[Federal Register Volume 64, Number 31 (Wednesday, February 17, 1999)]
[Proposed Rules]
[Pages 7837-7840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3864]


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DEPARTMENT OF THE INTERIOR

Minerals Management Service

30 CFR Part 250

RIN 1010-AC42


Coastal Zone Consistency Review of Exploration Plans and 
Development and Production Plans

AGENCY: Minerals Management Service (MMS), Interior.

ACTION: Notice of proposed rulemaking.

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SUMMARY: We propose to amend regulations that specify how States will 
review Exploration Plans (EP) and Development and Production Plans 
(DPP) for coastal zone consistency. The amended regulation would 
clarify that State coastal zone consistency review is accomplished 
under the authority of the National Oceanic and Atmospheric 
Administration (NOAA) regulations. In addition when MMS prepares a DPP 
environmental impact statement (EIS), we propose to give the draft EIS 
to those States requiring the draft EIS as necessary information to 
conduct the DPP consistency review.

DATES: We will consider all comments received by April 19, 1999. We 
will begin reviewing comments then and may not fully consider comments 
we receive after April 19, 1999.

ADDRESSES: If you wish to comment, you may mail or hand-carry written 
comments (three copies) to the Department of the Interior; Minerals 
Management Service; Mail Stop 4024; 381 Elden Street; Herndon, Virginia 
20170-4817; Attention: Rules Processing Team. Our practice is to make 
comments, including names and home addresses of respondents, available 
for public review during regular business hours. Individual respondents 
may request that we withhold their home address from the rulemaking 
record, which we will honor to the extent allowable by law. There may 
be circumstances in which we would withhold from the rulemaking record 
a respondent's identity, as allowable by the law. If you wish us to 
withhold your name and/or address, you must state this prominently at 
the beginning of your comment. However, we will not consider anonymous 
comments. We will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety.

FOR FURTHER INFORMATION CONTACT: Maureen Bornholdt, Environmental 
Assessment Branch, (703) 787-1600.

SUPPLEMENTARY INFORMATION: One main objective of this rulemaking is to 
correct discrepancies between MMS and NOAA regulations. Our current 
rules regarding Outer Continental Shelf (OCS) plan submission and 
approval were last revised in 1988. At that time, several statements 
concerning State coastal zone consistency reviews were placed in our 
regulations to alert lessees to the requirements that had to be met 
before activities associated with an EP or a DPP could be approved. 
Since 1988, it has become clear that some of these provisions 
conflicted with the NOAA rules governing State coastal zone consistency 
review of OCS plans. Thus, our regulations are being revised to comply 
with the NOAA requirements.
    Additionally, we believe it is in the interest of all parties for 
States to have the maximum amount of available information in 
evaluating the consistency certification by applicants for a DPP under 
the State's coastal management program and in making important CZM 
decisions. Accordingly when we prepare a DPP EIS, we propose to give 
the draft EIS to those States requiring the DPP EIS as necessary 
information that must be received before consistency review can begin.

Background

    Section 307(c)(3)(B) of the Coastal Zone Management Act (CZMA) 
requires that activities described in OCS plans be conducted in a 
manner consistent with enforceable policies of federally approved State 
Coastal Management Programs (CMP). Consequently, any person submitting 
an OCS plan to us must attach certificates of coastal zone consistency 
to the plan. Under section 307(c)(3)(B), Federal Agencies cannot grant 
any Federal licenses or permits for any activity in the OCS plan until:
    (1) The State receives a copy of the OCS plan, the consistency 
certification, and any other necessary data and information; and
    (2) The State concurs with, or is conclusively presumed to concur 
with, the consistency certification, or the Secretary of Commerce 
overrides the State's consistency objection.

[[Page 7838]]

    As documented in the CZMA, three items are required for State 
consistency review: the OCS plan, the consistency certification, and 
any necessary data and information. Because many State CMP's describe 
information requirements for assessing consistency, States are required 
to make copies of its CMP available to help applicants identify 
necessary data and information. Applicants are also encouraged to 
discuss consistency information needs with the State. In addition to 
using CMP information requirements for OCS plan review, NOAA has 
instructed States to use ``information received pursuant to the 
Department of the Interior's operating regulations governing (OCS) 
exploration, development and production'' to determine consistency (15 
CFR 930.77(a)). The State may ask for information in addition to that 
required by Sec. 930.77, but such requests do not extend the start of 
its consistency review (15 CFR 930.78). Consistency review begins when 
the State receives a copy of the OCS plan, consistency certification, 
and required necessary data and information (15 CFR 930.78).

