[Federal Register Volume 65, Number 73 (Friday, April 14, 2000)]
[Proposed Rules]
[Pages 20270-20302]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-8982]



[[Page 20269]]

-----------------------------------------------------------------------

Part II





Department of Commerce





-----------------------------------------------------------------------



National Oceanic and Atmospheric Administration



-----------------------------------------------------------------------



15 CFR Part 930



Coastal Zone Management Act Federal Consistency Regulations; Proposed 
Rule

  Federal Register / Vol. 65, No. 73 / Friday, April 14, 2000 / 
Proposed Rules  

[[Page 20270]]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 930

[Docket No. 990723202-9202-01]
RIN 0648-AM88


Coastal Zone Management Act Federal Consistency Regulations

AGENCY: Office of Ocean and Coastal Resource Management (OCRM), 
National Ocean Service (NOS), National Oceanic and Atmospheric 
Administration (NOAA), Department of Commerce (DOC).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is 
proposing to revise the federal consistency regulations under the 
Coastal Zone Management Act of 1972 (CZMA). The Coastal Zone Act 
Reauthorization Amendments of 1990, enacted November 5, 1990, as well 
as the Coastal Zone Protection Act of 1996, enacted June 3, 1996, 
amended and reauthorized the CZMA. Among the amendments were revisions 
to the federal consistency requirement contained in section 307 of the 
CZMA. Current federal consistency regulations were promulgated in 1979 
and are in need of revision after 18 years of implementation. The 
purpose of this proposed rule is to make these revisions and to codify 
the 1990 and 1996 statutory changes to section 307.

DATES: Comments on the proposed rule are invited and will be considered 
if submitted on or before May 30, 2000.

ADDRESSES: All comments concerning these proposed regulations should be 
mailed to: Joseph A. Uravitch, Chief, Coastal Programs Division, Office 
of Ocean and Coastal Resource Management (N/ORM3), 1305 East-West 
Highway, 11th Floor, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: David W. Kaiser, Federal Consistency 
Coordinator, Office of Ocean and Coastal Resource Management (N/ORM3), 
1305 East-West Highway, 11th Floor, Silver Spring, MD 20910. Telephone: 
301-713-3098, extension 144.

SUPPLEMENTARY INFORMATION:

I. Authority

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

II. Background

    The CZMA was enacted to develop a national coastal management 
program that comprehensively manages and balances competing uses of and 
impacts to any coastal use or resource. The national coastal management 
program is implemented by individual state coastal management programs 
in partnership with the Federal Government. The CZMA federal 
consistency requirement, 16 USC 1456, requires that Federal agency 
activities be consistent to the maximum extent practicable with the 
enforceable policies of a state's coastal management program. The 
federal consistency requirement also requires that indirect federal 
activities (i.e., non-federal activities requiring federal permits, 
licenses or financial assistance activities) be fully consistent with a 
state's federally approved coastal management program. The federal 
consistency requirement is an important mechanism to address coastal 
effects, to ensure adequate federal consideration of state coastal 
management programs, and to avoid conflicts between states and Federal 
agencies by fostering early consultation and coordination.
    Congress strongly re-emphasized the importance of consistency in 
the CZMA amendments of 1990 and specifically endorsed long-standing 
requirements of the CZMA consistency regulations. Thus, in making 
proposed regulatory changes NOAA has been careful to adhere to 
statutory requirements and has given deference to the long-standing 
consistency provisions that are consistent with new statutory 
requirements. The implementation of consistency by the states and 
federal agencies and guidance by NOAA, especially in the past few 
years, for the most part has been based on reasonableness, objectivity, 
collaboration and cooperation. The strength of revised regulations and 
state-federal interaction needs to further these goals and be solidly 
grounded in the statute and long-standing usage. With that in mind, 
aside from the proposed revisions required by the changes to the CZMA, 
it is not NOAA's intent to fundamentally change or ``weaken'' the 
consistency requirement. NOAA's intent is to clarify certain sections, 
provide additional guidance where needed, and provide states and 
federal agencies with greater flexibility for federal-state 
coordination and cooperation. Hopefully, the spirit of objective, 
collaborative, open and amicable interaction with the coastal states, 
federal agencies and NOAA will continue.

III. Coastal Zone Act Reauthorization Amendments of 1990

    This proposed rule codifies changes made to section 307 of the CZMA 
in 1990. The Coastal Zone Act Reauthorization Amendments of 1990 
(CZARA) (Pub. L. 101-508) amended the CZMA to clarify that the federal 
consistency requirement applies when any federal activity, regardless 
of location, affects any land or water use or natural resource of the 
coastal zone. This new ``effects'' language was added by the CZARA to 
replace previous language that referred to activities ``directly 
affecting the coastal zone,'' establishing:

    a generally applicable rule of law that any federal agency 
activity (regardless of its location) is subject to [the consistency 
requirement] if it will affect any natural resources, land uses, or 
water uses in the coastal zone. No federal agency activities are 
categorically exempt from this requirement.

H.R. Conf. Rep. No. 964, 101st Cong., 2d Sess. 968-975, 970 
(hereinafter Conference Report). The focus of the Federal agency's 
evaluation should be on coastal effects, not on the nature of the 
activity. The Conference Report provides further clarification on the 
scope of the effects test:

    The question of whether a specific federal agency activity may 
affect any natural resource, land use, or water use in the coastal 
zone is determined by the federal agency. The conferees intend this 
determination to include effects in the coastal zone which the 
federal agency may reasonably anticipate as a result of its action, 
including cumulative and secondary effects. Therefore, the term 
``affecting'' is to be construed broadly, including direct effects 
which are caused by the activity and occur at the same time and 
place, and indirect effects which may be caused by the activity and 
are later in time or farther removed in distance, but are still 
reasonably foreseeable.

Id. at 970-71. These changes reflect an unambiguous Congressional 
intent that all Federal agency activities meeting the ``effects'' test 
are subject to the CZMA consistency requirement; that there are no 
exceptions or exclusions from the requirement as a matter of law; and 
that the ``uniform threshold standard'' requires a factual 
determination, based on the effects of such activities on the coastal 
zone, to be applied on a case-by-case basis. Id. at 970-71; 136 Cong. 
Rec. H 8076 (Sep. 26, 1990).
    Other changes made to the CZMA by the CZARA include the addition of 
section 307(c)(1)(B) which, under certain circumstances, authorizes the 
President to exempt a specific Federal agency activity if the President 
determines that the activity is in the paramount interest of the United 
States.

[[Page 20271]]

This section does not require implementing regulations. The CZARA also 
makes clear the requirement that Federal agency activities and federal 
license or permit and federal assistance activities must be consistent 
with the enforceable policies of state coastal management programs. 
Finally, the CZARA made technical and conforming changes to the other 
existing federal consistency requirements of CZMA sections 307(c)(3) 
(A) and (B), and 307(d) for the purpose of conforming these existing 
sections with changes made to section 307(c)(1).

IV. CZARA and Secretary of the Interior v. California, 464 U.S. 312 
(1984)

    In 1984, the Supreme Court held that outer continental shelf (OCS) 
oil and gas lease sales by the Department of the Interior's Minerals 
Management Service were not activities subject to the CZMA consistency 
requirement as the lease sales did not directly affect the coastal 
zone. Secretary of the Interior v. California, 464 U.S. 312 (1984). In 
amending the CZMA federal consistency section in 1990, Congress 
overturned the effect of the decision in Secretary of the Interior and 
made it clear that OCS oil and gas lease sales are subject to the 
consistency requirement. Conference Report at 970. Congress also 
intended this change to clarify that other federal activities (in or 
outside the coastal zone) in addition to OCS oil and gas lease sales 
are subject to the federal consistency requirement. The remainder of 
the consistency discussion in the Conference Report makes this clear as 
does similar discussion in the Congressional Record, 136 Cong. Rec. 
H8068 (Sep. 26, 1990) [hereinafter Congressional Record] (incorporated 
into the Conference Report, see Conference Report at 975).
    Changes to the consistency section clarify that any federal 
activity is subject to the consistency requirement (regardless of 
location) if coastal effects are reasonably foreseeable, and that there 
are no categorical exemptions. Conference Report at 970. The discussion 
in the Conference Report on whether to list other federal activities 
that are subject to the consistency requirement, e.g., activities under 
the Ocean Dumping Act, further clarifies that no federal activities are 
categorically exempt and that the determination of whether consistency 
applies is a case-by-case analysis based on reasonably foreseeable 
effects on any coastal use or resource. See Conference Report at 971.
    The Congressional Record sheds further light on the intent and the 
scope of Congress' rejection of Secretary of the Interior. Congress not 
only rejected Secretary of the Interior, but eliminated the ``'shadow 
effect'' of the Court's decision (i.e., its potentially erosive effect 
on the application of the federal consistency requirements to other 
federal agency activities) * * * and also to dispel any doubt as to the 
applicability of this requirement to all federal agency activities that 
meet the standard [i.e., the effects test] for review.'' Congressional 
Record at H8076.
    Thus, the application of the consistency requirement is not 
dependent on the type of activity or what form the activity takes 
(e.g., rulemaking, regulation, physical alteration, plan). Consistency 
applies whenever a federal activity initiates a series of events where 
coastal effects are reasonably foreseeable. See H.R. Rep. No. 1012, 
96th Cong., 2d Sess. at 4382. The CZMA, the Conference Report, and NOAA 
regulations are specifically written to cover a wide range of federal 
functions. The only test for whether a Federal agency function is a 
federal activity subject to the consistency requirement is an effects 
test. Whether a particular federal action affects the coastal zone is a 
factual determination.

V. Coastal Zone Protection Act of 1996

    On June 3, 1996, the President signed into law the Coastal Zone 
Protection Act of 1996 (CZPA), Pub. L. No. 104-150. Section 8 of the 
CZPA addresses the Secretarial override process whereby the Secretary 
of Commerce may override a state's consistency objection to a federal 
permit, license or funded project. Specifically, CZPA section 8 
provides that the Secretary shall publish a notice in the Federal 
Register indicating when the decision record in a consistency appeal 
has closed. No later than 90 days after the date of publication of this 
notice, the Secretary shall issue a final decision or publish another 
notice in the Federal Register detailing why the decision cannot be 
issued within the 90-day period. In the latter case, the Secretary 
shall issue a decision no later than 45 days after the date of the 
publication of the notice. This proposed rule makes conforming changes 
in the Secretarial override regulations contained in subpart H of part 
930.

VI. Purpose of This Proposed Rulemaking

    The purpose of this proposed rule is to codify the 1990 and 1996 
statutory changes to section 307 of the CZMA, and to update the federal 
consistency regulations after 18 years of implementation by NOAA, 
states and Federal agencies. This proposed rule is also the result of a 
two year informal effort by NOAA to work with Federal agencies, state 
coastal management programs and other interested parties to identify 
issues and obtain comments on draft proposed revisions to the 
regulations. Thus, this proposed rule has already undergone substantial 
review by Federal agencies, states and other interested parties.

VII. Section-by-Section Discussion of Proposed Changes

    Throughout part 930 NOAA proposes to make a number of minor 
revisions, as well as a number of revisions that will implement the 
CZARA and the CZPA. The minor revisions include changes that will 
update the regulations and make them easier to use. The following is a 
section-specific discussion of some of these proposed changes, as well 
as proposed changes that will implement the CZARA and the CZPA. Because 
of the number of changes to the consistency regulations, the federal 
consistency regulations are being issued in this Federal Register 
notice in its entirety.
    The following terms are defined for the purpose of this preamble:
    The term ``management program'' means the objectives, policies and 
other requirements of a state coastal management program that has been 
federally approved by NOAA, pursuant to CZMA section 306.
    The ``State agency'' is the designated federal consistency agency 
for a particular state management program.
    The term ``consistency determination'' means the determination 
provided by a Federal agency to a State agency for a federal activity 
under CZMA section 307(c)(1) that the Federal agency determines will 
have reasonably foreseeable effects on any land or water use or natural 
resource of a state's coastal zone (such effects are also referred to 
as ``coastal effects'' or ``effects on any coastal use or resource'').
    The term ``negative determination'' means the determination 
provided by a Federal agency to a State agency for a federal activity 
under CZMA section 307(c)(1) that the Federal agency determines will 
not have reasonably foreseeable coastal effects.
    The term ``consistency certification'' means the certification 
provided by an applicant for a federal approval under CZMA section 
(c)(3) or a state agency's or local government's certification under 
CZMA section 307(d).
    The term ``concurrence'' means a State agency's approval of a 
consistency determination, negative determination, or consistency 
certification.

[[Page 20272]]

    The term ``objection'' means a State agency's disagreement/
disapproval of a consistency determination, negative determination, or 
consistency certification.
    The term ``enforceable policy'' means a policy that is legally 
binding under state law and is part of a state's management program.
    The term ``maximum extent practicable'' means that Federal agencies 
must conduct their activities under CZMA section 307(c)(1) in a manner 
that is fully consistent with the enforceable policies of a state's 
management program, unless prohibited from full consistency by the 
requirements of federal law applicable to the activity.

Subpart A--General Information

    Minor changes are proposed to clarify that the obligations imposed 
by the regulations are for states as well as for Federal agencies and 
other parties, and to clarify that the purpose of the regulations is to 
address both the need to ensure consistency of federal actions 
affecting any coastal use or resource with approved coastal management 
programs and the importance of federal programs. Changes are proposed 
to encourage states and Federal agencies to coordinate as early as 
possible, and to allow states and Federal agencies to mutually agree to 
consistency procedures different from those contained in the 
regulations (providing that public participation requirements are still 
met and that all relevant state coastal management program enforceable 
policies are considered). Proposed minor editorial changes are not 
individually identified in the section-by-section analysis.
    Sections 930.1(h) and (i) are proposed to be removed. See below 
under sections 930.132-134, and subpart I.
    Section 930.2 would codify the requirement for public participation 
for all types of consistency reviews which was added by CZARA, 16 
U.S.C. 1455(d)(14) (CZMA Sec. 306(d)(14)).
    Section 930.3 was formerly located at section 930.145.
    Section 930.4 would clarify the use by State agencies of 
conditional concurrences. The Act's consistency requirements impose a 
definite time by which a Federal agency or an applicant for a federal 
approval or financial assistance (and the approving Federal agency) 
know if the State agency has concurred with a proposed activity, and 
whether the federal approval or funding may be issued. Conditions of 
concurrence should not replace state objections and the identification 
of alternatives for activities that the State agency finds are 
inconsistent with its management program. Since conditional 
concurrences could seriously weaken the state leverage granted by the 
CZMA consistency requirement, the proposed rules would only allow 
conditional concurrences pursuant to the following criteria: (1) 
Conditions must be based on specific enforceable policies, (2) the 
applicant must amend its federal application, and (3) the Federal 
agency approves the application as amended with the state conditions. 
If all of these requirements are not met, then the conditional 
concurrence is an objection.
    Section 930.5 would be added to clarify that the mediation and 
negotiation sections of the regulations do not preclude other state 
enforcement actions where the state has jurisdiction or believes it is 
necessary to take enforcement or judicial action.
    Section 930.6 would move the non-definitional parts of 
Sec. 930.11(o) (formerly Sec. 930.18) to a section describing the 
responsibilities of the State agency. Section 930.6(a) would 
acknowledge that a state may have two separate coastal management 
programs (for distinct regions) and thus, two separate federal 
consistency agencies. Currently, California has two programs (the 
California Coastal Commission and the San Francisco Bay Conservation 
and Development Commission).
    Section 930.6(b) would be revised to simplify consistency 
terminology. At present, different terms are used to describe state 
responses for Federal agency activities (``agreement or disagreement'') 
and federal license or permit activities (``objection or 
concurrence''). As proposed, a state would either object to or concur 
with a consistency determination or a consistency certification.
    Section 930.6(c) would be added to clarify the role of the single 
State agency for coordinating federal actions and the State agency's 
responsibility to apply all relevant enforceable policies when 
conducting consistency reviews. The requirement that a single State 
agency ensure that all relevant enforceable policies are considered 
under state federal consistency reviews is derived from CZMA section 
307 and various sections of NOAA's regulations. The CZMA requires 
compliance with all relevant enforceable policies of a ``management 
program'' and not a subset thereof. See, e.g., CZMA Secs. 307(c)(3)(A), 
304(12). A major criterion for coastal management program approval is a 
determination that state agencies responsible for implementing the 
coastal management program do so in conformance with the policies of 
the management program. 15 CFR 923.40(b). See also 15 CFR 923.41(b)(2). 
Networked state coastal management programs must also demonstrate that 
coastal management program authorities implement the full range of 
policies. 15 CFR 923.43(c). The federal consistency regulations mirror 
the requirement for the application of enforceable policies in a 
comprehensive manner.

Subpart B--General Definitions

    The definitions have been re-designated to reduce the total number 
of regulation sections. There is now just a section 930.10 for the 
index and a section 930.11(a) through (o) for the definitions contained 
in subpart B.
    Section 930.11(d) would be amended to clarify that associated 
facilities are indispensable parts of the proposed federal action. A 
variant of the proposed addition was previously a comment to the 1979 
regulations. 44 FR 37145. This addition ensures that the State agency 
would have sufficient information to fulfill its coastal planning and 
management responsibilities, and the proponent of the federal action 
would not be faced with the situation where there has been receipt of 
State agency approval regarding one element of the project with later 
objection to an associated facility which was not earlier reviewed with 
the remainder of the proposal.
    Sections 930.11(b) and (g) would define ``any coastal use or 
resource'' and ``effect on any coastal use or resource,'' respectively. 
These proposed terms are not intended to alter the statutory 
requirement which refers to any land or water use or natural resource 
of the coastal zone. These terms are merely a simpler description of 
the statutory requirement. The definition for coastal uses and 
resources is derived primarily from CZMA Section 304 (coastal resources 
of national significance are defined in CZMA Section 304(2)). Not all 
coastal uses or resources can be added. The list is not exclusive, but 
is meant to highlight the more common uses or resources. The term 
``minerals'' has been added to include both surface and subsurface 
mineral resources. Aesthetics and scenic qualities are not natural 
resources, but are enjoyment or use of natural resources. These 
concepts have been added to the definition of coastal use. Land has 
been added to natural resource. A sentence has also been added to 
include coastal uses and resources detailed in a state's management 
program. Resource creation or restoration projects has been added as a 
coastal use. This will include tidal and nontidal restoration and 
creation projects. Air and invertebrates have

[[Page 20273]]

been added as natural resources. Since historic and cultural resources 
are important coastal resources under the CZMA (see sections 302(e), 
303(2) and 303(2)(F)), the protection of historic and cultural 
resources of the coastal zone is included in the examples of coastal 
uses. Coastal effects are to be construed broadly and include 
reasonably foreseeable and cumulative and secondary effects. See 
Conference Report at 970-71. Whether consistency applies is not 
dependent on the type of federal activity, but on reasonably 
foreseeable coastal effects. For example, a planning document or 
regulation prepared by a Federal agency would be subject to the federal 
consistency requirement if coastal effects from those activities are 
reasonably foreseeable.
    Again, the application of consistency is not limited by the 
geographic location of a federal action; consistency applies if there 
are reasonably foreseeable coastal effects resulting from the activity. 
A federal action occurring outside the coastal zone may cause effects 
felt within the coastal zone (regardless as to the location of the 
affected coastal use or resource). For example, a state's fishing or 
whale watching industry (which are coastal uses) could be affected by 
federal actions occurring outside the coastal zone. Thus, the effect on 
a resource or use while that resource or use is outside of the coastal 
zone could result in effects felt within the coastal zone. However, it 
is possible that a federal action could temporarily affect a coastal 
resource while that resource is outside of the coastal zone, e.g., 
temporary harassment of a marine mammal, such that resource impacts are 
not felt within the coastal zone. As stated above, the coastal effects 
test is a fact-specific inquiry. NOAA is not further defining 
``reasonably foreseeable.'' Congress envisioned that federal-state 
coordination through consistency would be interactive. Thus, the 
application of consistency, the varied state coastal management 
programs, the analysis of effects, and the case-by-case nature of 
federal consistency precludes fast and hard definitions of effects and 
what is reasonably foreseeable.
    Section 930.11(h) would be added to define enforceable policy by 
reference to CZMA Sec. 304(6a), and to clarify that an enforceable 
policy must be sufficiently comprehensive and specific to control 
coastal uses while not necessarily inflexibly committing the state to a 
particular path. See American Petroleum Institute v. Knecht, 456 F. 
Supp. 889, 919 (C.D. Cal. 1978), aff'd, 609 F.2d 1306 (9th Cir. 1979); 
15 CFR 923.40(a); Conference Report at 972.

