[Federal Register Volume 64, Number 190 (Friday, October 1, 1999)]
[Rules and Regulations]
[Pages 53195-53200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25499]


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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: Final rule.

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SUMMARY: This final rule amends regulations that specify how States 
review Exploration Plans (EP) and Development and Production Plans 
(DPP) for coastal zone consistency. The amended regulation clarifies 
that a State coastal zone consistency review occurs under the authority 
of the National Oceanic and Atmospheric Administration (NOAA) 
regulations and that when MMS prepares a DPP environmental impact 
statement (EIS), we will give the draft EIS to those States requiring 
the draft EIS as necessary information to conduct a DPP consistency 
review.

EFFECTIVE DATE: The rule is effective on November 1, 1999.

FOR FURTHER INFORMATION CONTACT: Maureen Bornholdt, Environmental 
Assessment Branch, (703) 787-1656.

SUPPLEMENTARY INFORMATION: This rulemaking seeks to correct 
discrepancies between MMS and NOAA regulations. We last revised our 
current rules in 1988 for Outer Continental Shelf (OCS) plan submission 
and approval. At that time, several statements concerning State coastal 
zone consistency reviews were placed in our regulations alerting 
lessees to the requirements that had to be met before we could approve 
activities associated with an EP or a DPP. Since 1988, some of these 
provisions conflict with the NOAA rules governing State coastal zone 
consistency review of OCS plans. Thus, we are revising our regulations 
to conform with the NOAA requirements.
    Additionally, we believe it is in the interest of all parties for 
States to have the best available information in evaluating the 
consistency certification

[[Page 53196]]

by applicants for a DPP under the State's coastal management program 
and in making important coastal zone management (CZM) decisions. 
Accordingly, when we prepare a DPP EIS, we will give the draft EIS to 
those States requiring a DPP National Environmental Policy Act (NEPA) 
document as necessary information that the State must receive before 
consistency review can begin.

Background

    Section 307(c)(3)(B) of the Coastal Zone Management Act (CZMA) 
requires that lessees conduct activities described in OCS plans 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 include a certificate of ``coastal zone 
consistency,'' i.e., a certification that lessee activities are 
consistent with the enforceable policies of CMP. Under section 
307(c)(3)(B), Federal agencies cannot grant any Federal licenses or 
permits for any activity in the OCS plan until 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.
    The CZMA requires three items for State consistency review: the OCS 
plan, the consistency certification, and any necessary data and 
information. Because many State CMPs describe information requirements 
for assessing consistency, States must make copies of their CMP 
available to help applicants identify necessary data and information. 
NOAA also encourages applicants 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).

Changes to Our Regulations

    We are revising our rules to start consistency review upon receipt 
of the EP or DPP. This will comply with the NOAA requirement (15 CFR 
930.77) to begin consistency review when the State receives the OCS 
plan (the version that MMS deems submitted), the lessee's consistency 
certification, and required necessary data and information. We are 
adding this NOAA reference on starting consistency review to the 
regulations found at 30 CFR 250.203(f) and 250.204(i).
    Additionally, we are replacing the statement about the relationship 
between the NEPA process and the State consistency review with one 
describing when we will forward a draft EIS to the State CZM agency.
    In 1979, the Department of the Interior (DOI) expressed the view 
that delaying the CZMA consistency process until after preparation of a 
NEPA compliance document 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 for two reasons. First, 19 years 
of OCS program experience under the old rule have led us to conclude 
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 the best 
reasonably available environmental information before making 
consistency decisions under the CZMA.
    Second, as a matter of law, the 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 the 1978 U.S. CODE CONG. & ADMIN. 
NEWS 1572, 1573.) While the CZMA, OCSLA, and NEPA processes have 
somewhat different timeframes, 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 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 the DPP consistency review.
    Therefore, we will give the draft EIS to those States that require 
the DPP NEPA document 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, 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 EISs. 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 the 
chart following this paragraph). We want to make good science and 
analysis available for states to use in making CZMA decisions. We can 
further that effort by providing the State with the best available 
information in order to concur with an applicant's DPP consistency 
certification. It also helps us to base the OCS program on consensus, 
not conflict, and to be good neighbors to the coastal States.
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Comments on the Rule