Proposed Changes to Our Regulations

    One main objective in revising our regulations is to correct 
discrepancies between MMS and NOAA regulations. Specifically, the 
proposed revision at 30 CFR 250.203(f) replaces our directive to start 
consistency review upon receipt of the EP with the NOAA requirement to 
begin consistency review when the State receives the OCS plan, the 
lessee's consistency certification, and required necessary data and 
information (15 CFR 930.77). Also, we propose to add this NOAA 
reference on starting consistency review to the DPP regulations found 
at 30 CFR 250.204(i).
    Additionally, we are replacing the statement about the relationship 
between NEPA proceedings and State consistency review with one 
describing when we will forward a draft EIS to the State coastal zone 
management agency.
    In 1979, the Department of the Interior (DOI) expressed the view 
that delaying the CZMA consistency process until after a NEPA 
compliance document had been prepared would not be consistent with 
congressional intent. Specifically, in response to a comment suggesting 
a delay in the CZMA process when an EIS is needed for a DPP, the 1979 
preamble to the current rule stated:

    It is clear from the provisions of Section 25 of the Act that a 
State's coastal zone consistency review is independent of the 
National Environmental Policy Act review procedures, and the coastal 
zone consistency review should be completed within the timeframe 
specified in the Act and the implementing regulations. The 
Environmental Report is designed to provide all the information 
needed for the consistency review. To adopt the suggested procedure 
would result in a delay that is contrary to the intent of Congress.

44 Fed. Reg. 53686 (Sept. 14, 1979).
    DOI has reconsidered this position. First, as a matter of policy, 
19 years of OCS program experience under the old rule has led us to the 
judgment that the lack of an EIS in a State's review of a CZMA 
consistency certification has contributed to many State objections and 
a more contentious process than necessary in developing our nation's 
offshore natural gas and oil. Accordingly, we have determined to 
support, to the extent permitted by law, the States' efforts to obtain 
as much environmental information as is reasonably obtainable prior to 
making consistency decisions under the CZMA.
    Second, as a matter of law, NEPA, CZMA, and OCS Lands Act (OCSLA) 
do not expressly state their relationship to each other, and the 
relationship (or lack of relationship) among these statutes is not as 
clear as the preamble to the 1979 rulemaking asserts. The 1979 preamble 
statement relied upon certain statements in the legislative history, 
not the statutory text. See, e.g., H.R. REP. No. 590, 95th Cong., 2d 
Sess. 167, reprinted in 1978 U.S. CODE CONG. & ADMIN. NEWS 1572, 1573. 
While the CZMA, OCSLA, and NEPA processes have somewhat different time 
frames, we do not find in them any requirement to achieve compliance 
with the separate mandates of those statutes in any rigid order. The 
Secretary's general rulemaking authority in Section 5 of the OCSLA, 43 
U.S.C. 1334, provides him with considerable discretion to administer 
the OCS program. The Solicitor's Office advises that this authority 
gives the Secretary discretion to provide a more flexible approach to 
achieving that compliance. Thus, the Secretary may allow MMS to give a 
draft EIS to those States that require a draft EIS before starting DPP 
consistency review.
    Therefore, we propose to give the draft EIS to those States that 
require the DPP EIS as necessary information that must be received 
before consistency review can begin. Any delay in beginning the DPP 
consistency review until the draft EIS is available will not affect the 
mandated 60-day timeframe for our decision on the DPP. When a DPP EIS 
is prepared, the OCSLA requires that we approve, disapprove or require 
modification of the DPP 60 days after the release of the final EIS. 
Typically, there are about 8 to 9 months between the availability of 
the draft and final EIS's. We use this time period to solicit public 
comment (written and oral) on the draft EIS, respond to comments/make 
changes, and conduct internal reviews and other administrative matters 
associated with the EIS production. This time interval would allow the 
State sufficient time to complete its DPP consistency review (see chart 
below). Providing the State with the maximum available amount of 
information for the State to concur in the consistency certification by 
an applicant for a DPP, furthers DOI's efforts to maximize the amount 
of good science and analysis available to the States in making their 
important CZMA decisions, to design an OCS program based on consensus, 
not conflict, and to be good neighbors to the coastal States.
    We seek comments on this change of position and its potential 
impact on the OCSLA approval process and DPP applicants. We also seek 
comment on how this rule, once effective, should apply to pending DPP 
applications.

[[Page 7839]]

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Procedural Matters

Federalism (Executive Order (E.O.) 12612

    In accordance with E.O. 12612, the rule does not have significant 
Federalism implications. A Federalism assessment is not required.

Takings Implications Assessment (E.O. 12630)

    In accordance with E.O. 12630, the rule does not have significant 
Takings Implications. A Takings Implication Assessment is not required.

Regulatory Planning and Review (E.O. 12866)

    This document is not a significant rule and is not subject to 
review by the Office of Management and Budget under E.O. 12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    (3) This rule does not alter the budgetary effects or entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients.
    (4) This rule does not raise novel legal or policy issues.

Clarity of This Regulation

    E.O. 12866 requires each agency to write regulations that are easy 
to understand. We invite your comments on how to make this proposed 
rule easier to understand, including answers to questions such as the 
following:
    (1) Are the requirements in the rule clearly stated?
    (2) Does the rule contain technical language or jargon that 
interferes with its clarity?
    (3) Does the format of the rule (grouping and order of sections, 
use of headings, paragraphing, etc.) aid or reduce its clarity?
    (4) Would the rule be easier to understand if it were divided into 
more (but shorter) sections?
    (5) Is the description of the rule in the ``Supplementary 
Information'' section of this preamble helpful in understanding the 
rule? What else can we do to make the rule easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street, N.W., Washington, D.C. 
20240. You may also e-mail the comments to this address:

E[email protected]

Civil Justice Reform (E.O. 12988).