Subpart C--Consistency for Federal Agency Activities

    Throughout the proposed regulations the phrase ``directly affecting 
the coastal zone'' has been changed to read ``affecting any coastal use 
or resource.'' This codifies changes made to the CZMA by CZARA and 
includes reasonably foreseeable effects on any land or water use or 
natural resource of the coastal zone.
    In section 930.30 NOAA proposes to delete ``conducted or 
supported'' to conform this section with changes made by CZARA. In 
addition the title of subpart C and throughout subpart C, the term 
``Federal activity'' is changed to ``Federal agency activity'' to avoid 
confusion with federal activities under subparts D, E, and F. The 
phrase Federal agency activity is taken directly from the CZMA.
    NOAA proposes to amend section 930.31(a) to further describe the 
scope of the federal consistency effects test by clarifying the term 
``functions.'' This language is derived from the CZMA's legislative 
history.
    Section 930.31(d) would be added to clarify that CZMA section 
307(c)(1) is a residual category. Federal actions that do not fall into 
subparts D, E, or F are Federal agency activities. CZMA section 
307(c)(1)(A); see 44 FR 37146.
    Section 930.31(e) would address the hybrid nature of general permit 
programs developed by Federal agencies. This occurs when a Federal 
agency proposes to replace the need for an applicant to obtain an 
individual permit with a general set of requirements which, if met by 
the applicant, would allow the applicant to proceed with the activity 
without a case-by-case approval by the Federal agency. Two examples are 
the Corps' Nation-wide Permit (NWP) program under the Clean Water Act 
section 404 and the Environmental Protection Agency's (EPA's) general 
National Pollutant Discharge Elimination System (NPDES) permits for 
discharges from OCS oil and gas facilities. The development of the 
general permit program is best thought of as a Federal agency activity. 
Even though a general permit will authorize license or permit 
activities, the development of the federal requirements is an action by 
a Federal agency, not an applicant. Moreover, there is not a discreet 
federal or license permit activity to review and there is not an 
applicant. Neither the statute nor the regulations contemplated the 
hybrid nature of general permits. CZMA section 307(c)(1)(A) does 
provide that a Federal agency is subject to section 307(c)(1) unless it 
is subject to paragraph (2) or (3) (license or permit activities). 
However, this does not resolve the matter since Sec. 307(c)(3) does not 
imply or anticipate a situation where a Federal agency is an applicant 
for its own approval and for general permits, the Federal agency is not 
actually undertaking the license or permit activity covered by the 
general permit. Federal agencies may of course choose to subject their 
general permit programs to CZMA section 307(c)(3)(A).
    NOAA proposes amending section 930.32 to clarify the consistent to 
the maximum extent practicable standard. NOAA proposes to divide 
section 930.32(a) into 3 subsections. Subsections (1) and (2) are the 
existing regulations and subsection (3) is new. Minor changes are 
proposed for Sec. 930.32(a)(1) and the last sentence in (a)(1) is moved 
to the end of (a)(2). These changes are made for clarity and brevity; 
there are no substantive changes in subsections (a) (1) and (2). The 
term ``discretion'' as included in the existing regulations and 
retained in the revised regulations means that the more discretion a 
Federal agency has under its legal requirements, the more the Federal 
agency must be consistent with the state's enforceable policies. In 
subsection (a)(2), NOAA proposes to delete the term ``supplemental'' 
since the CZMA requires that a state's enforceable policies are 
requirements, not supplemental requirements. Also, supplemental is 
somewhat redundant with the rest of the sentence.
    Section 930.32(a)(3) would clarify the effect of federal 
appropriations law on the consistent to the maximum extent practicable 
standard. A general lack of funding cannot be a reason to conduct a 
federal activity that is not consistent with state management program 
enforceable policies. In order for federal law to prohibit Federal 
agencies from being consistent there must be specific limitations in 
federal acts. Problems arise if Federal agencies were to use dollar 
amounts specified in appropriations acts as part of the consistent to 
the maximum extent practicable equation. These problems are: (1) The 
CZMA Presidential exemption includes the only express exemption due to 
lack of appropriations; (2) appropriations acts often provide little 
guidance as to how funds are to be used; and (3) state enforceable 
policies are substantive requirements to be adhered to. State coastal 
management program enforceable policies are, in most cases, in place 
long before the planning of many federal projects and in advance of 
budgeting for annual appropriations. A Federal agency cannot avoid any 
state

[[Page 20274]]

requirement that it finds burdensome simply by not funding the required 
action. Advance planning and early coordination can help alleviate 
these concerns. If Federal agencies know what the state's enforceable 
policies are then costs can be factored into an agency's planning. 
Also, just as Federal agencies cannot avoid other federal and state law 
requirements (e.g., under the Clean Water or Air Acts, NEPA) due to 
funding constraints, they cannot avoid state enforceable policies. 
State enforceable policies are developed pursuant to the CZMA, approved 
by the federal government, and applicable to Federal agencies through 
the CZMA federal consistency requirement.
    Section 930.32(b) would be revised to clarify that in unforeseen 
cases, such as an emergency, the Federal agency must still adhere to 
the consistency requirements, to the extent that exigent circumstances 
allow. For example, a Federal agency, responding to an emergency, must 
still provide a consistency determination to the State agency, if time 
allows. If the time frame for responding to an emergency is too short 
for a consistency determination, the Federal agency should coordinate 
with the State agency to the extent possible. To avoid uncertainty in 
these instances, the Federal agency and State agency may mutually agree 
to emergency response planning prior to an actual emergency, or develop 
expedited procedures or a general review for reasonably foreseeable 
emergency situations and activities. The phrase ``exigent 
circumstances'' is used for emergency actions since many agencies 
respond to emergencies, but they may not be mandated by law to respond 
within a certain time frame. Thus, their rapid response is determined 
by the emergency, not their discretionary authority.
    Section 930.32(c) would address national security activities that 
are ``classified.'' The 1990 changes to the CZMA make it clear that all 
federal activities are subject to the consistency requirement. Thus, a 
classified activity that will affect coastal uses or resources is 
subject to the consistency requirement unless exempted by the President 
under CZMA section 307(c)(1)(B)). However, under the consistent to the 
maximum extent practicable standard, the Federal agency need only 
provide project information that it is legally permitted to release. 
Despite the fact that a Federal agency may not be able to disclose 
certain project information, the Federal agency must still conduct the 
classified activity consistent to the maximum extent practicable with 
the state management program. Concerned state management programs may 
want to consider developing general consistency agreements with 
relevant Federal agencies for classified activities. The definition of 
``classified'' is adopted from the Freedom of Information Act. 
Classified information should protect from disclosure national security 
information concerning the national defense or foreign policy, provided 
that it has been properly classified in accordance with the substantive 
and procedural requirements of an executive order. As of October 14, 
1995, the executive order in effect is E.O. 12,958, 3 CFR 333, 
reprinted in 50 U.S.C. 435 note (1994). Generally, it is preferable, 
however, not to identify the particular executive order in the 
regulations, because it may be supplanted by a new order under a new 
administration and courts have held that agencies should always apply 
the executive order in effect at the time the classified determination 
is made--i.e., an agency does not have to go back through all of its 
old secrets and reclassify them pursuant to the latest executive order.
    Section 930.33(a)(1) would clarify that effects on any coastal use 
or resource are not limited to environmental effects and that a review 
of relevant state coastal management program enforceable policies is 
necessary to determine whether the activity will affect any coastal use 
or resource.
    Section 930.33(a)(2) would clarify when federal consistency does 
not apply to a Federal agency activity. If there are no effects on any 
coastal use or resource and a negative determination is not required, 
then the Federal agency need not provide anything to the state.
    Section 930.33(a)(3) would provide a process whereby State agencies 
and Federal agencies can more efficiently address ``de minimis'' 
activities. De minimis activities cannot be unilaterally excluded from 
the federal consistency requirement. As the court noted in Envtl. 
Defense Fund v. Envtl. Protection Agency, 82 F.3d 451 (D.C. Cir. 1996), 
modified by 92 F.3d 1209 (D.C. Cir. 1996), ``[t]he ability to create a 
de minimis exemption is not an ability to depart from the statute, but 
rather a tool to be used in implementing the legislative design. * * * 
Of course, * * * a de minimis exemption cannot stand if it is contrary 
to the express terms of the statute.'' The express terms of the CZMA 
are that consistency applies to ``each'' federal activity ``affecting'' 
``any'' coastal use or resource. Neither the CZMA nor the Conference 
Report specifically authorize a unilateral de minimis exception. 
Further, Congress amended the CZMA in 1990 to specifically guard 
against Federal agencies exempting their activities. Thus, any attempt 
to address de minimis activities must be done cautiously. Also, many 
states are concerned with the cumulative effect of seemingly de minimis 
activities. NOAA believes, however, that the CZMA allows states and 
Federal agencies to mutually agree to address de minimis activities in 
a flexible manner. The proposed revisions do not provide detailed 
definitions of de minimis activities. Rather, NOAA proposes some 
general guidelines and then leaves it to the Federal agency and states 
to agree as to what is de minimis. NOAA is not requiring a State agency 
to provide for public participation for agreements between a State 
agency and a Federal agency regarding de minimis activities. An 
agreement between a State agency and a Federal agency to exclude de 
minimis activities is not a consistency determination. (If a State 
agency and Federal agency agree to address de minimis activities 
through a general determination public participation would be 
required.) Individual states may of course provide for public 
participation.
    Section 930.33(a)(4) would allow State agencies and federal 
agencies to mutually agree to exclude environmentally beneficial 
activities from further State agency review.
    Section 930.33(c)(2) would be removed. Outer continental shelf 
(OCS) oil and gas lease sales are Federal agency activities and are 
subject to the CZMA consistency requirement. See Sections III and IV of 
this proposed rule. Likewise, pre-lease sale activities are also 
subject to the consistency requirement if coastal effects are 
reasonably foreseeable. See 44 FR 37154 (comment to Sec. 930.71); 
Letter from Leon Ulman, Deputy Assistant Attorney General, Office of 
Legal Counsel, U.S. Dept. of Justice, to C.L. Haslam, General Counsel, 
U.S. Dept. of Commerce and Leo M. Krulitz, Solicitor, U.S. Dept. of the 
Interior (Apr. 20, 1979).
    Section 930.33(d) would further clarify the CZMA federal 
consistency ``effects test.'' Early federal-state coordination is 
emphasized to reduce conflict, build public support, provide a smooth 
and expeditious federal consistency review, and to help Federal 
agencies avoid costly last minute changes to projects in order to 
comply with state coastal management program enforceable policies. The 
earlier the coordination, the less likely it is that conflict will 
arise. Early coordination also enables a Federal agency to address 
coastal management concerns while the

[[Page 20275]]

agency still has the discretion to alter the activity and before 
substantial resources have been expended.
    Section 930.34 would be removed and its contents moved to new 
section 930.34 and to section 930.36 on consistency determinations.
    Section 930.34(a)(2) would encourage Federal agencies and State 
agencies to use existing procedures to coordinate consistency reviews. 
However, for permit requirements in state coastal management programs 
that are not required of Federal agencies by federal law other than the 
CZMA, the Federal agency may submit the necessary information in any 
manner it chooses so long as the requirements of this subpart are 
satisfied. NOAA has encouraged the practice of state coastal management 
programs using state permitting procedures as an administrative 
convenience to process Federal agency consistency determinations under 
sections 307(c)(1) and (2). This results in efficient state consistency 
reviews by taking advantage of existing review procedures otherwise 
applicable to permitting actions. This new section is based on a 
comment in the original 1979 regulations, 44 FR 37147.
    Section 930.34(b) would be moved to section 930.36(b) and amended 
to clarify that the Federal agency must provide a consistency 
determination to the state while the Federal agency still has the 
ability to alter the activity to address state coastal management 
policies.
    Sections 930.34(b)(2) and (c) would be deleted, with parts of these 
sections moved to new section 930.34(c). These sections are confusing 
and are not needed, since the listing provision for Federal agency 
activities is a recommendation and not a requirement and Federal 
agencies must provide a consistency determination to applicable states 
for activities with coastal effects regardless as to whether the state 
has listed the activity.
    Section 930.34(d) would encourage Federal agencies to seek 
assistance from the State agency in its determination of effects and 
consistency. At a minimum, State agencies must be able to provide 
Federal agencies with the applicable enforceable policies. Identifying 
a state's enforceable policies can be difficult. Also, providing the 
Federal agency with the applicable policies will help focus the Federal 
agency's efforts on the state's coastal management concerns.
    Section 930.35 would apply to negative determinations and clarify 
existing requirements for negative determinations. Section 930.35(d)(3) 
is proposed to be deleted since the subsection is not used very often, 
the meaning is not clear, it is redundant with subsection (a)(1), and 
may discourage Federal agencies from taking a hard look at borderline 
cases.
    Section 930.35(b) would clarify the information requirements for a 
negative determination. A negative determination, by definition, is a 
finding of no effects. Thus, the information provided for a negative 
determination may not be as substantial as that provided for a 
consistency determination.
    Section 930.35(c) would clarify that if a state disagrees with a 
Federal agency's negative determination, it must do so within 60 days 
or its concurrence is presumed. Public notice under CZMA 
Sec. 306(d)(14) is not required for State agency review of negative 
determinations since negative determinations are not consistency 
determinations as contemplated by the Act. This section also clarifies 
that, if a Federal agency were to agree that coastal effects are 
reasonably foreseeable and that its negative determination was not 
correct, then the State agency and Federal agency may agree to an 
alternative schedule to promote administrative efficiency.
    Section 930.36 would be moved to section 930.35(d). Section 930.36 
would incorporate existing sections 930.37 and 930.34(b) and elaborate 
on consistency determinations for proposed activities.
    Section 930.36(c) would be amended to clarify the use of general 
consistency determinations. Federal agencies may provide State agencies 
with general consistency determinations for repetitive activities in 
the same manner that they provide single consistency determinations. A 
general consistency determination is still only allowed in a limited 
number of cases where the activities are repetitive and do not affect 
any coastal use or resource when performed separately. NOAA has added 
greater flexibility for State agencies and Federal agencies to mutually 
agree to use general determinations for other non-repetitive or other 
repetitive activities. The primary purpose of a general determination 
is for repetitive activities. Allowing a Federal agency to unilaterally 
provide a general determination for non-repetitive activities that have 
cumulative effects would be inconsistent with the 1990 CZMA changes. A 
general consistency determination may be used for de minimis activities 
only when the Federal agency and State agency have mutually agreed to 
do so. The terms ``periodic'' and ``substantially similar in nature'' 
are proposed to be deleted as the concept of ``repetitive'' includes 
these terms.
    Section 930.36(e) would describe a method to efficiently address 
consistency requirements for a federal activity that is national or 
regional in scope. For example, a federal activity, such as a 
rulemaking or planning activity, may apply to more than one coastal 
state where coastal effects are reasonably foreseeable. Providing each 
state with a separate consistency determination may be difficult, 
inefficient and not cost effective, even with early coordination. The 
proposed regulation provides states and Federal agencies with the means 
to effectively coordinate, ensure adequate consideration of state 
coastal management programs, and provide an efficient, cost effective 
and timely method for meeting the consistency requirement.
    Section 930.37(c) would be moved to 930.36(d) and amended to 
clarify that phased consistency determinations refers to development 
projects and activities. Section 930.37 would clarify coordination of 
consistency with the use of NEPA documents to address consistency 
requirements. Federal agencies are not required to address consistency 
requirements in NEPA documents, but may use NEPA documents, at the 
Federal agency's discretion, as an efficient and effective mechanism to 
address the consistency requirements. The use of NEPA documents for 
consistency purposes does not, however, mean that a NEPA document 
necessarily satisfies all consistency requirements. The Federal agency 
must still comply with the applicable sections in 15 C.F.R. part 930, 
subpart C. Section 930.37 would provide flexibility for states and 
Federal agencies to agree to different NEPA/consistency review 
procedures. Coordination between states and federal agencies on federal 
consistency requirements should occur at an early stage, usually at the 
draft environmental impact statement (EIS) stage, and before the 
Federal agency reaches a significant point in its decision making and 
while the Federal agency still has discretion to modify the activity. A 
final EIS is a significant point in an agency's decision making and 
further modifications are much harder to do and require more resources. 
It is more efficient and in keeping with the intent of consistency for 
states and federal agencies to coordinate at the draft EIS stage. 
Arrangements should be made to do supplemental consistency reviews in 
case the project substantially changes in the final EIS or Record of 
Decision.
    Section 930.39(a) would be amended to clarify that the Federal 
agency's evaluation of the management program