    We received comments from nine groups including State Governments 
and the offshore petroleum industry:
 American Petroleum Institute
 State of California
     California Coastal Commission
     Resources Agency of California
 State of Florida
     Department of Community Affairs
     Office of the Governor
 Chevron U.S.A. Production Company
 State of North Carolina
     Department of Environmental and Natural Resources
 Phillips Petroleum Company
 Texaco Exploration and Production Inc.
    We considered the comments and have modified the final language as 
appropriate.

Comments and Responses

    In addition to the proposed changes in the regulations, we sought 
comment on whether to apply the proposed language to pending DPP 
applications. We decided not to apply the new rule retroactively. When 
we published the proposal, the only MMS-pending DPP application (Destin 
Dome 56 Unit Offshore Florida) had received a State consistency 
objection (February 1998). The applicant had filed its consistency 
appeal with the Secretary of Commerce in March 1998. The Department of 
Commerce (DOC) has begun to compile and review the record in this 
appeal. They have asked Federal agencies to submit comments for the 
record and have scheduled a public hearing in September 1999. The 
appeal's public record remains open until 30 days after the DOC public 
hearing. MMS will publish the DPP draft EIS while the appeal record is 
open, and we will forward a copy to DOC.
    Comment: Several commenters expressed concern that the proposed 
changes give the States up to 18 months, and perhaps longer, to 
complete their consistency review.
    Response: The CZMA controls and sets the deadlines and criteria for 
consistency review through NOAA's implementing regulations, not the MMS 
regulations. The NOAA consistency regulations set a 6-month deadline 
for the State's consistency decision:

    Concurrence by the State agency shall be conclusively presumed 
in the absence of a State agency objection to the consistency 
certification within six months following commencement of State 
agency review. (15 CFR 930.79(b))

    The NOAA consistency regulations determine when the CZMA clock 
starts:

    State agency review of the person's consistency certification 
begins at the time the State agency receives a copy of the OCS plan, 
consistency certification, and required necessary data and 
information. (15 CFR 930.78)

    The MMS regulations have incorporated the NOAA process in 30 CFR 
250.204(i)

    The [DPP] plan will be processed in accordance with the 
regulations in this section and the regulations governing Federal 
CZM consistency procedures (15 CFR part 930).

    The new rule does not alter the CZMA/NOAA time requirements for 
State consistency review.
    Comment: Several commenters were concerned that the proposal will 
cause delays in the OCS permitting and the consistency appeals process.
    Response: When MMS prepares a DPP EIS, OCSLA requires that we 
approve, disapprove, or require modification of the DPP 60 days after 
the release of the final EIS. The new rule will not affect the mandated 
60-day timeframe to issue our DPP decision. Regarding the comment about 
delaying the consistency appeals process, one of our objectives of the 
new rule is to decrease the number of State consistency objections 
based on insufficient information. NOAA regulations found at 15 CFR 930 
govern the consistency appeal process. The new rule does not alter and 
cannot change the NOAA appeal process. Providing the draft EIS to 
States amending their coastal program will ensure that those States

[[Page 53198]]