    In accordance with E.O. 12988, the Office of the Solicitor has 
determined that this rule does not unduly burden the judicial system 
and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

National Environmental Policy Act (NEPA)

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the NEPA of 1969 is not required.

Paperwork Reduction Act (PRA) of 1995

    The information collection requirements in the proposed amendment 
to the rule remain unchanged. The current information collection 
requirements of Subpart B, Exploration and Development and Production 
Plans, have been approved by OMB under 44 U.S.C. 3507 and assigned OMB 
control number 1010-0049.

Regulatory Flexibility Act

    The Department certifies that this document will not have a 
significant economic effect on a substantial number

[[Page 7840]]

of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.).
    The proposed revision to the rule will clarify, but not change, the 
requirements currently in place for OCS plan review and approval. The 
changes should make clear that NOAA regulations govern State coastal 
zone consistency review of OCS plans submitted to us. There will be no 
change to current procedures resulting from the proposed amendment to 
the rule. The Department has determined that these proposed changes to 
the rule will not have a significant effect on a substantial number of 
small entities. In general, most entities that engage in offshore 
activities are not considered small due to the technical and financial 
resources and experience necessary to safely conduct such activities. 
However, those lessees that are classified as small businesses will not 
be affected. The Department also determined that there are no indirect 
effects of this rulemaking on small entities that provide support for 
offshore activities. Small government entities, such as small local 
governments in an affected State's coastal zone, can participate in 
State coastal zone review and can request that the Regional Supervisor 
provide copies of plans. None of the proposed changes will affect this 
process.
    Your comments are important. The Small Business and Agriculture 
Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were 
established to receive comments from small business about Federal 
agency enforcement actions. The Ombudsman will annually evaluate the 
enforcement activities and rate each agency's responsiveness to small 
business. If you wish to comment on the enforcement actions of MMS, 
call toll-free (888) 734-3247.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under (5 U.S. C. 804(2)), SBREFA. 
This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or ability of U.S.-
based enterprises to compete with foreign-based enterprises.

Unfunded Mandate Reform Act of 1995

    This rule does not impose a unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

List of Subjects in 30 CFR Part 250

    Continental shelf, Environmental impact statements, Environmental 
protection, Government contracts, Incorporation by reference, 
Investigations, Mineral royalties, Oil and gas development and 
production, Oil and gas reserves, Penalties, Pipelines, Public lands--
mineral resources, Public lands--rights-of-way, Reporting and 
recordkeeping requirements, Sulphur development and production, Sulphur 
exploration, Surety bonds.

    Dated. February 9, 1999.
Sylvia V. Baca,
    Acting Assistant Secretary, Land and Minerals Management.
    For the reasons stated in the preamble, Minerals Management Service 
(MMS) proposes to amend 30 CFR part 250 as follows:

PART 250--OIL AND GAS AND SULPHUR OPERATIONS IN THE OUTER 
CONTINENTAL SHELF

    1. The authority citation for part 250 continues to read as 
follows:

    Authority: 43 U.S.C. 1334.

    2. In Sec. 250.203, paragraph (f) is revised to read as follows:


Sec. 250.203  Exploration Plan.

* * * * *
    (f) Within two working days after we deem the Exploration Plan 
submitted, the Regional Supervisor will send by receipted mail a copy 
of the plan (except those portions exempt from disclosure under the 
Freedom of Information Act and 43 CFR part 2) to the Governor or the 
Governor's designated representative and the CZM agency of each 
affected State. Consistency review begins when the State's CZM agency 
receives a copy of the plan, consistency certification, and required 
necessary data and information as directed by 15 CFR 930.78.
* * * * *
    3. In Sec. 250.204, paragraphs (i) and (j) are revised to read as 
follows:


Sec. 250.204  Development and Production Plan.

* * * * *
    (i) We will process the plan in accordance with this section and 15 
CFR part 930. Accordingly, consistency review begins when the State's 
CZM agency receives a copy of the plan, consistency certification, and 
required necessary data and information as directed by 15 CFR 930.78.
    (j) The Regional Supervisor will evaluate the environmental impact 
of the activities described in the Development and Production Plan 
(DPP) and prepare the appropriate environmental documentation required 
by the National Environmental Policy Act of 1969. At least once in each 
planning area (other than the western and central Gulf of Mexico 
planning areas), we will prepare an environmental impact statement 
(EIS) and send copies of the draft EIS to the Governor of each affected 
State and the executive of each affected local government that requests 
a copy. Additionally, when we prepare a DPP EIS and when the State's 
federally approved coastal management program requires a DPP EIS for 
use in determining consistency, we will forward a copy of the draft EIS 
to the State's CZM Agency. We will also make copies of the draft EIS 
available to any appropriate Federal Agency, interstate entity, and the 
public.
* * * * *
[FR Doc. 99-3864 Filed 2-16-99; 8:45 am]
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