[[Page 20276]]

is included in the consistency determination. The last sentence in 
subsection (a) is derived from the last sentence of former 
Sec. 930.34(a).
    Section 930.39(b) is proposed to be amended to conform to CZARA. 
Federal agencies are responsible for evaluating the consistency of 
nonassociated facilities or any other indirect effects if the effects 
are reasonably foreseeable. The last clause would be deleted since it 
is inconsistent with CZARA and the effects test and is covered under 
the proposed new definition of effects.
    The last sentence of section 930.39(c) would be deleted since it is 
redundant with the rest of section 930.39(c).
    Section 930.39(d) would be amended to clarify that if a Federal 
agency applies its more restrictive standards, it must, under the 
consistent to the maximum extent practicable standard, notify the State 
agency that it is proceeding with the activity even though the more 
restrictive federal standard may not be consistent with the state 
standard.
    Section 930.39(e) would clarify the relationship between state 
permit requirements and the federal consistency requirements. Federal 
agencies must obtain state permits (including state coastal management 
program permits) when required by Federal law (other than the CZMA). 
For example, the Clean Water Act (CWA) requires Federal agencies to 
obtain state permits and certifications that regulate and control 
dredging and water pollution within the navigable waters of the state. 
See 33 U.S.C. 1323, 1341, 1344(t); Friends of the Earth v. United 
States Navy, 841 F.2d 927 (9th Cir. 1988). However, in some instances, 
there may be an issue as to the scope of a state or local permit that a 
Federal agency is required to obtain by another federal law. To insure 
that such a requirement is ``not enlarged beyond what the language [of 
the federal law] requires,'' United States Department of Energy v. 
Ohio, 112 S. Ct. 1627 (1992), and to minimize conflicts in situations 
where the scope of the state permit requirement is an issue, the U.S. 
Department of Justice should be consulted. When a Federal agency is not 
required to obtain a state permit, the Federal agency must, pursuant to 
the CZMA, still be consistent to the maximum extent practicable with 
state enforceable policies, including the standards that underlie a 
state's permit program.
    Section 930.40 would be amended to simplify the reference to 
Sec. 930.39, by deleting subsections (b) and (c) and adding a reference 
to section 930.39 at the end of Sec. 930.40.
    Section 930.41(a) and (b) would be amended to simplify terms used 
in these regulations, extend the time for State agency review of 
consistency determinations from 45 to 60 days, and clarify that State 
agency objections must be postmarked by the last day of the 60 day 
review period (or last day of an extended period). Presently, a state 
response to a Federal agency's consistency determination is either an 
agreement or disagreement, and a State agency's response to an 
applicant's consistency certification for a federal license or permit 
activity is either a concurrence or an objection. The difference is 
largely semantic and confusing. Thus, all state responses to any 
consistency determination or certification are now either a concurrence 
or an objection. The intent of the change regarding the State agency's 
response is to clarify when the federal agency may presume concurrence. 
Postmarking the State agency's response by the end of the review period 
is reasonable, provides the State agency with the full 60 days to 
review the activity and still brings finality to the state's response.
    The time period for a state's response to a consistency 
determination would be increased from 45 days to 60 days to allow 
states to provide adequate public participation as required by CZMA 
section 306(d)(14)(added in 1990 by CZARA). Federal agencies must 
provide consistency determinations to coastal states at least 90 days 
prior to federal action. 16 U.S.C. 1456(c)(1)(C). Currently, NOAA 
regulations require states to respond within 45 days of receiving the 
determination. 15 CFR 930.41(a). If a state needs more time, a Federal 
agency must allow one 15 day extension. 15 CFR 930.41(b). These 
regulatory requirements were promulgated prior to the addition of CZMA 
section 306(d)(14). OCRM's Final Guidance implementing CZMA section 
306(d)(14) did not change these requirements. 59 FR 30339. It will be 
difficult for many states to meet the public participation requirement 
under state law and still respond within 45 days. The likely result of 
this new requirement is that for most reviews of consistency 
determinations, states will need at least one 15 day extension, 
resulting in at least a 60-day review. Thus, in order for states to 
develop meaningful public participation procedures, and to provide 
greater predictability for Federal agencies as to when a state's 
consistency review will be completed, NOAA proposes to provide states 
with a 60-day review period (extension provision remain the same). This 
should alleviate the inconsistency between current regulations and the 
CZMA section 306(d)(14) requirement. The total time allowed before a 
federal action may commence (90 days) would not change.
    Section 930.41(c) would be amended to clarify that the 90 day 
period begins when the State agency receives the determination and that 
federal agency action cannot commence prior to the end of the 90-day 
period unless the state concurs or the Federal agency and the state 
agree to a shorter period.
    Section 930.41(d) would be added to clarify that states cannot 
unilaterally place time limits on concurrences. States must decide if 
they can concur with a consistency determination absent an agreement on 
time limits. Otherwise a state has the option of objecting for lack of 
information, if appropriate, or relying on Sec. 930.45(b) (previously 
Sec. 930.45(b)). There are several reasons why time limits are not 
acceptable. The CZMA requires a Federal agency to provide a consistency 
determination 90 days before final Federal agency approval. CZMA 
section 307(c)(2). The CZMA does not allow states to re-review the same 
activity. State consistency decisions and objections also must be based 
on the enforceable policies of a state's management program. A time 
limit on a state's concurrence would be based on the possibility that 
the activity or the state's program would change and not on enforceable 
policies, as required by the CZMA. Further, State agencies and Federal 
agencies may agree to a time limit for a state's concurrence, including 
concurrences for de minimis activities and general determinations. The 
CZMA does, however, require Federal agencies to carry out each activity 
in a manner that is consistent to the maximum extent practicable with a 
state's enforceable policies. Thus, if a project substantially changes 
between the time that the state reviews the activity and when the 
activity begins, the Federal agency must provide a new or supplemental 
consistency determination since the state would not have had the 
opportunity to review the ``new'' activity. This is precisely what the 
proposed Sec. 930.46 is for. Section 930.46 only applies to previously 
reviewed activities that have not yet begun and the coastal effects are 
substantially different then as originally reviewed by the State 
agency.
    Section 930.41(e) would clarify that a State agency may not assess 
the federal agency with a fee for the state's review of the Federal 
agency's consistency determination, unless such a fee is required under 
federal law applicable to that agency. The CZMA does not require

[[Page 20277]]

Federal agencies to pay processing fees. NOAA cannot require such fees 
by regulation. Thus, states cannot hold up their consistency reviews or 
object based on a failure by a Federal agency to pay a fee.
    Section 930.42 would be moved to section 930.43. New section 930.42 
would detail the public participation requirement for Federal agency 
activities. Public participation for a state's review of a Federal 
agency's consistency determination is required by CZMA section 
306(d)(14). See NOAA's final guidance on this requirement, 59 FR 30339. 
The statutory section requires that ``[t]he management program provide 
for public participation in permitting processes, consistency 
determinations, and other similar decisions.'' Proposed section 930.42 
is sufficiently broad to give states flexibility in developing public 
participation procedures that meet the intent of section 306(d)(14). 
NOAA proposes to review each state's procedures during regularly 
scheduled evaluations of state coastal management programs under CZMA 
section 312 for compliance with the public participation requirement 
under section 306(d)(14), and will recommend procedural changes if 
necessary to meet proposed Sec. 930.42. The purpose of the requirement 
is to provide the public with an opportunity to comment to the coastal 
management program on the program's review of a federal activity for 
consistency with the enforceable policies of a coastal management 
program, in addition to commenting on the activity itself. Thus, a 
Federal agency cannot be required to publish or pay for the notice.
    Section 930.42(a) would be re-designated as 930.43(a) and amended 
to clarify that state objections must be based on the enforceable 
policies of an approved state coastal management program and that the 
objection letter must describe and cite the enforceable policies, and 
must state how the federal activity is inconsistent with the 
enforceable policy. This section also clarifies that the identification 
of alternatives by the state is optional, but that State agencies 
should describe alternatives, if they exist.
    Section 930.43(d) would clarify that, in the event of a state 
objection, the remainder of the 90-day period should be used to resolve 
differences and that federal agencies should postpone agency action 
after the 90 day period, if differences have not been resolved. It also 
clarifies that, notwithstanding unresolved issues, after the 90 days a 
Federal agency may only proceed with the activity over a state's 
objection if the Federal agency clearly describes, in writing, the 
federal legal requirements that prohibit the Federal agency from full 
consistency.
    Section 930.46 would address the situation where a proposed 
activity previously reviewed, but not yet begun, will have coastal 
effects substantially different than originally described. If a 
proposed project has substantially changed, and the state has not 
reviewed the changes, then it is a new project, and a new consistency 
determination is required. Since the consistency test depends on 
whether coastal effects are reasonably foreseeable, and not on the 
nature of the activity, substantial new coastal effects would also 
trigger the consistency requirement. Thus, where an activity has not 
started, substantial new effects have been discovered, and the state 
has not had the opportunity to review the activity for consistency in 
light of these effects, section 930.46 would require a supplemental 
consistency determination. This is an affirmative duty on the part of 
Federal agencies. States may seek compliance either through 
negotiation, mediation or litigation. This proposed section is similar 
to NEPA requirements for supplemental statements. See 40 CFR 
Sec. 1502.9(c)(1). NOAA expects that this section will be little used, 
but where it is used will eliminate confusion as to the consistency 
process and conform the regulations to the changes made by CZARA.
    A similar section is repeated at the end of subparts D and F. See 
proposed sections 930.66 and 930.101.

Subpart D--Consistency for Federal License or Permit Activities

    Sections 930.50 and 930.51(a) would be amended to be consistent 
with the statutory language referring to ``required'' federal license 
or permit activities. A required federal approval means that the 
activity could not be performed without the approval or permission of 
the Federal agency. The approval does not have to be mandated by 
federal law, it only has to be a requirement to perform the activity.
    Section 930.51(a) would clarify that a federal lease to a non-
federal applicant, e.g., to use federal land for a private or 
commercial purpose, is a form of authorization or permission under the 
definition of federal license or permit, with the exception of lease 
sales issued under the Outer Continental Shelf Lands Act, which are 
Federal agency activities under 15 CFR part 930, subpart C.
    Section 930.51(b)(2) would be amended to clarify that ``management 
program amendments'' as used in this section means any program change, 
i.e., amendment or routine program change, approved by OCRM under 15 
CFR part 923, subpart H.
    Section 930.51(c) would clarify that a major amendment is not a 
minor change to a previously reviewed activity, but a change that 
affects any coastal use or resource substantially different than 
effects previously reviewed by the State agency.
    Section 930.51(d) would clarify that a ``renewal'' includes 
subsequent re-approvals, issuances or extensions. Administrative 
extensions that are required must be treated like any other renewal or 
major amendment. Otherwise, some activities that should obtain a 
renewal continue to operate for years under administrative extensions. 
These activities may have coastal effects that have not been reviewed 
by state coastal management programs and which need to be consistent 
with a state's enforceable policies. These activities are, in a sense 
new activities. Renewals cannot be used to negate the consistency 
requirement.
    Section 930.51(e) would describe some parameters for how the 
determination of major amendments, renewals and substantially different 
in section 930.51 shall be made. Whether the effects from a renewal or 
major amendment are substantially different is a case-by-case factual 
determination that requires the input from all parties. However, a 
State agency's views should be accorded deference to ensure that the 
State agency has the opportunity to review coastal effects 
substantially different than previously reviewed.
    Section 930.51(f) would clarify the consistency ramifications when 
an applicant withdraws its application for a federal approval or if the 
approving Federal agency stays the application review process. If the 
applicant withdraws its application, then the consistency process stops 
(since there is no longer a federal application to trigger 
consistency). If the applicant re-applies, then a new consistency 
review is required. Likewise, if the Federal agency stays its 
proceeding, then the consistency review process will be stayed for the 
same amount of time. This will avoid confusion as to what the 
consistency review period is in these cases.
    Section 930.52 would be amended to add to the definition of 
``applicant'' applicants for a United States required approval from 
other nations, and applicants filing a consistency certification under 
the proposed general permit consistency process under Sec. 930.31(e). 
Regarding other nations, the CZMA requires any applicant for a

[[Page 20278]]

required federal license or permit to certify consistency with state 
management programs. There may be instances where a foreign company or 
individual must obtain a United States approval.
    Section 930.53(a) would be removed. Most state programs have either 
been developed or are in the process of doing so. Thus, this section is 
no longer necessary. Also, federal involvement in the identification of 
federal activities is addressed in the program development regulations. 
See 15 CFR Sec. 923.53.
    Section 930.53(b) would be moved to 930.53(a).
    Sections 930.53(a)(1) and (2) would be added to clarify the review 
of listed federal license or permit activities occurring outside of the 
coastal zone. The geographic location requirement is a means of 
notifying applicants and Federal agencies of activities with reasonably 
foreseeable coastal effects and are, therefore, subject to consistency 
review. The most effective way for a state to review listed activities 
outside the coastal zone is to describe the geographic location of a 
state's review. States are strongly encouraged to modify their programs 
to include a description of the geographic location for listed 
activities occurring outside the coastal zone to be reviewed for 
consistency. This section also codifies existing administrative policy 
that treats listed activities outside the coastal zone (for which a 
state has not described a geographic location), and listed activities 
outside a geographically described location, as unlisted activities 
under this subpart. The state's coastal zone boundary is, in a sense, 
one geographic location description. Thus, Federal lands located within 
the boundaries of a state's coastal zone are sufficiently described for 
federal license or permit activities occurring on those federal lands.
    Sections 930.53(c), (d) and (e) would be moved to 930.53(b), (c) 
and (d), respectively. The addition of proposed sections 930.53(c)(1) 
and (2) clarify the procedures for consultation with Federal agencies 
and approval by the Director.
    Section 930.54(a)(1) would be amended to clarify where State 
agencies should look to monitor unlisted activities. Specifically, 
draft NEPA documents and Federal Register notices are key documents 
State agencies should review. This section also clarifies that State 
agency notice should be sent to the applicant, the Federal agency, and 
the Director of OCRM. The term ``immediately'' has been deleted as 
there is already specified a 30 day time period in which to respond.
    Section 930.54(b) would be amended to clarify that the State 
agency's notification must also include a request for OCRM approval and 
the State agency's analysis supporting its claim that coastal effects 
are reasonably foreseeable.
    Section 930.54(c) would be amended to clarify that the Director's 
decision deadline may be extended by the Director for complex issues or 
to address the needs of one or more of the parties. This would codify 
existing practice which has been useful in resolving issues often 
leading to the State agency's withdrawal of its request.
    Section 930.54(f) would provide applicants and State agencies with 
the flexibility to agree to forego the unlisted activity procedure, 
have the applicant subject itself to consistency, and to expedite the 
consistency process. This would help to resolve any coastal management 
issues informally and to avoid delays due to disagreement over whether 
the application should be subject to State agency consistency review.
    Section 930.56(b) would be moved to Sec. 930.58(a)(2). This would 
consolidate all material on necessary data and information in one 
section. The proposed last sentence of Sec. 930.56 as State agencies 
need to be able to identify their enforceable policies and have an 
obligation to identify the applicable policies to Federal agencies and 
applicants. Also, since many state coastal management programs now 
contain substantial numbers of enforceable policies, it is more 
efficient and effective if states can identify the applicable policies 
to the applicants, rather than the applicant having to pick and choose 
from all the state policies.
    Section 930.58 would be modified to clarify information 
requirements and to consolidate language from other sections. 
Subsection 930.58(a)(1) (formerly Sec. 930.56(b)) would clarify that 
the necessary data and information which applicants must provide to the 
State agency may include state permits or permit applications.
    Sections 930.60(a)(1), (2) and (3) would clarify when the 
consistency time clock may begin; the consequences of an incomplete 
certification; and State agency notice requirements to the applicant 
and the Federal agency. Where the applicant has submitted an incomplete 
certification and the state begins the consistency time clock, the 
State agency cannot later stop the time clock unless the applicant 
agrees. Section 930.60(a)(2) would require State agencies to notify the 
applicant and the Federal agency of the date when necessary 
certification or information deficiencies have been corrected, and the 
State agency's review has begun. Subsection (a)(3) would allow states 
and applicants to mutually agree to alter the review time period.
    Section 930.62 would be deleted and part of it moved to section 
930.61(a). The following section numbers in this subpart would be 
renumbered.
    Section 930.63(a) (to be redesignated as section 930.62(a)) would 
be amended to clarify that a State agency's objection must be 
postmarked by the end of the six month review period.
    Section 930.62(d) would be moved from Sec. 930.64(c).
    Section 930.64(b) (to be redesignated as section 930.63(b)) would 
be amended to clarify that State agency objections must be based on 
enforceable policies. Sections 930.63(b) and (d) would be revised to 
clarify that alternatives identification is an option for the state and 
to provide requirements on alternative descriptions if a State agency 
chooses to identify alternatives. These changes recognize the fact 
that, even if an applicant proposes to adopt a State agency's 
alternative, the Federal agency cannot approve the project due to the 
State agency's objection. Thus, if an applicant wants the federal 
approval the applicant must consult with the State agency and the State 
agency must remove its objection, unless an applicant appeals to the 
Secretary and prevails.
    Section 930.64(e) (to be redesignated as section 930.63(e)) would 
be amended to clarify the notification of availability of the 
Secretarial override process. Since a concurrence with conditions may 
also become an objection, a conditional concurrence must also include 
similar appeal language.
    Section 930.66 (to be redesignated as Sec. 930.65) would be amended 
to provide states with a more meaningful opportunity to address 
instances where the State agency claims that an activity once found 
consistent or not affecting any coastal use or resource, is not being 
conducted as originally proposed and which will cause effects on a 
coastal use or resource substantially different than originally 
proposed. Previously, states could only request that the Federal agency 
take remedial action. If a Federal agency does not take remedial action 
the State agency can request that the Director find that the effects of 
the activity have substantially changed and require the applicant to 
submit an amended or new consistency certification and supporting 
information, or comply with the originally approved certification. This 
change mirrors the existing remedial action section of subpart E (see 
Sec. 930.86)

[[Page 20279]]

and, like section 930.86, is not expected to be used frequently. 
However, the procedure exists, if necessary, to ensure that federal 
license or permit activities continue to be conducted consistent with a 
state's management program.
    Section 930.66 would contain a supplemental coordination for 
proposed activities provision. See discussion of section 930.46.

Subpart E--Consistency for Outer Continental Shelf (OCS) Exploration, 
Development and Production Activities

    Section 930.75(b) would be deleted as redundant with the proposed 
changes to Sec. 930.76(b) and with Sec. 930.58.
    Section 930.77 would be deleted since this information is redundant 
with Sec. 930.58, which is referenced in Sec. 930.76(b). The rest of 
the sections in this subpart are renumbered accordingly (with 
additional minor changes, mostly conforming with changes made in 
subpart D).
    Section 930.79(a) would be amended to clarify that if, after State 
agency concurrence, the activity, or effects from the activity, which 
the State agency reviewed, has substantially changed, then a new 
consistency certification shall be included in the person's application 
for the federal license or permit. This is consistent with the 
statutory requirement that all federal actions affecting any coastal 
use or resource are subject to the consistency requirement. If the 
activity or effects have changed, then the state did not have the 
opportunity to review the activity.
    Sections 930.83(b)-(e) (currently Sec. 930.84(b)-(e)) would be 
deleted since they are unnecessary and are replaced by the new 
reference in revised Sec. 930.83.

Subpart F--Consistency for Federal Assistance to State and Local 
Governments

    Section 930.94 would be amended to clarify that all federal 
assistance activities that affect any coastal use or resource are 
subject to the consistency requirement. While the intergovernmental 
review process is the preferred method for notifying the State agency 
and for State agency review, the intergovernmental review process may 
not provide notification for all federal assistance activities subject 
to the consistency requirement. Proposed Secs. 930.94(b) and 930.95 
provide methods to ensure adequate notification and review, by 
specifying a listed and unlisted procedure.
    Section 930.94(c) would be added to conform to the statutory 
requirement that the applicant agency provide an evaluation of 
consistency. See CZMA section 307(d).
    Sections 930.96(c)-(e) would be deleted since the reference to 
Sec. 930.63 in Sec. 930.63(b) eliminates the need for these 
subsections.
    The unlisted activity procedure in section 930.98 follows the 
unlisted activity procedures found at Sec. 930.54, except that Director 
approval is not required, because the State agency, through its 
monitoring and review of federal assistance activities, determines if 
coastal effects are reasonably foreseeable.
    Section 930.100 would be amended to provide states with more 
meaningful opportunity to address remedial action for previously 
reviewed activities. See discussion of Sec. 930.65.
    Section 930.101 would contain a supplemental coordination for 
proposed activities provision. See discussion of section 930.46.

Subpart G--Secretarial Mediation

    Only minor changes were made to subpart G. Subpart G provides a 
process for Federal agencies and coastal states to request that the 
Secretary of Commerce mediate serious disputes regarding the federal 
consistency requirements. Subpart G also provides for informal 
negotiation by OCRM. Both Secretarial mediation and informal 
negotiations require the participation of both agencies and are non-
binding.