have a comprehensive analysis of the OCS plan's environmental impacts 
to use in making their consistency decisions. Indeed, allowing States 
to use the draft EIS' analysis may result in fewer consistency 
objections, associated consistency appeals, and attendant delays.
    Comment: Several commenters stated that the current process to 
collect information for State consistency review purposes is adequate.
    Response: The discretion for deciding what information is required 
to determine consistency lies with the affected State. The new rule 
will not change the current information collection process outlined in 
the NOAA consistency regulations. Instead, the rule informs States and 
OCS operators that MMS reconsidered the relationship between the NEPA 
process and State consistency reviews, and we will give the draft EIS 
to those States that require the DPP NEPA document as necessary 
information that the State must receive before consistency review can 
begin.
    Comment: A commenter suggested that we provide the States with all 
the comments on the draft EIS in addition to the draft EIS.
    Response: We did not incorporate this suggestion into the final 
rule. We will provide the State, upon request, a copy of the comments 
on the draft EIS. The purpose of supplying information is to help the 
State determine consistency through understanding how the proposed 
project could affect coastal resources and uses. The draft EIS is our 
primary source of environmental analytical information focusing on 
impacts of the OCS project on the human, marine, and coastal 
environments. The comments we receive on the draft EIS, while very 
useful, are a critique of the proposal and the draft EIS and not an 
environmental impact analysis. To obtain public comment on the OCS 
proposal, the NOAA regulations require the States to comply with 
certain public notice and comment requirements. Through those NOAA 
processes, the States can acquire public opinions/concerns about the 
OCS consistency review.
    Comment: A commenter suggested that we apply the same requirement 
to exploration plans.
    Response: Given that exploration activities are temporary and less 
complicated than those associated with a normally 30-year development 
and production project, the information and analysis requirements under 
NOAA consistency and MMS operating regulations provide the State with a 
sufficient basis on which to render a consistency decision. Therefore, 
the final rule does not apply the requirement to EPs.
    Comment: Several commenters stated that MMS should amend the 
proposal to apply to all States instead of letting the States decide 
what information is necessary for consistency review.
    Response: As part of our NEPA process, we provide the DPP draft EIS 
to all affected States and will continue to do so. However, our new 
rule does not create CZMA consistency-related obligations. The CZMA 
sets the criteria for consistency review through NOAA's implementing 
regulations. If a State wants to obtain more information (the draft 
EIS) before the consistency review starts, the State must comply with 
NOAA's consistency regulations--in this case that means listing the 
draft EIS as ``necessary data and information.'' The NOAA regulations 
do not require listing the draft EIS if the State simply wanted the 
draft EIS as ``supplemental'' information. Finally, some States may be 
satisfied with the information they receive and may not choose to 
require the draft EIS.
    Comment: A commenter stated that current MMS regulations prevent 
States from reviewing for consistency certain permits issued after a 
plan's approval and suggested that MMS include these permitted 
activities in either the OCS Plan or associated NEPA document making 
those activities available for consistency review.
    Response: NOAA's regulations preclude the States from reviewing 
permits associated with a plan that already received State consistency 
concurrence. The NOAA regulations state:

    If the State agency issues a concurrence or is conclusively 
presumed to concur with the person's consistency certification, the 
person will not be required to submit additional consistency 
certifications and supporting information for the State agency 
review at the time Federal applications are actually filed for the 
Federal licenses and permits to which such concurrence applies. (15 
CFR 930.80)

    The MMS regulations incorporate the NOAA exemption:

    * * *APD's must conform to the activities described in detail in 
the approved Exploration Plan and shall not be subject to a separate 
State coastal zone consistency review. (30 CFR 250.203(p))
    * * *All APD's and applications to install platforms and 
structures, pipelines, and production equipment must conform to the 
activities described in detail in the approved Development and 
Production Plan and shall not be subject to a separate State coastal 
zone consistency review. (30 CFR 250.204(t))

    Briefly, OCS plans include:

     the schedule for offshore activities (e.g., 
commencement and completion schedules, sequences for drilling wells 
and installing facilities, and date of first production).
     descriptions of any drilling vessels, platforms, 
pipelines, or other facilities/operations (including location, size, 
design, and safety and pollution-prevention features).
     supporting information, including descriptions of 
geological and geophysical data, air emissions, physical 
oceanography, onsite flora and fauna, and quality, and other uses of 
the area.

