the reference to 15 CFR 932.6(b)(1) in paragraph 
(b) as a reference to Sec. 923.126(b)(1),
    (3) by changing the reference to subpart J of 15 CFR part 923 in 
paragraph (c) as a reference to subpart I of 15 CFR part 923, and
    (4) by changing the reference to 15 CFR 932.6(c)(2) in paragraph 
(e) as a reference to Sec. 923.126(c)(2).

PART 933--COASTAL ZONE MANAGEMENT RESEARCH AND TECHNICAL ASSISTANCE 
[REMOVED]

    21. Part 933 is removed.
* * * * *
[FR Doc. 96-5237 Filed 3-8-96; 8:45 am]
BILLING CODE 3510-08-M