Subpart H--Secretarial Review Related to the Objectives or Purposes of 
the Act and National Security Interests

    Pursuant to section 307 of the Act, no federal agency may issue a 
license or permit for an activity until an affected coastal state has 
concurred that the activity will be conducted in a manner consistent 
with the state's management program unless the Secretary, on his own 
initiative or on appeal by the applicant, finds that the activity is 
consistent with the objectives of the Act or is other wise necessary in 
the interest of national security. Subpart H sets forth the procedures 
applicable to such appeals and the requirements for such findings by 
the Secretary.
    The Secretary's review is an independent assessment of the activity 
(the Secretary's review of the State agency's decision is limited to 
ensuring that the state's objection to an applicant's consistency 
certification was based on enforceable policies that are incorporated 
into the state's management program and that other consistency process 
requirements were met). If the Secretary overrides a State agency's 
objection, then the Federal agency may permit or fund the activity.
    Changes were made to Sec. 930.121(a) and (b) to ensure that the 
Secretary overrides a state's objection only where there is a national 
interest in the activity and that interest outweighs the adverse 
coastal effects of the activity. These changes will allow the Secretary 
to address issues of national concern and not minor local land use 
decisions that have only a de minimis connection to coastal uses and 
the national interest defined in the CZMA's objectives.
    In addition, changes were made to Sec. 930.121(d) to clarify the 
determination by the Secretary of the availability of alternatives. 
Currently, under the other elements of Sec. 930.121, the Secretary may 
consider many factors when determining whether an appellant has met a 
particular element. Regarding the element on alternatives, there is 
confusion as to when alternatives may be raised, the consequences of a 
State agency not providing alternatives or when it issues its 
objection, and the level of specificity that the State agency needs to 
provide to satisfy the element on appeal. The changes to 
Sec. 930.121(d) reflect the independent basis of the Secretary's 
decision by not restricting the scope of the Secretary's review. These 
changes will ensure that the Secretary's findings regarding 
alternatives will not be restricted, but will be informed and based on 
the Secretary's independent administrative record for each case. In 
this way, both the state and appellant will be able to provide to the 
Secretary information on whether an alternative is reasonable and 
described with sufficient specificity that might not have been 
available when the state issued its objection.
    Section 930.125 is revised to make it consistent with the 1990 
amendments to the CZMA. The changes include the requirement that an 
appellant pay a filing fee to the Secretary.
    Section 930.126 would codify and explain the statutory requirement 
for the Secretary to collect fees from appellants to recover the costs 
of administering and processing appeals. These fees are in addition to 
the filing fees. See 16 USC 1456(i).
    Section 930.127 would clarify when an appellant must submit 
supporting data and information. This requirement is necessary so that 
the Secretary can meet new time limits placed on the Secretary by the 
1996 amendments to the CZMA.
    Section 930.132 would be amended to clarify the procedures 
applicable to reviews initiated by the secretary on his/her own 
initiative. Section 930.132(b) is superseded by section 8 of the 
Coastal Zone Protection Act of 1996, Public Law 104-150. Section 8 
created

[[Page 20280]]

a new section 319 of the CZMA concerning the timing of appeals.
    Sections 930.133 and 134 would be replaced with a cross reference 
in Sec. 930.134(b) to the provisions in subpart H for processing and 
administering appeals.

Subpart I--Assistant Administrator Reporting and Review

    Existing subpart I would be removed. This subpart has never been 
used, and there are other existing CZMA mechanisms for reporting and 
review: oversight and monitoring under CZMA section 306, evaluations 
under CZMA section 312, appeals under CZMA section 307, and unlisted 
activity review approvals.
    In addition, section 930.145 would be revised and moved to section 
930.3.

Proposed Subpart I--Consistency of Federal Activities Having Interstate 
Coastal Effects

    The CZARA clarified that the federal consistency trigger is coastal 
effects, regardless as to the geographic location of the federal 
activity. See 16 U.S.C. 1456; H.R. Conf. Rep. No. 964, 101st Cong., 2d 
Sess., 970-972. Thus, federal consistency applies to all relevant 
federal actions, even when they occur outside the state's coastal zone 
and in another state. For example, State A may review a federal permit 
application for an activity occurring wholly within State B if State A 
has a federally approved coastal management program and the activity 
will have coastal effects. An example of this type of activity is the 
placement of a sewage outfall pipe in State B's waters that results in 
impacts to shellfish harvesting waters in State A.
    In 1994, the Secretary of Commerce found, in the Lake Gaston 
decision, that federal consistency applied to a federal activity 
occurring in one state and having coastal effects in another state 
(hereinafter referred to as ``interstate consistency''). This decision 
was based on a 1989 NOAA General Counsel opinion, the plain language of 
the CZMA and the Conference Report. See also 136 Cong. Rec. H8077 (Sep. 
26, 1990).
    Interstate consistency does not expand a coastal state's 
jurisdiction or affect the sovereignty of other states. Federal 
consistency applies only to federal actions, not state actions. If 
State A determines that an activity in State B would affect its coastal 
resources, but no federal permit or other federal action is required to 
undertake the activity, State A does not have any authority under the 
CZMA to review that activity. The CZMA also, even when there is a 
federal connection, does not give coastal states the authority to 
review the application of the laws, regulations, or policies of any 
other state. The CZMA only allows a state coastal management program to 
review the federal approval of an activity. NOAA proposes to add a new 
subpart I to provide clearer guidance as to how interstate consistency 
should be applied.
    NOAA believes that regulations are needed so that the application 
of interstate consistency is carried out in a predictable, reasonable, 
and efficient manner. NOAA is specifically addressing interstate 
consistency to encourage neighboring states to cooperate in dealing 
with common resource management issues, and to provide states, 
permitting agencies, and the public with a more predictable application 
of the consistency requirement to these activities. Interstate resource 
management issues are best resolved on a cooperative, proactive basis.

VIII. Miscellaneous Rulemaking Requirements

Executive Order 12372: Intergovernmental Review

    This program is subject to Executive Order 12372.

Executive Order 13132: Federalism Assessment

    NOAA has concluded that this regulatory action is consistent with 
federalism principles, criteria, and requirements stated in Executive 
Order 13132. The proposed changes in the federal consistency 
regulations are intended to facilitate Federal agency coordination with 
coastal states, and ensure that federal actions affecting any coastal 
use or resource are consistent with the enforceable policies of 
approved state coastal management programs. The Coastal Zone Management 
Act (CZMA) and these revised implementing regulations promote the 
principles of federalism articulated in Executive Order 13132 by 
granting the states a qualified right to review certain federal 
activities that affect the land and water uses or natural resources of 
state coastal zones. Section 307 of the CZMA and these implementing 
regulations effectively transfer power from federal agencies to state 
agencies whenever federal agencies propose activities or applicants for 
required federal license or permit propose to undertake activities 
affecting state coastal resources. Through the CZMA, federal agencies 
are required to carry out their activities in a manner that is 
consistent to the maximum extent practicable with federally approved 
state programs and licensees and permitees to be fully consistent with 
the state programs. The CZMA and these implementing regulations, rather 
than preempting a State provide a mechanism for it to object to federal 
activities that are not consistent with the State's management program. 
A state objection prevents the issuance of the federal permit or 
license, unless the Secretary of Commerce overrides the objection. 
Because the CZMA and these regulations promote the principles of 
federalism and enhance state authorities, no federalism assessment need 
be prepared.

Executive Order 12866: Regulatory Planning and Review

    This regulatory action 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. This proposed rule will only make minor changes to 
existing law, under both the CZMA and the existing regulations. The 
existing regulations do not have a significant impact on a substantial 
number of small entities and, thus, codifying in the regulations the 
requirements of the CZMA, as amended in 1990, and other minor changes, 
will not result in any additional economic impact on affected entities. 
The proposed rule: (1) Addresses coastal management programs of coastal 
states and territories, (2) removes outdated or unnecessary provisions 
for federal consistency purposes, (3) revises the remaining provisions 
to improve federal-state coordination of actions affecting the coastal 
zone, and (4) do not impose any significant new requirements on states, 
federal agencies, businesses, or the public. The basic substantive 
requirements in the existing regulations and the proposed rule would 
remain in effect whether or not the proposed rule is adopted. 
Accordingly, an initial Regulatory Flexibility Analysis was not 
prepared.
    The term ``small entity'' includes small businesses, small 
organizations, and small governmental jurisdictions. The federal 
consistency regulations, and the proposed rule, primarily affect states 
and federal agencies. Federal consistency also applies to private land 
owners proposing certain activities

[[Page 20281]]

affecting the coastal zone that require federal approvals. State and 
federal agencies and private landowners are not small entities under 
the Regulatory Flexibility Act (RFA). Federal consistency does apply to 
some small businesses, small organizations and small governmental 
jurisdictions proposing activities that affect the coastal zone. 
(NOAA's National Marine Fisheries Service defines a small jurisdiction 
under the RFA as any government of a district with a population of less 
than 50,000.) However, these numbers are insignificant when compared to 
the number of small businesses and governmental jurisdictions in 
coastal states. The Federal consistency appeal process affects very few 
entities of any kind. Since the CZMA was enacted in 1972, only 39 
consistency appeals have been filed with the Secretary of Commerce. Of 
those 39 consistency appeals, only 5 appeals have involved small 
entities. In 27 years of implementation, only five small entities have 
been affected by these regulations governing consistency appeals to the 
Secretary of Commerce.
    In addition, the number of small entities affected by the 
consistency provisions of the CZMA generally, are insignificant when 
compared to the total number of small businesses and governmental 
jurisdictions in the 33 coastal states with approved coastal management 
programs. For example, in the State of North Carolina, for the period 
January 1, 1998, to December 31, 1998, the state reviewed 26 
applications for federal licenses or permits under 15 CFR part 930, 
subpart D (the existing regulations), for activities that did not 
require a state permit. Of these 26 applications, no small entities 
were subject to the state's CZMA federal consistency review authority 
and the existing regulations. During the same period the state also 
reviewed 90 applications by state agencies and local governments for 
federal financial assistance. Of these 90 applications, 28 small 
entities were subject to the state's CZMA federal consistency review 
authority and the existing regulations. The State did not object to any 
of these financial assistance applications. Moreover, all of these 
financial assistance activities involved allowing federal funds to 
improve local infrastructure. North Carolina is a representative state 
in the use and application of the federal consistency requirement and 
the existing regulations. This is evidenced by the fact that all State 
coastal management programs concur with 95-97 percent of all federal 
license or permit activities, and over 99 percent of all applicable 
small organization and governmental jurisdiction federal assistance 
activities.
    Thus, the existing regulations do not, and the proposed rule will 
not, have a significant impact on a substantial number of small 
entities.

Paperwork Reduction Act

    This proposed rule contains a collection-of-information requirement 
subject to review and approval by OMB under the Paperwork Reduction Act 
(PRA). Many of these are existing requirements and are being submitted 
to OMB for approval. This Notice also refers to federally approved 
coastal management plans which have previously been approved by OMB 
under 0648-0119. Public reporting burden for the collection of 
information related to this proposed rule is estimated to average as 
follows: (A) State objection and concurrence to consistency 
certifications or determinations approximately 18,800 hours; (B) State 
requests to review unlisted activities approximately 12 hours; (C) 
public notice requirements approximately 1300 hours; (D) remedial 
action and supplemental review approximately 12 hours; (E) listing 
notices approximately 1 hour; (F) mediation requests approximately 6 
hours; and (G) appeals to the Secretary of Commerce approximately 200 
hours.
    Public comment is sought regarding: whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance quality, utility and clarity of the information to be 
collected; and ways to minimize the burden of the collection of the 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
any of these or any other aspects of the collection of information to 
David Kaiser, Federal Consistency Coordinator at the ADDRESSES above, 
and to OMB at the Office of Information and Regulatory Affairs, Office 
of Management and Budget, Washington, D.C. 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 in 15 CFR Part 930

    Administrative practice and procedure, Coastal zone, Reporting and 
recordkeeping requirements.

    Dated: April 6, 2000.
Ted Lillestolen,
Deputy Assistant Administrator for Ocean Services and Coastal Zone 
Management.

    For the reasons set out in the preamble, NOAA proposes to revise 15 
CFR part 930 to read as follows:

PART 930--FEDERAL CONSISTENCY WITH APPROVED COASTAL MANAGEMENT 
PROGRAMS

Subpart A--General Information
Sec.
930.1   Overall objectives.
930.2   Public participation.
930.3   Review of the implementation of the federal consistency 
requirement.
930.4   Conditional concurrences.
930.5   State enforcement actions.
930.6   State agency responsbility.
Subpart B--General Definitions
930.10   Index to definitions for terms defined in part 930.
930.11   Definitions.
Subpart C--Consistency for Federal Agency Activities 930.30 Objectives.
930.31   Federal agency activity.
930.32   Consistent to the maximum extent practicable.
930.33   Identifying Federal agency activities affecting any coastal 
use or resource.
930.34   Federal and State agency coordination.
930.35   Negative determinations for proposed activities.
930.36   Consistency determinations for proposed activities.
930.37   Consistency determinations and National Environmental 
Policy Act (NEPA) requirements.
930.38   Consistency determinations for activities initiated prior 
to management program approval.
930.39   Content of a consistency determination.
930.40   Multiple Federal agency participation.
930.41   State agency response.
930.42   Public participation.
930.43   State agency objection.
930.44   Availability of mediation for disputes concerning proposed 
activities.
930.45   Availability of mediation for previously reviewed 
activities.
930.46   Supplemental coordination for proposed activities.

[[Page 20282]]

Subpart D--Consistency for Activities Requiring a Federal License or 
Permit
930.50   Objectives.
930.51   Federal license or permit.
930.52   Applicant.
930.53   Listed federal license or permit activities.
930.54   Unlisted federal license or permit activities.
930.55   Availability of mediation for license or permit disputes.
930.56   State agency guidance and assistance to applicants.
930.57   Consistency certifications.
930.58   Necessary data and information.
930.59   Multiple permit review.
930.60   Commencement of state agency review.
930.61   Public participation.
930.62   State agency concurrence with a consistency certification.
930.63   State agency objection to a consistency certification.
930.64   Federal permitting agency responsibility.
930.65   Remedial action for previously reviewed activities.
930.66   Supplemental coordination for proposed activities.
Subpart E--Consistency for Outer Continental Shelf (OCS) Exploration, 
Development and Production Activities
930.70  Objectives.
930.71   Federal license or permit activity described in detail.
930.72   Person.
930.73   OCS plan.
930.74   OCS activities subject to state agency review.
930.75   State agency assistance to persons.
930.76   Submission of an OCS plan, necessary data and information 
and consistency certification.
930.77   Commencement of State agency review and public notice.
930.78   State agency concurrence or objection.
930.79   Effect of State agency concurrence.
930.80   Federal permitting agency responsibility.
930.81   Multiple permit review.
930.82   Amended OCS plans.
930.83   Review of amended or new OCS plans; public notice.
930.84   Continuing State agency objections.
930.85   Failure to comply substantially with an approved OCS plan.
Subpart F--Consistency for Federal Assistance to State and Local 
Governments
930.90  Objectives.
930.91   Federal assistance.
930.92   Applicant agency.
930.93   Intergovernmental review process.
930.94   State review process for consistency.
930.95   Guidance provided by the state agency.
930.96   Consistency review.
930.97   Federal assisting agency responsibility.
930.98   Federally assisted activities outside of the coastal zone 
or the described geographic area.
930.99   Availability of mediation for federal assistance disputes.
930.100   Remedial action for previously reviewed activities.
930.101   Supplemental coordination for proposed activities.
Subpart G--Secretarial Mediation
930.110  Objectives.
930.111   Informal negotiations.
930.112   Request for mediation.
930.113   Public hearings.
930.114   Secretarial mediation efforts.
930.115   Termination of mediation.
930.116   Judicial review.
Subpart H--Secretarial Review Related to the Objectives or Purposes of 
the Act and National Security Interests
930.120  Objectives.
930.121   Consistent with the objectives or purposes of the Act.
930.122   Necessary in the interest of national security.
930.123   Appellant and the Federal agency.
930.124   Computation of time.
930.125   Notice of appeal to the Secretary.
930.126   Consistency appeal processing fees.
930.127   Briefs and supporting data and information.
930.128   Public notice and comment period.
930.129   Dismissal, remand and stay of appeals.
930.130   Public hearings.
930.131   Closure of the decision record and issuance of decision.
930.132   Review initiated by the Secretary.
Subpart I--Consistency of Federal Activities Having Interstate Coastal 
Effects
930.150  Objectives.
930.151   Interstate coastal effect.
930.152   Application.
930.153   Coordination between states in developing coastal 
management policies.
930.154   Listing activities subject to interstate consistency 
review.
930.155   Federal and State agency coordination.
930.156   Content of a consistency determination or certification 
and State agency response.
930.157   Mediation and informal negotiations.

    Authority: 16 U.S.C. 141 et seq.

Subpart A--General Information


Sec. 930.1  Overall objectives.

    The objectives of this part are:
    (a) To describe the obligations of all parties who are required to 
comply with the federal consistency requirement of the Coastal Zone 
Management Act;
    (b) To implement the federal consistency requirement in a manner 
which strikes a balance between the need to ensure consistency for 
federal actions affecting any coastal use or resource with the 
enforceable policies of approved management programs and the importance 
of federal activities;
    (c) To provide flexible procedures which foster intergovernmental 
cooperation and minimize duplicative effort and unnecessary delay, 
while making certain that the objectives of the federal consistency 
requirement of the Act are satisfied. Federal agencies, State agencies, 
and applicants should coordinate as early as possible in developing a 
proposed federal action, and may mutually agree to intergovernmental 
coordination efforts to meet the requirements of these regulations 
(provided that public participation requirements are met and applicable 
state management program enforceable policies are considered).
    (d) To interpret significant terms in the Act and this part;
    (e) To provide procedures to make certain that all Federal agency 
and State agency consistency decisions are directly related to the 
enforceable policies of approved coastal management programs;
    (f) To provide procedures which the Secretary, in cooperation with 
the Executive Office of the President, may use to mediate serious 
disagreements which arise between Federal and State agencies during the 
administration of approved coastal management programs; and
    (g) To provide procedures which permit the Secretary to review 
federal license or permit activities, or federal assistance activities, 
to determine whether they are consistent with the objectives or 
purposes of the Act, or are necessary in the interest of national 
security.


Sec. 930.2  Public participation.

    State management programs shall provide an opportunity for public 
participation in the State agency's review of a Federal agency's 
consistency determination or an applicant's or person's consistency 
certification.


Sec. 930.3  Review of the implementation of the federal consistency 
requirement.

    As part of the responsibility to conduct a continuing review of 
approved management programs, the Director of the Office of Ocean and 
Coastal Resource Management (Director) shall review the performance of 
each state's implementation of the federal consistency requirement. The 
Director shall evaluate instances where a State agency is believed to 
have either failed to object to inconsistent federal actions, or 
improperly objected to consistent federal actions. This evaluation 
shall be incorporated within the Director's general efforts to 
ascertain instances where a state has not adhered to its approved 
management program and such lack of adherence is not justified.


Sec. 930.4  Conditional concurrences.

    (a) Federal agencies, applicants, persons and applicant agencies 
should

[[Page 20283]]

cooperate with State agencies to develop conditions that, if agreed to 
during the State agency's consistency review period and included in a 
Federal agency's final decision under subpart C or in a Federal 
agency's approval under subparts D, E, F or I of this part, would allow 
the State agency to concur with the federal action. If a State agency 
issues a conditional concurrence:
    (1) The State agency shall include in its concurrence letter the 
conditions which must be satisfied, an explanation of why the 
conditions are necessary to ensure consistency with specific 
enforceable policies of the management program, and an identification 
of the specific enforceable policies. The State agency's concurrence 
letter shall also inform the parties that if the requirements of 
paragraphs (a)(1) through (3) of this section are not met, then all 
parties shall treat the State agency's conditional concurrence letter 
as an objection pursuant to the applicable subpart and notify, pursuant 
to Sec. 930.63(e), applicants, persons and applicant agencies of the 
opportunity to appeal the State agency's objection to the Secretary of 
Commerce within 30 days after receipt of the State agency's conditional 
concurrence/objection or 30 days after receiving notice from the 
Federal agency that the application will not be approved as amended by 
the State agency's conditions;
    (2) The Federal agency (for subpart C), applicant (for subparts D 
and I), person (for subpart E) or applicant agency (for subpart F) 
shall modify the applicable plan, project proposal, or application to 
the Federal agency pursuant to the State agency's conditions. The 
Federal agency, applicant, person or applicant agency shall immediately 
notify the State agency if the State agency's conditions are not 
acceptable; and
    (3) The Federal agency (for subparts D, E, F and I) shall approve 
the amended application (with the State agency's conditions). The 
Federal agency shall immediately notify the State agency and applicant 
or applicant agency if the Federal agency will not approve the 
application as amended by the State agency's conditions. Federal 
agencies shall enforce, to the extent allowed by law, the state 
conditions contained in the federal permit or license as approved with 
the state's conditions.
    (b) If the requirements of paragraphs (a)(1) through (3) of this 
section are not met, then all parties shall treat the State agency's 
conditional concurrence as an objection pursuant to the applicable 
subpart.