    States review OCS plans to determine whether proposed activities 
described in them will be conducted in a manner consistent with the 
enforceable policies of approved coastal management programs. We are 
prohibited from permitting OCS plan activities until the State concurs 
with or is presumed to concur with the plan's consistency 
certification. Because the OCS plan reviewed by the State for 
consistency includes a description of proposed permitted activities, 
the subsequently filed permits are already covered by the State's 
consistency review.
    Comment: A commenter suggested that Federal consistency 
determinations should be included at each stage of the NEPA process. 
States should be allowed to review for consistency each individual 
stage of the NEPA process, especially when significant changes are made 
to the project or analyses.
    Response: NEPA documents do not trigger a consistency review. NEPA 
documents analyze environmental impacts. They do not approve activities 
by either the Government or the lessees. Nor do they approve licenses 
or permits. However, MMS regulations provide that if the OCS plan 
changes substantially (e.g., significantly changes the impacts that 
were previously identified and evaluated; requires additional permits; 
or proposes activities not previously identified and evaluated) after 
the State's concurrence, the proposed revised OCS plan will be subject 
to State consistency review.
    Comment: A commenter expressed concern that delaying the State's 
consistency decision until later in the DPP process would not give MMS 
consistency-related information in a timely fashion and could result in 
considerable NEPA-related delays.
    Response: The new rule will not delay our NEPA process. Before we 
prepare an EIS, we conduct ``scoping.'' Scoping identifies the extent 
and significance of important environmental issues associated with a 
proposed Federal action. During scoping, we ask the public; local, 
State, and Federal agencies; and interested organizations or 
individuals to identify issues, resources,

[[Page 53199]]

impacts, and any alternatives to the proposed action that the EIS 
should address. Issues identified and ultimately analyzed in the impact 
statement typically include those covered by the State's coastal 
management program. We also include State CZM agencies in our scoping 
process.
    Comment: A commenter suggested that we clarify proposed language to 
be sure that the OCS plan the State receives to begin its consistency 
review is the version that MMS deems complete.
    Response: The new rule makes that change.
    Comment: A commenter suggested to change the language to require 
MMS to send the final EIS.
    Response: When MMS prepares a DPP EIS, OCSLA requires that we 
approve, disapprove, or require modification of the DPP 60 days after 
the release of the final EIS. State consistency review takes from 3 to 
6 months. Therefore, starting consistency review upon the release of 
the final EIS would violate the required deadline in OCSLA.

Procedural Matters

Federalism (Executive Order (E.O.) 12612)

    According to E.O. 12612, the rule does not have significant 
Federalism implications. A Federalism assessment is not required.

Takings Implications Assessment (E.O. 12630)

    According to 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. The rule simply clarifies the authority of NOAA 
regulations for State coastal zone consistency review. It also makes 
available to those States requiring it, a copy of the draft DPP EIS 
when MMS prepares one.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. There are 
no new requirements in this rule. The rule simply clarifies existing 
regulations.
    (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. The clarifications contained in the rule do not 
change existing regulations and therefore do not alter the budgetary 
effects, grants, user fees etc.
    (4) This rule does not raise novel legal or policy issues. The 
clarifications in the rule are based on the longstanding legal 
authority of the OCSLA, CZMA, NEPA and other laws. As previously stated 
it clarifies the authority of NOAA regulations.

Civil Justice Reform (E.O. 12988)

    According to 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 subpart B 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

    DOI certifies that this document will not have a significant 
economic effect on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
    The revision to the rule will clarify, but not change, the 
requirements currently in place for OCS plan review and approval. The 
changes 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 amendment to the rule. 
DOI has determined that these 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 conduct such activities safely. However, those 
lessees that are classified as small businesses will not be affected. 
DOI 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 (UMRA) of 1995

    This rule does not impose an 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 UMRA (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.

[[Page 53200]]

    Dated: September 3, 1999.
Sylvia V. Baca,
Assistant Secretary, Land and Minerals Management.
    For the reasons stated in the preamble, the Minerals Management 
Service amends 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 2 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 deemed submitted 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 according to this section and 15 CFR 
part 930. Accordingly, consistency review begins when the State's CZM 
agency receives a copy of the deemed submitted 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 NEPA 
document 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. 99-25499 Filed 9-30-99; 8:45 am]
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