Sec. 930.5  State enforcement action.

    The regulations in this part are not intended in any way to alter 
or limit other legal remedies, including judicial review or state 
enforcement, otherwise available. State agencies and Federal agencies 
should first use the various remedial action and mediation sections of 
this part to resolve their differences or to enforce State agency 
concurrences or objections.


Sec. 930.6  State agency responsibility.

    (a) This section describes the responsibilities of the ``State 
agency'' described in Sec. 930.11(o). A designated State agency is 
required to uniformly and comprehensively apply the enforceable 
policies of the state's management program, efficiently coordinate all 
state coastal management requirements, and to provide a single point of 
contact for Federal agencies and the public to discuss consistency 
issues. Any appointment by the State agency of the state's consistency 
responsibilities to a designee agency must be described in the state's 
management program. In the absence of such description, all consistency 
determinations, consistency certifications and federal assistance 
proposals shall be sent to and reviewed by the State agency. A state 
may have two State agencies designated pursuant to section 306(d)(6) of 
the Act where the state has two geographically separate federally-
approved coastal management programs.
    (b) The State agency is responsible for commenting on and 
concurring with or objecting to Federal agency consistency 
determinations and negative determinations (see subpart C of this 
part), consistency certifications for federal licenses, permits, and 
Outer Continental Shelf plans (see subparts D, E and I of this part), 
and reviewing the consistency of federal assistance activities proposed 
by applicant agencies (see subpart F of this part). The State agency 
shall be responsible for securing necessary review and comment from 
other state, regional, or local government agencies. Thereafter, only 
the State agency is authorized to comment officially on or concur with 
or object to a federal consistency determination or negative 
determination, a consistency certification, or determine the 
consistency of a proposed federal assistance activity.
    (c) If described in a state's management program, the issuance or 
denial of relevant state permits can constitute the State agency's 
consistency concurrence or objection if the State agency ensures that 
the state permitting agencies or the State agency review individual 
projects to ensure consistency with all applicable state management 
program policies. The State agency shall monitor such permits issued by 
another state agency.

Subpart B--General Definitions


Sec. 930.10  Index to definitions for terms defined in part 930.

------------------------------------------------------------------------
                    Term                               Section
------------------------------------------------------------------------
Act........................................  930.11(a)
Any coastal use or resource................  930.11(b)
Appellant..................................  930.123
Applicant..................................  930.52
Applicant agency...........................  930.92
Assistant Administrator....................  930.11(c)
Associated facilities......................  930.11(d)
Coastal zone...............................  930.11(e)
Consistent to the maximum extent             930.32
 practicable.
Consistent with the objectives or purposes   930.121
 of the Act.
Development project........................  930.31(b)
Director...................................  930.11(f)
Effect on any coastal use or resource......  930.11(g)
Enforceable policy.........................  930.11(h)
Executive Office of the President..........  930.11(i)
Failure substantially to comply with an OCS  930.86(d)
 plan.
Federal agency.............................  930.11(j)
Federal agency activity....................  930.31
Federal assistance.........................  930.91
Federal license or permit..................  930.51
Federal license or permit activity           930.71
 described in detail.
Interstate coastal effect .................  930.151
Major amendment............................  930.51(c)
Management program.........................  930.11(k)
Necessary in the interest of national        930.122
 security.
OCS plan...................................  930.73
OCRM.......................................  930.11(l)
Person.....................................  930.72
Secretary..................................  930.11(m)
Section....................................  930.11(n)
State agency...............................  930.11(o)
------------------------------------------------------------------------

Sec. 930.11  Definitions.

    (a) Act. The term ``Act'' means the Coastal Zone Management Act of 
1972, as amended (16 U.S.C. 1451-1464).
    (b) Any coastal use or resource. The phrase ``any coastal use or 
resource'' means any land or water use or natural resource of the 
coastal zone. Land and water uses, or coastal uses, are defined in 
sections 304(10) and (18) of the Act, respectively, and include, but 
are not limited to, public access, recreation, fishing, historic or 
cultural preservation, development, hazards management, marinas and 
floodplain management, scenic and aesthetic enjoyment, and resource 
creation or restoration projects. Natural resources include biological 
or physical resources that are found within a state's coastal zone on a 
regular or cyclical basis. Biological and physical resources include, 
but are not limited to,

[[Page 20284]]

air, tidal and nontidal wetlands, ocean waters, estuaries, rivers, 
streams, lakes, aquifers, submerged aquatic vegetation, land, plants, 
trees, minerals, fish, shellfish, invertebrates, amphibians, birds, 
mammals, reptiles, and coastal resources of national significance. 
Coastal uses and resources also includes uses and resources 
appropriately described in a state's management program.
    (c) Assistant Administrator. The term ``Assistant Administrator'' 
means the Assistant Administrator for Ocean Services and Coastal Zone 
Management, NOAA.
    (d) Associated facilities. The term ``associated facilities'' means 
all proposed facilities which are specifically designed, located, 
constructed, operated, adapted, or otherwise used, in full or in major 
part, to meet the needs of a federal action (e.g., activity, 
development project, license, permit, or assistance), and without which 
the federal action, as proposed, could not be conducted. The proponent 
of a federal action shall consider whether the federal action and its 
associated facilities affect any coastal use or resource and, if so, 
whether these interrelated activities satisfy the requirements of the 
applicable subpart (subparts C, D, E, F or I of this part).
    (e) Coastal Zone. The term ``coastal zone'' has the same definition 
as provided in section 304(1) of the Act.
    (f) Director. The term ``Director'' means the Director of the 
Office of Ocean and Coastal Resource Management (OCRM), National Ocean 
Service, NOAA.
    (g) Effect on any coastal use or resource (coastal effect). The 
term ``effect on any coastal use or resource'' means any reasonably 
foreseeable effect on any coastal use or resource resulting from a 
federal action. (The term ``federal action'' includes all types of 
activities subject to the federal consistency requirement under 
subparts C, D, E, F and I of this part.) Effects are not just 
environmental effects, but include effects on coastal uses. Effects 
include both direct effects which result from the activity and occur at 
the same time and place as the activity, and indirect (cumulative and 
secondary) effects which result from the activity and are later in time 
or farther removed in distance, but are still reasonably foreseeable. 
Indirect effects are effects resulting from the incremental impact of 
the federal action when added to other past, present, and reasonably 
foreseeable actions, regardless of what person(s) undertake(s) such 
actions.
    (h) Enforceable policy. ``The term `enforceable policy' means State 
policies which are legally binding through constitutional provisions, 
laws, regulations, land use plans, ordinances, or judicial or 
administrative decisions, by which a State exerts control over private 
and public land and water uses and natural resources in the coastal 
zone,'' 16 U.S.C. 1453(6a), and which are incorporated in a state's 
management program as approved by OCRM either as part of program 
approval or as a program change under 15 CFR part 923, subpart H. An 
enforceable policy shall contain standards of sufficient specificity to 
guide public and private uses. Enforceable policies need not establish 
detailed criteria such that a proponent of an activity could determine 
the consistency of an activity without interaction with the State 
agency. State agencies may identify management measures which are based 
on enforceable policies, and, if implemented, would allow the activity 
to be conducted consistent with the enforceable policies of the 
program. A State agency, however, must base its objection on 
enforceable policies.
    (i) Executive Office of the President. The term ``Executive Office 
of the President'' means the office, council, board, or other entity 
within the Executive Office of the President which shall participate 
with the Secretary in seeking to mediate serious disagreements which 
may arise between a Federal agency and a coastal state.
    (j) Federal agency. The term ``Federal agency'' means any 
department, agency, board, commission, council, independent office or 
similar entity within the executive branch of the federal government, 
or any wholly owned federal government corporation.
    (k) Management program. The term ``management program'' has the 
same definition as provided in section 304(12) of the Act, except that 
for the purposes of this part the term is limited to those management 
programs adopted by a coastal state in accordance with the provisions 
of section 306 of the Act, and approved by the Assistant Administrator.
    (l) OCRM. The term ``OCRM'' means the Office of Ocean and Coastal 
Resource Management, National Ocean Service, National Oceanic and 
Atmospheric Administration (``NOAA''), U.S. Department of Commerce.
    (m) Secretary. The term ``Secretary'' means the Secretary of 
Commerce and/or designee.
    (n) Section. The term ``Section'' means a section of the Coastal 
Zone Management Act of 1972, as amended.
    (o) State agency. The term ``State agency'' means the agency of the 
state government designated pursuant to section 306(d)(6) of the Act to 
receive and administer grants for an approved management program, or a 
single designee State agency appointed by the 306(d)(6) State agency.

Subpart C--Consistency for Federal Agency Activities


Sec. 930.30  Objectives.

    The provisions of this subpart are intended to assure that all 
Federal agency activities including development projects affecting any 
coastal use or resource will be undertaken in a manner consistent to 
the maximum extent practicable with the enforceable policies of 
approved state management programs. The provisions of subpart I of this 
part are intended to supplement the provisions of this subpart for 
Federal agency activities having interstate coastal effects.


Sec. 930.31  Federal agency activity.

    (a) The term ``Federal agency activity'' means any functions 
performed by or on behalf of a Federal agency in the exercise of its 
statutory responsibilities. This encompasses a wide range of Federal 
agency activities which initiate an event or series of events where 
coastal effects are reasonably foreseeable, e.g., rulemaking, planning, 
physical alteration, exclusion of uses. The term ``Federal agency 
activity'' does not include the issuance of a federal license or permit 
to an applicant or person (see subparts D and E of this part) or the 
granting of federal assistance to an applicant agency (see subpart F of 
this part).
    (b) The term federal ``development project'' means a Federal agency 
activity involving the planning, construction, modification, or removal 
of public works, facilities, or other structures, and the acquisition, 
use, or disposal of any coastal use or resource.
    (c) The Federal agency activity category is a residual category for 
federal actions that are not covered under subparts D, E, or F of this 
part.
    (d) A general permit program proposed by a Federal agency is 
subject to this subpart, unless a Federal agency chooses to subject its 
general permit program to consistency review under subpart D of this 
part. When proposing a general permit program, a Federal agency shall 
provide a consistency determination to the relevant state management 
programs and request that the State agency(ies) provide the Federal 
agency with conditions that would permit the State agency to concur 
with

[[Page 20285]]

the Federal agency's consistency determination. State concurrence 
should remove the need for the State agency to review future case-by-
case uses of the general permit. Federal agencies shall, to the maximum 
extent practicable, incorporate the state conditions into the general 
permit. If the state conditions are not incorporated into the general 
permit or a State agency objects to the general permit, then the 
Federal agency shall notify potential users of the general permit that 
the general permit is not authorized for that state. Accordingly, the 
applicants in those states shall provide the State agency with a 
consistency certification under subpart D of this part.


Sec. 930.32  Consistent to the maximum extent practicable.

    (a)(1) The term ``consistent to the maximum extent practicable'' 
means fully consistent with the enforceable policies of management 
programs unless full consistency is prohibited by existing law 
applicable to the Federal agency.
    (2) Section 307(e) of the Act does not relieve Federal agencies of 
the consistency requirements under the Act. The Act was intended to 
cause substantive changes in Federal agency decisionmaking within the 
context of the discretionary powers residing within such agencies. 
Accordingly, whenever legally permissible, Federal agencies shall 
consider the enforceable policies of state management programs as 
requirements to be adhered to in addition to existing Federal agency 
statutory mandates. If a Federal agency asserts that full consistency 
with the management program is prohibited, it shall clearly describe, 
in writing, to the State agency the statutory provisions, legislative 
history, or other legal authority which limits the Federal agency's 
discretion to be consistent with the enforceable policies of the 
management program.
    (3) For the purpose of determining consistent to the maximum extent 
practicable under paragraphs (a) (1) and (2) of this section, federal 
legal authority includes Federal appropriation Acts if the 
appropriation Act includes language that specifically prohibits full 
consistency with specific enforceable policies of state management 
programs. Federal agencies shall not use a general claim of a lack of 
funding or insufficient appropriated funds or failure to include the 
cost of being fully consistent in Federal budget and planning processes 
as a basis for being consistent to the maximum extent practicable with 
an enforceable policy of a state's management program. The only 
circumstance where a Federal agency may rely on a lack of funding as a 
limitation on being fully consistent with an enforceable policy is the 
Presidential exemption described in section 307(c)(1)(B) of the Act (16 
USC 1456(c)(1)(B)). In cases where the cost of being consistent with 
the enforceable policies of a state's management program was not 
included in the Federal agency's budget and planning processes, the 
Federal agency should determine the amount of funds needed and seek 
additional discretionary federal funds. Federal agencies should include 
the cost of being fully consistent with the enforceable policies of 
state management programs in their budget and planning processes, to 
the same extent that a Federal agency would plan for the cost of 
complying with other federal requirements.
    (b) A Federal agency may deviate from full consistency with an 
approved management program when such deviation is justified because of 
some unforeseen circumstances, e.g., an emergency, arising after the 
approval of the management program which present the Federal agency 
with a substantial obstacle that prevents complete adherence to the 
approved program. Such deviation shall be the minimum necessary to 
address the exigent circumstances. Federal agencies shall carry out 
their activities consistent to the maximum extent practicable with the 
enforceable policies of a state's management program, to the extent 
that the exigent circumstances allow. Federal agencies shall consult 
with State agencies to the extent that an unforeseen circumstance 
allows and shall attempt to seek State agency concurrence within the 
time allowed. This invariably involves a case-by-case evaluation 
conducted by the Federal agency. Once the exigent circumstances have 
passed Federal agencies shall ensure that their activities are 
consistent to the maximum extent practicable with the enforceable 
policies of state management programs.
    (c) A classified activity that affects any coastal use or resource 
is not exempt from the requirements of this subpart, unless the 
activity is exempted by the President under section 307(c)(1)(B) of the 
Act. Under the consistent to the maximum extent practicable standard, 
the Federal agency shall provide to the State agency a description of 
the project and coastal effects that it is legally permitted to release 
or does not otherwise breach the classified nature of the activity. 
Even when a Federal agency may not be able to disclose project 
information, the Federal agency shall conduct the classified activity 
consistent to the maximum extent practicable with the enforceable 
policies of state management programs. The term classified means to 
protect from disclosure national security information concerning the 
national defense or foreign policy, provided that it has been properly 
classified in accordance with the substantive and procedural 
requirements of an executive order.


Sec. 930.33  Identifying Federal agency activities affecting any 
coastal use or resource.

    (a) Federal agencies shall determine which of their activities 
affect any coastal use or resource of states with approved management 
programs.
    (1) Effects are determined by looking at reasonably foreseeable 
direct and indirect effects on any coastal use or resource. An action 
which has minimal environmental effects may still have effects on a 
coastal use (e.g., effects on public access and recreational 
opportunities, protection of historic property) or a coastal resource. 
Therefore, Federal agencies shall, in making a determination of 
effects, review relevant state coastal management program policies as 
part of determining effects on any coastal use or resource.
    (2) If the Federal agency determines that there are no effects on 
any coastal use or resource, and a negative determination under 
Sec. 930.35 is not required, then the Federal agency is not required to 
coordinate with State agencies under section 307 of the Act.
    (3) De minimis Federal agency activities. Federal agencies are 
encouraged to review their activities, other than development projects 
within the coastal zone, to identify de minimis activities, and request 
State agency concurrence that these de minimis activities should not be 
subject to further State agency review. De minimis activities shall 
only be excluded from State agency review if a Federal agency and State 
agency have mutually agreed. The State agency is not required to 
provide for public participation under section 306(d)(14) of the Act 
for the Federal agency's de minimis activity request. If the State 
agency objects to the Federal agency's de minimis finding then the 
Federal agency must provide the State agency with either a negative 
determination or a consistency determination pursuant to this subpart. 
De minimis activities are activities that have coastal effects that are 
trifling in nature and a Federal agency and State agency have mutually 
agreed that the activity is de minimis. OCRM is

[[Page 20286]]

available to facilitate a Federal agency's proposal.
    (4) Environmentally beneficial activities. The State agency and 
Federal agencies may mutually agree to exclude environmentally 
beneficial Federal agency activities (either on a case-by-case basis or 
for a category of activities) from further State agency review.
    (5) General consistency determinations, phased consistency 
determinations, and national or regional consistency determinations 
under Sec. 930.36 are also available to facilitate federal-state 
coordination.
    (b) Federal agencies shall consider all development projects within 
the coastal zone to be activities affecting any coastal use or 
resource. All other types of activities within the coastal zone are 
subject to Federal agency review to determine whether they affect any 
coastal use or resource.
    (c) Federal agency activities and development projects outside of 
the coastal zone are subject to Federal agency review to determine 
whether they affect any coastal use or resource.
    (d) Federal agencies shall construe broadly the effects test to 
provide State agencies with a consistency determination under 
Sec. 930.34 and not a negative determination under Sec. 930.35 or other 
determinations of no effects. Early coordination and cooperation 
between a Federal agency and the State agency can enable the parties to 
focus their efforts on particular Federal agency activities of concern 
to the State agency.


Sec. 930.34  Federal and State agency coordination.

    (a)(1) Federal agencies shall provide State agencies with 
consistency determinations for all Federal agency activities affecting 
any coastal use or resource. To facilitate State agency review, Federal 
agencies should coordinate with the State agency prior to providing the 
determination.
    (2) Use of existing procedures. Federal agencies are encouraged to 
coordinate and consult with State agencies through use of existing 
procedures in order to avoid waste, duplication of effort, and to 
reduce Federal and State agency administrative burdens. Where 
necessary, these existing procedures should be modified to facilitate 
coordination and consultation under the Act.
    (b) Listed activities. State agencies should list in their 
management programs Federal agency activities which, in the opinion of 
the State agency, will have reasonably foreseeable coastal effects and 
therefore, may require a Federal agency consistency determination. 
Listed Federal agency activities shall be described in terms of the 
specific type of activity involved (e.g., federal reclamation 
projects). In the event the State agency chooses to describe Federal 
agency activities with reasonably foreseeable coastal effects outside 
of the coastal zone it shall also describe the geographic location of 
such activities (e.g., reclamation projects in coastal floodplains).
    (c) Unlisted activities. State agencies should monitor unlisted 
Federal agency activities (e.g., by use of intergovernmental review 
process established pursuant to E.O. 12372, review of NEPA documents, 
Federal Register) and should notify Federal agencies of unlisted 
Federal agency activities which Federal agencies have not subjected to 
a consistency review but which, in the opinion of the State agency, 
will have reasonably foreseeable coastal effects and therefore, may 
require a Federal agency consistency determination. The provisions in 
paragraphs (b) and (c) of this section are recommended rather than 
mandatory procedures for facilitating federal-state coordination of 
Federal agency activities which affect any coastal use or resource. 
State agency notification to the Federal agency is neither a substitute 
for nor does it eliminate Federal agency responsibility to comply with 
the consistency requirement, and to provide State agencies with 
consistency determinations for all development projects in the coastal 
zone and for all other Federal agency activities which the Federal 
agency finds affect any coastal use or resource, regardless as to 
whether the State agency has listed the activity or notified the 
Federal agency through case-by-case monitoring.
    (d) State guidance and assistance to Federal agencies. As a 
preliminary matter, a decision that a Federal agency activity affects 
any coastal use or resource should lead to early consultation with the 
State agency (i.e., before the required 90-day period). Federal 
agencies should obtain the views and assistance of the State agency 
regarding the means for determining that the proposed activity will be 
conducted in a manner consistent to the maximum extent practicable with 
the enforceable policies of a state's management program. As part of 
its assistance efforts, the State agency shall make available for 
public inspection copies of the management program document. Upon 
request by the Federal agency, the State agency shall identify any 
enforceable policies applicable to the proposed activity based upon the 
information provided to the State agency at the time of the request.


Sec. 930.35  Negative determinations for proposed activities.

    (a) If a Federal agency determines that there will not be coastal 
effects, then the Federal agency shall provide the relevant State 
agencies with a negative determination for a Federal agency activity:
    (1) Identified by a State agency on its list or through case-by-
case monitoring of unlisted activities; or
    (2) Which is the same as or is similar to activities for which 
consistency determinations have been prepared in the past.
    (b) Content of a negative determination. A negative determination 
may be submitted to State agencies in any written form so long as it 
contains a brief description of the activity, the activity's location 
and the basis for the Federal agency's determination that the activity 
will not affect any coastal use or resource. In determining effects 
Federal agencies shall follow Sec. 930.33(a)(1), including an 
evaluation of the relevant enforceable policies of a state's management 
program and include the evaluation in the negative determination. The 
level of detail in the Federal agency's analysis may vary depending on 
the scope and complexity of the activity and issues raised by the State 
agency, but shall be sufficient for the State agency to evaluate 
whether coastal effects are reasonably foreseeable.
    (c) A negative determination under paragraph (a) of this section 
shall be provided to the State agency at least 90 days before final 
approval of the activity, unless both the Federal agency and the State 
agency agree to an alternative notification schedule. If a State agency 
fails to respond to a Federal agency's negative determination within 60 
days, State agency concurrence with the negative determination shall be 
presumed. State agency concurrence shall not be presumed in cases where 
the State agency, within the 60-day period, requests an extension of 
time to review the matter. Federal agencies shall approve one request 
for an extension period of 15 days or less. If a State agency objects 
to a negative determination, asserting that coastal effects are 
reasonably foreseeable, the Federal agency shall consider submitting a 
consistency determination to the State agency or otherwise attempt to 
resolve any disagreement within the remainder of the 90-day period. If 
a Federal agency, in response to a State agency's objection to a 
negative determination, agrees that coastal effects are reasonably 
foreseeable, the State agency and Federal agency should

[[Page 20287]]

attempt to agree to complete the consistency review within the 90-day 
period for the negative determination or consider an alternative 
schedule pursuant to Sec. 930.36(b)(1). Federal agencies should 
postpone final Federal agency action, beyond the 90-day period, until a 
disagreement has been resolved. State agencies are not required to 
provide public notice of the receipt of a negative determination or the 
resolution of an objection to a negative determination, unless a 
Federal agency submits a consistency determination pursuant to 
Sec. 930.34 and a new 90-day review period is started.
    (d) In the event of a serious disagreement between a Federal agency 
and a State agency regarding a determination related to whether a 
proposed activity affects any coastal use or resource, either party may 
seek the Secretarial mediation or OCRM informal negotiation services 
provided for in subpart G of this part.


Sec. 930.36  Consistency determinations for proposed activities.

    (a) Federal agencies shall review their proposed Federal agency 
activities which affect any coastal use or resource in order to develop 
consistency determinations which indicate whether such activities will 
be undertaken in a manner consistent to the maximum extent practicable 
with the enforceable policies of approved state management programs. 
Federal agencies should consult with State agencies at an early stage 
in the development of the proposed activity in order to assess whether 
such activities will be consistent to the maximum extent practicable 
with the enforceable policies of such programs.
    (b) Timing of consistency determinations. (1) Federal agencies 
shall provide State agencies with a consistency determination at the 
earliest practicable time in the planning or reassessment of the 
activity. A consistency determination should be prepared following 
development of sufficient information to determine reasonably the 
consistency of the activity with the state's management program, but 
before the Federal agency reaches a significant point of decisionmaking 
in its review process, i.e., while the Federal agency has the ability 
to modify the activity. The consistency determination shall be provided 
to State agencies at least 90 days before final approval of the Federal 
agency activity unless both the Federal agency and the State agency 
agree to an alternative notification schedule.
    (2) Federal and State agencies may mutually agree upon procedures 
for extending the notification requirement beyond 90 days for 
activities requiring a substantial review period, and for shortening 
the notification period for activities requiring a less extensive 
review period, provided that public participation requirements are met.
    (c) General consistency determinations. In cases where Federal 
agencies will be performing repeated activity other than a development 
project (e.g., ongoing maintenance, waste disposal) which cumulatively 
has an effect upon any coastal use or resource, the Federal agency may 
develop a general consistency determination, thereby avoiding the 
necessity of issuing separate consistency determinations for each 
incremental action controlled by the major activity. A Federal agency 
may provide a State agency with a general consistency determination 
only in situations where the incremental actions are repetitive and do 
not affect any coastal use or resource when performed separately. A 
Federal agency and State agency may mutually agree on a general 
consistency determination for de minimis activities (see 
Sec. 930.33(a)(3)) or any other repetitive activity or category of 
activity(ies). If a Federal agency issues a general consistency 
determination, it must thereafter periodically consult with the State 
agency to discuss the manner in which the incremental actions are being 
undertaken.
    (d) Phased consistency determinations. In cases where the Federal 
agency has sufficient information to determine the consistency of a 
proposed development project or other activity from planning to 
completion, the Federal agency shall provide the State agency with one 
consistency determination for the entire activity or development 
project. In cases where major federal decisions related to a proposed 
development project or other activity will be made in phases based upon 
developing information that was not available at the time of the 
original consistency determination, with each subsequent phase subject 
to Federal agency discretion to implement alternative decisions based 
upon such information (e.g., planning, siting, and design decisions), a 
consistency determination will be required for each major decision. In 
cases of phased decisionmaking, Federal agencies shall ensure that the 
development project or other activity continues to be consistent to the 
maximum extent practicable with the state's management program.
    (e) National or regional consistency determinations. (1) A Federal 
agency may provide states with consistency determinations for Federal 
agency activities that are national or regional in scope (e.g., 
rulemaking, national plans), and that affect any coastal use or 
resource of more than one state. Many states share common coastal 
management issues and have similar enforceable policies, e.g., 
protection of a particular coastal resource. The Federal agency's 
national or regional consistency determination should, at a minimum, 
address the common denominator of these policies, i.e., the common 
coastal effects and management issues, and thereby address different 
states' policies with one discussion and determination. If a Federal 
agency decides not to use this section, it must issue consistency 
determinations to each coastal state pursuant to Sec. 930.39.
    (2) Federal agencies shall be consistent to the maximum extent 
practicable with the enforceable policies of each state's management 
program. Thus, the Federal agency's national or regional consistency 
determination shall contain, if necessary, sections that would apply to 
individual states to address coastal effects and enforceable policies 
unique to particular states. Early coordination with coastal states 
will enable the Federal agency to identify particular coastal 
management concerns and policies. In addition, the Federal agency could 
address the concerns of each affected state by providing for state 
conditions for the proposed activity. Further, the consistency 
determination could identify the coordination efforts and describe how 
the Federal agency responded to State agency concerns.


Sec. 930.37  Consistency determinations and National Environmental 
Policy Act (NEPA) requirements.

    A Federal agency may use its NEPA documents as a vehicle for its 
consistency determination or negative determination under this subpart. 
However, a Federal agency's federal consistency obligations under the 
Act are independent of those required under NEPA and are not 
necessarily fulfilled by the submission of a NEPA document. If a 
Federal agency includes its consistency determination or negative 
determination in a NEPA document, the Federal agency shall ensure that 
the NEPA document includes the information and adheres to the 
timeframes required by this subpart. Federal agencies and State 
agencies should mutually agree on how to best coordinate the 
requirements of NEPA and the Act.

[[Page 20288]]

Sec. 930.38  Consistency determinations for activities initiated prior 
to management program approval.

    (a) A consistency determination is required for ongoing Federal 
agency activities other than development projects initiated prior to 
management program approval, which are governed by statutory authority 
under which the Federal agency retains discretion to reassess and 
modify the activity. In these cases the consistency determination must 
be made by the Federal agency at the earliest practicable time 
following management program approval, and the State agency must be 
provided with a consistency determination no later than 120 days after 
management program approval for ongoing activities which the State 
agency lists or identifies through monitoring as subject to consistency 
with the management program.
    (b) A consistency determination is required for major, phased 
federal development project decisions described in Sec. 930.36(d) which 
are made following management program approval and are related to 
development projects initiated prior to program approval. In making 
these new decisions, Federal agencies shall consider effects on any 
coastal use or resource not fully evaluated at the outset of the 
project. This provision shall not apply to phased federal decisions 
which were specifically described, considered and approved prior to 
management program approval (e.g., in a final environmental impact 
statement issued pursuant to NEPA).


Sec. 930.39  Content of a consistency determination.

    (a) The consistency determination shall include a brief statement 
indicating whether the proposed activity will be undertaken in a manner 
consistent to the maximum extent practicable with the enforceable 
policies of the management program. The statement must be based upon an 
evaluation of the relevant enforceable policies of the management 
program. A description of this evaluation shall be included in the 
consistency determination. The consistency determination shall also 
include a detailed description of the activity, its associated 
facilities, and their coastal effects, and comprehensive data and 
information sufficient to support the Federal agency's consistency 
statement. The amount of detail in the evaluation of the enforceable 
policies, activity description and supporting information shall be 
commensurate with the expected coastal effects of the activity. The 
Federal agency may submit the necessary information in any manner it 
chooses so long as the requirements of this subpart are satisfied.
    (b) Federal agencies shall be guided by the following in making 
their consistency determinations. The activity, its effects on any 
coastal use or resource, associated facilities (e.g., proposed siting 
and construction of access road, connecting pipeline, support 
buildings), and the effects of the associated facilities (e.g., 
erosion, wetlands, beach access impacts), must all be consistent to the 
maximum extent practicable with the enforceable policies of the 
management program.
    (c) In making their consistency determinations, Federal agencies 
shall ensure that their activities are consistent to the maximum extent 
practicable with the enforceable policies of the management program. 
However, Federal agencies should give adequate consideration to 
management program provisions which are in the nature of 
recommendations.
    (d) When Federal agency standards are more restrictive than 
standards or requirements contained in the state's management program, 
the Federal agency may continue to apply its stricter standards. In 
such cases the Federal agency shall inform the State agency in the 
consistency determination of the statutory, regulatory or other basis 
for the application of the stricter standards.
    (e) State permit requirements. Federal law, other than the CZMA, 
may require a Federal agency to obtain a state permit. Even when 
Federal agencies are not required to obtain state permits, Federal 
agencies shall still be consistent to the maximum extent practicable 
with the enforceable policies that are contained in such state permit 
programs that are part of a state's management program.


Sec. 930.40  Multiple Federal agency participation.

    Whenever more than one Federal agency is involved in a Federal 
agency activity or its associated facilities affecting any coastal use 
or resource, or is involved in a group of Federal agency activities 
related to each other because of their geographic proximity, the 
Federal agencies may prepare one consistency determination for all the 
federal activities involved. In such cases, Federal agencies should 
consider joint preparation or lead agency development of the 
consistency determination. In either case, the consistency 
determination shall be transmitted to the State agency at least 90 days 
before final decisions are taken by any of the participating agencies 
and shall comply with the requirements of Sec. 930.39.


Sec. 930.41  State agency response.

    (a) A State agency shall inform the Federal agency of its 
concurrence with or objection to the Federal agency's consistency 
determination at the earliest practicable time, after providing for 
public participation in the State agency's review of the consistency 
determination. The Federal agency may presume State agency concurrence 
if the State agency's response is not postmarked within 60 days from 
receipt of the Federal agency's consistency determination and 
supporting information. The 60-day review period begins when the State 
agency receives the consistency determination and supporting 
information required by Sec. 930.39(a). If the information required by 
Sec. 930.39(a) is not included with the determination, the State agency 
shall immediately notify the Federal agency that the 60-day review 
period has not begun, what information required by Sec. 930.39(a) is 
missing, and that the 60-day review period will begin when the missing 
information is received by the State agency.
    (b) State agency concurrence shall not be presumed in cases where 
the State agency, within the 60-day period, requests an extension of 
time to review the matter. Federal agencies shall approve one request 
for an extension period of 15 days or less. In considering whether a 
longer or additional extension period is appropriate, the Federal 
agency should consider the magnitude and complexity of the information 
contained in the consistency determination.
    (c) Final Federal agency action shall not be taken sooner than 90 
days from the receipt by the State agency of the consistency 
determination unless the state concurs or concurrence is presumed, 
pursuant to paragraphs (a) and (b) of this section, with the activity, 
or unless both the Federal agency and the State agency agree to an 
alternative period.
    (d) Time limits on concurrences. A State agency cannot unilaterally 
place a time limit on its concurrence. If a State agency believes that 
a time limit is necessary, states and Federal agencies may agree to a 
time limit. If there is no agreement, later phases of the activity that 
will have effects not evaluated at the time of the original consistency 
determination will require either a new consistency determination or a 
phased review under Sec. 930.36(c) of this subpart.
    (e) State processing fees. The Act does not require Federal 
agencies to pay state processing fees. State agencies shall not

[[Page 20289]]

assess a Federal agency with a fee to process the Federal agency's 
consistency determination unless payment of such fees is required by 
other federal law or otherwise agreed to by the Federal agency and 
allowed by the Comptroller General of the United States. In no case may 
a State agency stay the consistency timeclock or base its objection on 
the failure of a Federal agency to pay a fee.


Sec. 930.42  Public participation.

    (a) State coastal management programs shall provide for public 
participation in the State agency's review of consistency 
determinations. Public participation, at a minimum, shall consist of 
public notice in the area(s) of the coastal zone likely to be affected 
by the activity, as determined by the State agency.
    (b) Timing of public notice. States shall provide timely public 
notice after the consistency determination has been received by the 
State agency, except in cases where earlier public notice on the 
consistency determination by the Federal agency or the State agency 
meets the requirements of this section. A public comment period shall 
be provided by the state sufficient to give the public an opportunity 
to develop and provide comments on whether the project is consistent 
with management program enforceable policies and still allow the State 
agency to issue its concurrence or objection within the 60 day state 
response period.
    (c) Content of public notice. The public notice shall:
    (1) Specify that the proposed activity is subject to review for 
consistency with the enforceable policies of the state coastal 
management program;
    (2) Provide sufficient information to serve as a basis for comment;
    (3) Specify a source for additional information; and
    (4) Specify a contact for submitting comments to the State agency.
    (d) Procedural options that may be used by the State agency for 
issuance of public notice include, but are not limited to, public 
notice through an official state gazette, a local newspaper serving 
areas of coastal zone likely to be affected by the activity, individual 
state mailings, and public notice through a state coastal management 
newsletter. States shall not require that the Federal agency provide 
public notice.


Sec. 930.43  State agency objection.

    (a) In the event the State agency objects to the Federal agency's 
consistency determination, the State agency shall accompany its 
response to the Federal agency with its reasons for the objection and 
supporting information. The State agency response must describe:
    (1) How the proposed activity will be inconsistent with specific 
enforceable policies of the management program; and
    (2) The specific enforceable policies (including citations);
    (3) The State agency should also describe alternative measures (if 
they exist) which, if adopted by the Federal agency, would allow the 
activity to proceed in a manner consistent to the maximum extent 
practicable with the enforceable policies of the management program. 
Failure to describe alternatives does not affect the validity of the 
State agency's objection.
    (b) If the State agency's objection is based upon a finding that 
the Federal agency has failed to supply sufficient information the 
State agency's response must describe the nature of the information 
requested and the necessity of having such information to determine the 
consistency of the Federal agency activity with the enforceable 
policies of the management program.
    (c) State agencies shall send to the Director a copy of objections 
to Federal agency consistency determinations.
    (d) In the event of an objection, Federal and State agencies should 
use the remaining portion of the 90-day notice period (see 
Sec. 930.36(b)) to attempt to resolve their differences. If resolution 
has not been reached at the end of the 90-day period Federal agencies 
should use the dispute resolution mechanisms of this part and postpone 
final federal action until the problems have been resolved. At the end 
of the 90-day period the Federal agency shall not proceed with the 
activity over a State agency's objection unless consistency with the 
enforceable policies of the management program cannot be achieved under 
the ``consistent to the maximum extent practicable'' standard described 
in Sec. 930.32, and the Federal agency clearly describes, in writing, 
to the State agency the legal impediments to full consistency (see 
Sec. 930.32(a)). In cases where the Federal agency asserts that it is 
fully consistent with the enforceable policies of the management 
program, but the State agency asserts that the Federal agency is not 
fully consistent, the Federal agency shall be consistent to the maximum 
extent practicable with the State agency's interpretation, pursuant to 
Secs. 930.11(h) and 930.32. If a Federal agency decides to proceed with 
a Federal agency activity that is consistent to the maximum extent 
practicable, but is objected to by a State agency or follow an 
alternative suggested by the State agency, the Federal agency shall 
notify the State agency of its decision to proceed before the project 
commences.


Sec. 930.44  Availability of mediation for disputes concerning proposed 
activities.

    In the event of a serious disagreement between a Federal agency and 
a State agency regarding the consistency of a proposed federal activity 
affecting any coastal use or resource, either party may request the 
Secretarial mediation or OCRM informal negotiation services provided 
for in subpart G of this part.


Sec. 930.45  Availability of mediation for previously reviewed 
activities.

    (a) Federal and State agencies shall cooperate in their efforts to 
monitor federally approved activities in order to make certain that 
such activities continue to be undertaken in a manner consistent to the 
maximum extent practicable with the enforceable policies of the state's 
management program.
    (b) The State agency may request that the Federal agency take 
appropriate remedial action following a serious disagreement resulting 
from a Federal agency activity, including those activities where the 
State agency's concurrence was presumed, which was:
    (1) Previously determined to be consistent to the maximum extent 
practicable with the state's management program, but which the State 
agency later maintains is being conducted or is having an effect on any 
coastal use or resource substantially different than originally 
described and, as a result, is no longer consistent to the maximum 
extent practicable with the enforceable policies of the state's 
management program; or
    (2) Previously determined not to be a Federal agency activity 
affecting any coastal use or resource, but which the State agency later 
maintains is being conducted or is having an effect on any coastal use 
or resource substantially different than originally described and, as a 
result, the activity affects any coastal use or resource and is not 
consistent to the maximum extent practicable with the enforceable 
policies of the state's management program. The State agency's request 
shall include supporting information and a proposal for recommended 
remedial action.
    (c) If, after a reasonable time following a request for remedial 
action, the State agency still maintains that a serious disagreement 
exists, either party may request the Secretarial mediation or OCRM 
informal negotiation services provided for in subpart G of this part.

[[Page 20290]]

Sec. 930.46  Supplemental coordination for proposed activities.

    (a) For proposed Federal agency activities that were previously 
determined by the State agency to be consistent with the state's 
management program, but which have not yet begun, Federal agencies 
shall further coordinate with the State agency and prepare a 
supplemental consistency determination if the proposed activity will 
affect any coastal use or resource substantially differently than 
originally described. Substantially different coastal effects are 
reasonably foreseeable if:
    (1) The Federal agency makes substantial changes in the proposed 
activity that are relevant to state coastal management enforceable 
policies; or
    (2) There are significant new circumstances or information relevant 
to the proposed activity and the proposed activity's effect on any 
coastal use or resource.
    (b) The State agency may notify the Federal agency and the Director 
of proposed activities which the State agency believes should be 
subject to supplemental coordination. The State agency's notification 
shall include information supporting a finding of substantially 
different coastal effects than originally described and the relevant 
enforceable policies, and may recommend modifications to the proposed 
activity (if any) that would allow the Federal agency to implement the 
proposed activity consistent with the enforceable policies of the 
state's management program. State agency notification under this 
paragraph (b) does not remove the requirement under paragraph (a) of 
this section for Federal agencies to notify State agencies.

Subpart D--Consistency for Activities Requiring a Federal License 
or Permit


Sec. 930.50  Objectives.

    The provisions of this subpart are intended to assure that any 
required federal license or permit activity affecting any coastal use 
or resource is conducted in a manner consistent with approved 
management programs. The provisions of subpart I of this part are 
intended to supplement the provisions of this subpart for federal 
license or permit activities having interstate coastal effects.


Sec. 930.51  Federal license or permit.

    (a) The term ``federal license or permit'' means any required 
authorization, certification, approval, lease, or other form of 
permission which any Federal agency is empowered to issue to an 
applicant. The term ``lease,'' means a lease issued by a Federal agency 
to a non-federal entity that authorizes or approves the use of federal 
property for a non-federal activity and where no other federal license, 
permit, authorization or other form of approval, is required. The term 
lease does not include lease sales conducted by a Federal agency (e.g., 
outer continental shelf (OCS) oil and gas lease sales conducted by the 
Minerals Management Service or oil and gas lease sales conducted by the 
Bureau of Land Management). Lease sales conducted by a Federal agency 
are Federal agency activities under subpart C of this part if coastal 
effects are reasonably foreseeable (subpart E of this part addresses 
activities described in detail in OCS plans).
    (b) The term also includes the following types of renewals and 
major amendments which affect any coastal use or resource:
    (1) Renewals and major amendments of federal license or permit 
activities not previously reviewed by the State agency;
    (2) Renewals and major amendments of federal license or permit 
activities previously reviewed by the State agency which are filed 
after and are subject to management program changes not in existence at 
the time of original State agency review; and
    (3) Renewals and major amendments of federal license or permit 
activities previously reviewed by the State agency which will cause 
coastal zone an effect on any coastal use or resource substantially 
different than those originally reviewed by the State agency.
    (c) The term ``major amendment'' of a federal license or permit 
activity means any subsequent federal approval that the applicant is 
required to obtain for modification to the previously reviewed and 
approved activity and where the activity permitted by issuance of the 
subsequent approval will affect any coastal use or resource in a way 
that is substantially different than the description or understanding 
of effects at the time of the original activity.
    (d) The term ``renewals'' of a federal license or permit activity 
means any subsequent re-issuance, re-approval or extension of an 
existing license or permit that the applicant is required to obtain for 
an activity described under paragraph (b) of this section.
    (e) The determination of substantially different coastal effects 
under paragraphs (b)(3) and (c) of this section is made on a case-by-
case basis by the State agency, Federal agency and applicant. The 
opinion of the State agency shall be accorded deference and the terms 
``major amendment,'' ``renewals'' and ``substantially different'' shall 
be construed broadly to ensure that the State agency has the 
opportunity to review activities and coastal effects not previously 
reviewed.
    (f) This subpart applies to active applications. If an applicant 
withdraws its application to the Federal agency, then the consistency 
process is terminated. If the applicant reapplies to the Federal 
agency, then a new consistency review process will start. If a Federal 
agency stops or stays the Federal license or permit application 
process, then the consistency review period will be stopped or stayed 
for the same amount of time as for the Federal application process.


Sec. 930.52  Applicant.

    The term ``applicant'' means any individual, public or private 
corporation, partnership, association, or other entity organized or 
existing under the laws of any nation, state, or any state, regional, 
or local government, who, following management program approval, either 
files an application for a required individual federal license or 
permit, or who files a consistency certification for a required general 
federal license or permit under Sec. 930.31(e) to conduct an activity 
affecting any coastal use or resource. The term ``applicant'' does not 
include Federal agencies applying for federal licenses or permits. 
Federal agency activities requiring federal licenses or permits are 
subject to subpart C of this part.


Sec. 930.53  Listed federal license or permit activities.

    (a) State agencies shall develop a list of federal license or 
permit activities which affect any coastal use or resource, including 
reasonably foreseeable effects, and which the State agency wishes to 
review for consistency with the management program. The list shall be 
included as part of the management program, and the federal license or 
permit activities shall be described in terms of the specific licenses 
or permits involved (e.g., Corps of Engineers 404 permits, Coast Guard 
bridge permits). In the event the State agency chooses to review 
federal license or permit activities, with reasonably foreseeable 
coastal effects, outside of the coastal zone, it must generally 
describe the geographic location of such activities.
    (1) The geographic location description should encompass areas 
outside of the coastal zone where coastal effects from federal license 
or permit activities are reasonably foreseeable. The State agency 
should exclude geographic areas outside of the

[[Page 20291]]

coastal zone where coastal effects are not reasonably foreseeable. 
Listed activities may have different geographic location descriptions, 
depending on the nature of the activity and its coastal effects. For 
example, the geographic location for activities affecting water 
resources or uses could be described by shared water bodies, river 
basins, boundaries defined under the state's coastal nonpoint pollution 
control program, or other ecologically identifiable areas. Federal 
lands located within the boundaries of a state's coastal zone are 
automatically included within the geographic location description; 
State agencies do not have to describe these areas. State agencies do 
have to describe the geographic location of listed activities occurring 
on federal lands located beyond the boundaries of a state's coastal 
zone.
    (2) For listed activities occurring outside of the coastal zone for 
which a state has not generally described the geographic location of 
review, states must follow the conditions for review of unlisted 
activities under Sec. 930.54 of this subpart.
    (b) General concurrences for minor activities. To avoid repeated 
review of minor federal license or permit activities which, while 
individually inconsequential, cumulatively affect any coastal use or 
resource, the State agency, after developing conditions allowing 
concurrence for such activities, may issue a general public notice (see 
Sec. 930.61) and general concurrence allowing similar minor work in the 
same geographic area to proceed without prior State agency review. In 
such cases, the State agency must set forth in the management program 
license and permit list the minor federal license or permit activities 
and the relevant conditions which are covered by the general 
concurrence. Minor federal license or permit activities which satisfy 
the conditions of the general concurrence are not subject to the 
consistency certification requirement of this subpart. Except in cases 
where the State agency indicates otherwise, copies of federal license 
or permit applications for activities subject to a general concurrence 
must be sent by the applicant to the State agency to allow the State 
agency to monitor adherence to the conditions required by such 
concurrence. Confidential and proprietary material within such 
applications may be deleted.
    (c) The license and permit list may be amended by the State agency 
following consultation with the affected Federal agency and approval by 
the Director pursuant to the program change requirements found at 15 
CFR part 923, subpart H.
    (1) Consultation with the affected Federal agency means, at least 
60 days prior to submitting a program change request to OCRM, a State 
agency shall notify in writing the relevant regional or field Federal 
agency staff and the head of the affected Federal agency, and request 
comments on the listing change. The notification should describe the 
proposed change and identify the regional Federal agency staff the 
state has contacted for consultation.
    (2) A state must include in its program change request to OCRM a 
description of any comments received from the affected Federal agency.
    (d) No federal license or permit described on an approved list 
shall be issued by a Federal agency until the requirements of this 
subpart have been satisfied. Federal agencies shall inform applicants 
for listed licenses or permits of the requirements of this subpart.


Sec. 930.54  Unlisted federal license or permit activities.

    (a)(1) With the assistance of Federal agencies, State agencies 
should monitor unlisted federal license or permit activities (e.g., by 
use of intergovernmental review process established pursuant to E.O. 
12372, review of NEPA documents, Federal Register notices). State 
agencies shall notify Federal agencies, applicants, and the Director of 
unlisted activities affecting any coastal use or resource which require 
State agency review within 30 days from notice of the license or permit 
application, otherwise the State agency waives its right to review the 
unlisted activity. The waiver does not apply in cases where the State 
agency does not receive notice of the federal license or permit 
application.
    (2) Federal agencies or applicants should provide written notice of 
unlisted activities to the State agency. Notice to the State agency may 
be constructive if notice is published in an official federal public 
notification document or through an official state clearinghouse (i.e., 
the Federal Register, draft or final NEPA EISs that are submitted to 
the State agency, or a state's intergovernmental review process). The 
notice, whether actual or constructive, shall contain sufficient 
information for the State agency to learn of the activity, determine 
the activity's geographic location, and determine whether coastal 
effects are reasonably foreseeable.
    (b) The State agency's notification shall also request the 
Director's approval to review the unlisted activity and shall contain 
an analysis that supports the State agency's assertion that coastal 
effects are reasonably foreseeable. Following State agency notification 
to the Federal agency, applicant and the Director, the Federal agency 
shall not issue the license or permit until the requirements of this 
subpart have been satisfied, unless the Director disapproves the State 
agency's request to review the activity.
    (c) The Federal agency and the applicant have 15 days from receipt 
of the State agency notice to provide comments to the Director 
regarding the State agency's request to review the activity. The sole 
basis for the Director's approval or disapproval of the State agency's 
request will relate to whether the proposed activity's coastal effects 
are reasonably foreseeable. The Director shall issue a decision, with 
supporting comments, to the State agency, Federal agency and applicant 
within 30 days from receipt of the State agency notice. The Director 
may extend the decision deadline beyond 30 days due to the complexity 
of the issues or to address the needs of the State agency, the Federal 
agency, or the applicant. The Director shall notify the relevant 
parties of the expected length of an extension.
    (d) If the Director disapproves the State agency's request, the 
Federal agency may approve the license or permit application and the 
applicant need not comply with the requirements of this subpart. If the 
Director approves the State agency's request, the Federal agency and 
applicant must comply with the consistency certification procedures of 
this subpart.
    (e) Following an approval by the Director, the applicant shall 
amend the federal application by including a consistency certification 
and shall provide the State agency with a copy of the certification 
along with necessary data and information (see Secs. 930.58, 930.62 and 
930.63). For the purposes of this section, concurrence by the State 
agency shall be conclusively presumed in the absence of a State agency 
objection within six months from the original Federal agency notice to 
the State agency (see paragraph (a) of this section) or within three 
months from receipt of the applicant's consistency certification and 
necessary data and information, whichever period terminates last.
    (f) The unlisted activity procedures in this section are provided 
to ensure that State agencies are afforded an opportunity to review 
federal license or permit activities with reasonably foreseeable 
coastal effects. Prior to bringing the issue before the Director, the 
concerned parties should discuss coastal effects and consistency. The

[[Page 20292]]

applicant can avoid delay by simply seeking the State agency's 
expeditious concurrence rather than waiting for the Director's 
decision. If an applicant, of its own accord or after negotiations with 
the State agency, provides a consistency certification and necessary 
data and information to the State agency, the review shall be deemed to 
have received the Director's approval, and all of the provisions of 
this subpart shall apply and the State agency need not request the 
Director's approval. If an applicant for an unlisted activity has not 
subjected itself to the consistency process within the 30 day 
notification period contained in paragraph (a) of this section, the 
State agency must adhere to the unlisted activity review requirements 
of this section to preserve its right to review the activity.


Sec. 930.55  Availability of mediation for license or permit disputes.

    In the event of a serious disagreement between a Federal and State 
agency regarding whether a listed or unlisted federal license or permit 
activity is subject to the federal consistency requirement, either 
party may request the informal negotiation or Secretarial mediation 
services provided for in subpart G of this part; notice shall be 
provided to the applicant. The existence of a serious disagreement will 
not relieve the Federal agency from the responsibility for withholding 
approval of a license or permit application for an activity on an 
approved management program list (see Sec. 930.53) or individually 
approved by the Director (see Sec. 930.54) pending satisfaction of the 
requirements of this subpart. Similarly, the existence of a serious 
disagreement will not prevent the Federal agency from approving a 
license or permit activity which has not received Director approval.


Sec. 930.56  State agency guidance and assistance to applicants.

    As a preliminary matter, any applicant for a federal license or 
permit selected for review by a State agency should obtain the views 
and assistance of the State agency regarding the means for ensuring 
that the proposed activity will be conducted in a manner consistent 
with the state's management program. As part of its assistance efforts, 
the State agency shall make available for public inspection copies of 
the management program document. Upon request by the applicant, the 
State agency shall identify any enforceable policies applicable to the 
proposed activity, based upon the information submitted to the State 
agency.


Sec. 930.57  Consistency certifications.

    (a) Following appropriate coordination and cooperation with the 
State agency, all applicants for required federal licenses or permits 
subject to State agency review shall provide in the application to the 
federal licensing or permitting agency a certification that the 
proposed activity complies with and will be conducted in a manner 
consistent with the state's approved management program. At the same 
time, the applicant shall furnish to the State agency a copy of the 
certification and necessary data and information.
    (b) The applicant's consistency certification shall be in the 
following form: ``The proposed activity complies with the enforceable 
policies of (name of state) approved coastal management program and 
will be conducted in a manner consistent with such program.''


Sec. 930.58  Necessary data and information.

    (a) The applicant shall furnish the State agency with necessary 
data and information along with the consistency certification. Such 
information and data shall include the following:
    (1) A detailed description of the proposed activity, its associated 
facilities, the coastal effects, and comprehensive data and information 
sufficient to support the applicant's consistency certification. Maps, 
diagrams, technical data and other relevant material shall be submitted 
when a written description alone will not adequately describe the 
proposal (a copy of the federal application and all supporting material 
provided to the Federal agency should also be submitted to the State 
agency);
    (2) Information specifically identified in the state's management 
program as required necessary data and information for an applicant's 
consistency certification. The management program as originally 
approved or amended (pursuant to 15 CFR part 923, subpart H) may 
describe data and information necessary to assess the consistency of 
federal license or permit activities. Necessary data and information 
may include state or local government permits or permit applications 
which are required for the proposed activity. Required data and 
information may not include confidential and proprietary material; and
    (3) An evaluation that includes a set of findings relating the 
coastal effects of the proposal and its associated facilities to the 
relevant enforceable policies of the management program. Applicants 
shall be consistent with the enforceable policies of the management 
program. Applicants shall demonstrate adequate consideration of 
policies which are in the nature of recommendations. Applicants need 
not make findings with respect to coastal effects for which the 
management program does not contain enforceable or recommended 
policies.
    (b) At the request of the applicant, interested parties who have 
access to information and data required by this section may provide the 
State agency with all or part of the material required. Furthermore, 
upon request by the applicant, the State agency shall provide 
assistance for developing the assessment and findings required by this 
section.
    (c) When satisfied that adequate protection against public 
disclosure exists, applicants should provide the State agency with 
confidential and proprietary information which the State agency 
maintains is necessary to make a reasoned decision on the consistency 
of the proposal. State agency requests for such information must be 
related to the necessity of having such information to assess 
adequately the coastal effects of the proposal.


Sec. 930.59  Multiple permit review.

    (a) Applicants shall, to the extent practicable, consolidate 
related federal license or permit activities affecting any coastal use 
or resource for State agency review. State agencies shall, to the 
extent practicable, provide applicants with a ``one-stop'' multiple 
permit review for consolidated permits to minimize duplication of 
effort and to avoid unnecessary delays.
    (b) A State agency objection to one or more of the license or 
permit activities submitted for consolidated review shall not prevent 
the applicant from receiving Federal agency approval for those license 
or permit activities found to be consistent with the management 
program.


Sec. 930.60  Commencement of State agency review.

    (a) Except as provided in Sec. 930.54(e) and paragraph (a)(1) of 
this section, State agency review of an applicant's consistency 
certification begins at the time the State agency receives a copy of 
the consistency certification, and the information and data required 
pursuant to Sec. 930.58.
    (1) If an applicant fails to submit a consistency certification in 
accordance with Sec. 930.57, or fails to submit necessary data and 
information required pursuant to Sec. 930.58, the State agency shall, 
within 30 days of receipt of the incomplete information, notify the 
applicant and the Federal agency of the certification or information 
deficiencies, and that:
    (i) The State agency's review has not yet begun, and that its 
review will

[[Page 20293]]

commence once the necessary certification or information deficiencies 
have been corrected; or
    (ii) The State agency's review has begun, and that the 
certification or information deficiencies must be cured by the 
applicant during the state's review period.
    (2) Under paragraph (a)(1) of this section, State agencies shall 
notify the applicant and the Federal agency, within 30 days of receipt 
of the completed certification and information, of the date when 
necessary certification or information deficiencies have been 
corrected, and that the State agency's consistency review commenced on 
the date that the complete certification and necessary data and 
information were received by the State agency.
    (3) State agencies and applicants (and persons under subpart E of 
this part) may mutually agree to stay the consistency timeclock or 
extend the six-month review period. Such an agreement shall be in 
writing and shall be provided to the Federal agency. A Federal agency 
shall not presume State agency concurrence with an activity where such 
an agreement exists or where a State agency's review period, under 
paragraph (a)(1)(i) of this section, has not begun.
    (b) A State agency request for information or data in addition to 
that required by Sec. 930.58 shall not extend the date of commencement 
of State agency review.


Sec. 930.61  Public participation.

    (a) Following receipt of the material described in Sec. 930.60 the 
State agency shall ensure timely public notice of the proposed 
activity. Public notice shall be provided in the area(s) of the coastal 
zone likely to be affected by the proposed activity, as determined by 
the State agency. At the discretion of the State agency, public 
participation may include one or more public hearings. State agencies 
should restrict the period of public notice, receipt of comments, 
hearing proceedings and final decision-making to the minimum time 
necessary to inform the public, obtain sufficient comment, and develop 
a reasonable decision on the matter.
    (b) Content of public notice. The public notice shall:
    (1) Specify that the proposed activity is subject to review for 
consistency under the policies of the state management program;
    (2) Provide sufficient information to serve as a basis for comment;
    (3) Specify a source for additional information; and
    (4) Specify a contact for submitting comments to the state coastal 
management program.
    (c) Procedural options that may be used by the State agency for 
issuance of public notice include, but are not limited to, public 
notice through an official state gazette, a local newspaper serving 
areas of the coastal zone likely to be affected by the activity, 
individual state mailings, and public notice through a state coastal 
management newsletter. The State agency may require the applicant to 
provide the public notice. State agencies shall not require that the 
Federal agency provide public notice. The State agency may rely upon 
the public notice provided by the Federal agency reviewing the 
application for the federal license or permit (e.g., notice of 
availability of NEPA documents) if such notice satisfies the minimum 
requirements set forth in paragraphs (a) and (b) of this section.
    (d) Federal and State agencies are encouraged to issue joint public 
notices, and hold joint public hearings, whenever possible to minimize 
duplication of effort and to avoid unnecessary delays.


Sec. 930.62  State agency concurrence with a consistency certification.

    (a) At the earliest practicable time, the State agency shall notify 
the Federal agency and the applicant whether the State agency concurs 
with or objects to a consistency certification. The State agency may 
issue a general concurrence for minor activities (see Sec. 930.53(b)). 
Concurrence by the State agency shall be conclusively presumed if the 
State agency's response is not postmarked within six months following 
commencement of State agency review.
    (b) If the State agency has not issued a decision within three 
months following commencement of State agency review, it shall notify 
the applicant and the Federal agency of the status of the matter and 
the basis for further delay.
    (c) If the State agency issues a concurrence or is conclusively 
presumed to concur with the applicant's consistency certification, the 
Federal agency may approve the federal license or permit application. 
Notwithstanding State agency concurrence with a consistency 
certification, the federal permitting agency may deny approval of the 
federal license or permit application. Federal agencies should not 
delay processing applications pending receipt of a State agency's 
concurrence. In the event a Federal agency determines that an 
application will not be approved, it shall immediately notify the 
applicant and the State agency.
    (d) During the period when the State agency is reviewing the 
consistency certification, the applicant and the State agency should 
attempt, if necessary, to agree upon conditions, which, if met by the 
applicant, would permit State agency concurrence. The parties shall 
also consult with the Federal agency responsible for approving the 
federal license or permit to ensure that proposed conditions satisfy 
federal as well as state management program requirements (see also 
Sec. 930.4).


Sec. 930.63  State agency objection to a consistency certification.

    (a) If the State agency objects to the applicant's consistency 
certification within six months following commencement of review, it 
shall notify the applicant, Federal agency and Director of the 
objection. A State agency may assert alternative bases for its 
objection, as described in paragraphs (b) and (c) of this section.
    (b) State agency objections that are based on sufficient 
information to evaluate the applicant's consistency certification shall 
describe how the proposed activity is inconsistent with specific 
enforceable policies of the management program. The objection may 
describe alternative measures (if they exist) which, if adopted by the 
applicant, may permit the proposed activity to be conducted in a manner 
consistent with the enforceable policies of the management program.
    (c) A State agency objection may be based upon a determination that 
the applicant has failed, following a written State agency request, to 
supply the information required pursuant to Sec. 930.58 or other 
information necessary for the State agency to determine consistency. If 
the State agency objects on the grounds of insufficient information, 
the objection shall describe the nature of the information requested 
and the necessity of having such information to determine the 
consistency of the activity with the management program. The objection 
may describe alternative measures (if they exist) which, if adopted by 
the applicant, may permit the proposed activity to be conducted in a 
manner consistent with the enforceable policies of the management 
program.
    (d) Alternatives. If a State agency proposes an alternative(s) in 
its objection letter, the alternative(s) shall be described with 
sufficient specificity to allow the applicant to determine whether to, 
in consultation with the State agency: adopt an alternative; abandon 
the project; or file an appeal

[[Page 20294]]

under subpart H. Application of the specificity requirement demands a 
case specific approach. More complicated activities or alternatives 
generally need more information than less-complicated activities or 
alternatives. See Sec. 930.121(d) for further details regarding 
alternatives for appeals under subpart H of this part.
    (e) A State agency objection shall include a statement to the 
following effect:

    Pursuant to 15 CFR part 930, subpart H, and within 30 days from 
receipt of this letter, you may request that the Secretary of 
Commerce override this objection. In order to grant an override 
request, the Secretary must find that the activity is consistent 
with the objectives or purposes of the Coastal Zone Management Act, 
or is necessary in the interest of national security. A copy of the 
request and supporting information must be sent to the [Name of 
state] coastal management program and the federal permitting or 
licensing agency. The Secretary may collect fees from you for 
administering and processing your request.

Sec. 930.64  Federal permitting agency responsibility.

    Following receipt of a State agency objection to a consistency 
certification, the Federal agency shall not issue the federal license 
or permit except as provided in subpart H of this part.


Sec. 930.65  Remedial action for previously reviewed activities.

    (a) Federal and State agencies shall cooperate in their efforts to 
monitor federal license or permit activities in order to make certain 
that such activities continue to conform to both federal and state 
requirements.
    (b) The State agency shall notify the relevant Federal agency 
representative for the area involved of any federal license or permit 
activity which the State agency claims was:
    (1) Previously determined to be consistent with the state's 
management program, but which the State agency later maintains is being 
conducted or is having an effect on any coastal use or resource 
substantially different than originally described and, as a result, is 
no longer consistent with the state's management program; or
    (2) Previously determined not to be an activity affecting any 
coastal use or resource, but which the State agency later maintains is 
being conducted or is having coastal effects substantially different 
than originally described and, as a result, the activity affects any 
coastal use or resource in a manner inconsistent with the state's 
management program.
    (c) The State agency notification shall include:
    (1) A description of the activity involved and the alleged lack of 
compliance with the state's management program;
    (2) Supporting information; and
    (3) A request for appropriate remedial action. A copy of the 
request shall be sent to the applicant and the Director. Remedial 
actions shall be linked to coastal effects substantially different than 
originally described.
    (d) If, after 30 days following a request for remedial action, the 
State agency still maintains that the applicant is failing to comply 
substantially with the state's management program, the governor or 
State agency may file a written objection with the Director. If the 
Director finds that the applicant is conducting an activity that is 
substantially different from the approved activity, the applicant shall 
submit an amended or new consistency certification and supporting 
information to the Federal agency and to the State agency, or comply 
with the originally approved certification.
    (e) An applicant shall be found to be conducting an activity 
substantially different from the approved activity if the State agency 
claims and the Director finds that the activity affects any coastal use 
or resource substantially different than originally described by the 
applicant and, as a result, the activity is no longer being conducted 
in a manner consistent with the state's management program. The 
Director may make a finding that an applicant is conducting an activity 
substantially different from the approved activity only after providing 
15 days for the applicant and the Federal agency to review the State 
agency's objection and to submit comments for the Director's 
consideration.


Sec. 930.66  Supplemental coordination for proposed activities.

    (a) For federal license or permit proposed activities that were 
previously determined by the State agency to be consistent with the 
state's management program, but which have not yet begun, applicants 
shall further coordinate with the State agency and prepare a 
supplemental consistency certification if the proposed activity will 
affect any coastal use or resource substantially different than 
originally described. Substantially different coastal effects are 
reasonably foreseeable if:
    (1) The applicant makes substantial changes in the proposed 
activity that are relevant to state coastal management enforceable 
policies; or (2) There are significant new circumstances or information 
relevant to the proposed activity and the proposed activity's effect on 
any coastal use or resource.
    (b) The State agency may notify the applicant, the Federal agency 
and the Director of proposed activities which the State agency believes 
should be subject to supplemental coordination. The State agency's 
notification shall include information supporting a finding of 
substantially different coastal effects than originally described and 
the relevant enforceable policies, and may recommend modifications to 
the proposed activity (if any) that would allow the applicant to 
implement the proposed activity consistent with the state's management 
program. State agency notification under paragraph (b) of this section 
does not remove the requirement under paragraph (a) of this section for 
applicants to notify State agencies.

Subpart E--Consistency for Outer Continental Shelf (OCS) 
Exploration, Development and Production Activities


Sec. 930.70  Objectives.

    The provisions of this subpart are intended to assure that all 
federal license or permit activities described in detail in OCS plans 
and which affect any coastal use or resource are conducted in a manner 
consistent with approved state coastal management programs.


Sec. 930.71  Federal license or permit activity described in detail.

    The term ``federal license or permit activity described in detail'' 
means any activity requiring a federal license or permit, as defined in 
Sec. 930.51, which the Secretary of the Interior determines must be 
described in detail within an OCS plan.


Sec. 930.72  Person.

    The term ``person'' means any individual, corporation, partnership, 
association, or other entity organized or existing under the laws of 
any state; the federal government; any state, regional, or local 
government; or any entity of such federal, state, regional or local 
government, who submits to the Secretary of the Interior, or designee 
following management program approval, an OCS plan which describes in 
detail federal license or permit activities.


Sec. 930.73  OCS plan.

    (a) The term ``OCS plan'' means any plan for the exploration or 
development of, or production from, any area which has been leased 
under the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.), 
and the regulations under that Act, which is submitted to the

[[Page 20295]]

Secretary of the Interior or designee following management program 
approval and which describes in detail federal license or permit 
activities.
    (b) The requirements of this subpart do not apply to federal 
license or permit applications filed after management program approval 
for activities described in detail in OCS plans approved by the 
Secretary of the Interior or designee prior to management program 
approval.


Sec. 930.74  OCS activities subject to State agency review.

    Except for states which do not anticipate coastal effects resulting 
from OCS activities, management program lists required pursuant to 
Sec. 930.53 shall include a reference to OCS plans which describe in 
detail federal license or permit activities affecting any coastal use 
or resource.


Sec. 930.75  State agency assistance to persons.

    As a preliminary matter, any person intending to submit to the 
Secretary of the Interior and OCS plan which describes in detail 
federal license or permit activities affecting any coastal use or 
resource should obtain the views and assistance of the State agency 
regarding the means for ensuring that such activities will be conducted 
in a manner consistent with the state's management program. As part of 
its assistance efforts, the State agency shall make available for 
inspection copies of the management program document. Upon request by 
such persons, the State agency shall identify any enforceable policies 
applicable to the proposed activities, based upon the information 
submitted to the State agency.


Sec. 930.76  Submission of an OCS plan, necessary data and information 
and consistency certification.

    Any person submitting any OCS plan to the Secretary of the Interior 
or designee shall:
    (a) Identify all activities described in detail in the plan which 
require a federal license or permit and which will have reasonably 
foreseeable coastal effects;
    (b) Submit necessary data and information pursuant to Sec. 930.58;
    (c) When satisfied that the proposed activities meet the federal 
consistency requirements of this subpart, provide the Secretary of the 
Interior or designee with a consistency certification and necessary 
data and information. The Secretary of the Interior or designee shall 
furnish the State agency with a copy of the OCS plan (excluding 
proprietary information), necessary data and information and 
consistency certification.
    (d) The person's consistency certification shall be in the 
following form:

    The proposed activities described in detail in this plan comply 
with (name of state(s)) approved coastal management program(s) and 
will be conducted in a manner consistent with such program(s).


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

    (a)(1) Except as provided in Sec. 930.60(a), State agency review of 
the person's consistency certification begins at the time the State 
agency receives a copy of the OCS plan, consistency certification, and 
required necessary data and information. A State agency request for 
information and data in addition to that required by Sec. 930.76 shall 
not extend the date of commencement of State agency review.
    (2) To assess consistency, the State agency shall use the 
information submitted pursuant to the Department of the Interior's OCS 
operating regulations (see 30 CFR 250.33 and 250.34) and OCS 
information program (see 30 CFR part 252) regulations and necessary 
data and information (see 15 CFR 930.58).
    (b) Following receipt of the material described in paragraph (a) of 
this section, the State agency shall ensure timely public notice of the 
proposed activities in accordance with Sec. 930.61.


Sec. 930.78  State agency concurrence or objection.

    (a) At the earliest practicable time, the State agency shall notify 
in writing the person, the Secretary of the Interior or designee and 
the Director of its concurrence with or objection to the consistency 
certification. State agencies should restrict the period of public 
notice, receipt of comments, hearing proceedings and final decision-
making to the minimum time necessary to inform the public, obtain 
sufficient comment, and develop a reasonable decision on the matter. If 
the State agency has not issued a decision within three months 
following commencement of State agency review, it shall notify the 
person, the Secretary of the Interior or designee and the Director of 
the status of review and the basis for further delay in issuing a final 
decision. Notice shall be in written form and postmarked no later than 
three months following the commencement of the State agency's review. 
Concurrence by the State agency shall be conclusively presumed if the 
notification required by this subparagraph is not provided.
    (b) Concurrence by the State agency shall be conclusively presumed 
if the State agency's response to the consistency certification is not 
postmarked within six months following commencement of State agency 
review.
    (c) If the State agency objects to one or more of the federal 
license or permit activities described in detail in the OCS plan, it 
must provide a separate discussion for each objection in accordance 
with Sec. 930.63.


Sec. 930.79  Effect of State agency concurrence.

    (a) If the State agency issues a concurrence or is conclusively 
presumed to concur with the person's consistency certification, the 
person will not be required to submit additional consistency 
certifications and supporting information for State agency review at 
the time federal applications are actually filed for the federal 
licenses or permits to which such concurrence applies, unless the 
activities, or effects from the activities on any coastal use or 
resource, have substantially changed. If the person's request for a 
federal license or permit proposes activities which have substantially 
changed from the activities described in detail in the OCS plan, the 
person shall submit an amended plan. The amended plan shall be 
submitted to the Secretary of the Interior or designee along with a 
consistency certification and necessary data and information pursuant 
to Sec. 930.58. The determination of whether an activity or the coastal 
effects of an activity have substantially changed is made on a case-by-
case basis by the State agency, MMS and the person. The opinion of the 
State agency shall be accorded deference and ``substantially changed'' 
shall be construed broadly to ensure that the State agency has the 
opportunity to review substantially different coastal effects not 
previously reviewed.
    (b) Unless the State agency indicates otherwise, copies of federal 
license or permit applications for activities described in detail in an 
OCS plan which has received State agency concurrence shall be sent by 
the person to the State agency to allow the State agency to monitor the 
activities. Confidential and proprietary material within such 
applications may be deleted.


Sec. 930.80  Federal permitting agency responsibility.

    Following receipt of a State agency objection to a consistency 
certification related to federal license or permit activities described 
in detail in an OCS plan, the Federal agency shall not issue

[[Page 20296]]

any of such licenses or permits except as provided in subpart H of this 
part.


Sec. 930.81  Multiple permit review.

    (a) A person submitting a consistency certification for federal 
license or permit activities described in detail in an OCS plan is 
strongly encouraged to work with other Federal agencies in an effort to 
include, for consolidated State agency review, consistency 
certifications and supporting data and information applicable to OCS-
related federal license or permit activities affecting any coastal use 
or resource which are not required to be described in detail in OCS 
plans but which are subject to State agency consistency review (e.g., 
Corps of Engineer permits for the placement of structures on the OCS 
and for dredging and the transportation of dredged material, 
Environmental Protection Agency air and water quality permits for 
offshore operations and onshore support and processing facilities). In 
the event the person does not consolidate such OCS-related permit 
activities with the State agency's review of the OCS plan, such 
activities will remain subject to individual State agency review under 
the requirements of subpart D of this part.
    (b) A State agency objection to one or more of the OCS-related 
federal license or permit activities submitted for consolidated review 
shall not prevent the person from receiving Federal agency approval:
    (1) For those OCS-related license or permit activities found by the 
State agency to be consistent with the management program; and
    (2) For the license or permit activities described in detail in the 
OCS plan provided the State agency concurs with the consistency 
certification for such plan. Similarly, a State agency objection to the 
consistency certification for an OCS plan shall not prevent the person 
from receiving Federal agency approval for those OCS-related license or 
permit activities determined by the State agency to be consistent with 
the management program.


Sec. 930.82  Amended OCS plans.

    If the State agency objects to the person's OCS plan consistency 
certification, and/or if, pursuant to subpart H of this part, the 
Secretary does not determine that each of the objected to federal 
license or permit activities described in detail in such plan is 
consistent with the objectives or purposes of the Act, or is necessary 
in the interest of national security, and if the person still intends 
to conduct the activities described in the OCS plan, the person shall 
submit an amended plan to the Secretary of the Interior or designee and 
to the State agency along with a consistency certification and data and 
information necessary to support the amended consistency certification. 
The data and information shall specifically describe modifications made 
to the original OCS plan, and the manner in which such modifications 
will ensure that all of the proposed federal license or permit 
activities described in detail in the amended plan will be conducted in 
a manner consistent with the state's management program.


Sec. 930.83  Review of amended OCS plans; public notice.

    After receipt of a copy of the amended OCS plan, consistency 
certification, and necessary data and information, State agency review 
shall begin. The requirements of Secs. 930.77, 930.78, and 930.79, 
apply to the review of amended OCS plans, except that the applicable 
time period for purposes of concurrence by conclusive presumption shall 
be three months instead of six months.


Sec. 930.84  Continuing State agency objections.

    If the State agency objects to the consistency certification for an 
amended OCS plan, the prohibition in Sec. 930.80 against Federal agency 
approval of licenses or permits for activities described in detail in 
such a plan applies, further Secretarial review pursuant to subpart H 
of this part may take place, and the development of an additional 
amended OCS plan and consistency certification may be required pursuant 
to Secs. 930.82 through 930.83.


Sec. 930.85  Failure to comply substantially with an approved OCS plan.

    (a) The Department of the Interior and State agencies shall 
cooperate in their efforts to monitor federally licensed or permitted 
activities described in detail OCS plans to make certain that such 
activities continue to conform to both federal and state requirements.
    (b) If a State agency claims that a person is failing substantially 
to comply with an approved OCS plan subject to the requirements of this 
subpart, and such failure allegedly involves the conduct of activities 
affecting any coastal use or resource in a manner that is not 
consistent with the approved management program, the State agency shall 
transmit its claim to the Minerals Management Service region involved. 
Such claim shall include a description of the specific activity 
involved and the alleged lack of compliance with the OCS plan, and a 
request for appropriate remedial action. A copy of the claim shall be 
sent to the person and the Director.
    (c) If, after 30 days following a request for remedial action, the 
State agency still maintains that the person is failing to comply 
substantially with the OCS plan, the governor or State agency may file 
a written objection with the Director. If the Director finds that the 
person is failing to comply substantially with the OCS plan, the person 
shall submit an amended or new OCS plan along with a consistency 
certification and supporting information to the Secretary of the 
Interior or designee and to the State agency. Following such a finding 
by the Director the person shall comply with the originally approved 
OCS plan, or with interim orders issued jointly by the Director and the 
Minerals Management Service, pending approval of the amended or new OCS 
plan. Sections 930.82 through 930.84 shall apply to further State 
agency review of the consistency certification for the amended or new 
plan.
    (d) A person shall be found to have failed substantially to comply 
with an approved OCS plan if the State agency claims and the Director 
finds that one or more of the activities described in detail in the OCS 
plan which affects any coastal use or resource are being conducted or 
are having an effect on any coastal use or resource substantially 
different than originally described by the person in the plan or 
accompanying information and, as a result, the activities are no longer 
being conducted in a manner consistent with the state's management 
program. The Director may make a finding that a person has failed 
substantially to comply with an approved OCS plan only after providing 
a reasonable opportunity for the person and the Secretary of the 
Interior to review the State agency's objection and to submit comments 
for the Director's consideration.

Subpart F--Consistency for Federal Assistance to State and Local 
Governments


Sec. 930.90  Objectives.

    The provisions of this subpart are intended to assure that federal 
assistance to applicant agencies for activities affecting any coastal 
use or resource is granted only when such activities are consistent 
with approved coastal managements programs. The provisions of subpart I 
of this part are intended to supplement the provisions of this subpart 
for federal assistance activities having interstate coastal effects.

[[Page 20297]]

Sec. 930.91  Federal assistance.

    The term ``federal assistance'' means assistance provided under a 
federal program to an applicant agency through grant or contractual 
arrangements, loans, subsidies, guarantees, insurance, or other form of 
financial aid.


Sec. 930.92  Applicant agency.

    The term ``applicant agency'' means any unit of state or local 
government, or any related public entity such as a special purpose 
district, which, following management program approval, submits an 
application for federal assistance.


Sec. 930.93  Intergovernmental review process.

    The term ``intergovernmental review process'' describes the 
procedures established by states pursuant to E.O. 12372, 
``Intergovernmental Review of Federal Programs,'' and implementing 
regulations of the review of federal financial assistance to applicant 
agencies.


Sec. 930.94  State review process for consistency.

    (a) States with approved coastal management programs should review 
applications from applicant agencies for federal assistance in 
accordance with E.O. 12372 and implementing regulations.
    (b) The applicant agency shall submit an application for federal 
assistance to the State agency for consistency review, through the 
intergovernmental review process or by direct submission to the State 
agency, for any proposed federal assistance activity that:
    (1) Is listed in the management program and occurring within the 
coastal zone (see Sec. 930.95(a)) or within a described geographic area 
outside of the coastal zone (see Sec. 930.95(b)), or
    (2) Will have reasonably foreseeable effects on any coastal use or 
resource.
    (c) Applicant agency evaluation. The applicant agency shall provide 
to the State agency, in addition to the federal application, a brief 
evaluation on the relationship of the proposed activity and any 
reasonably foreseeable coastal effects to the enforceable policies of 
the state management program.


Sec. 930.95  Guidance provided by the State agency.

    (a) State agencies should include within the management program a 
listing of specific types of federal assistance programs subject to a 
consistency review. Such a listing, and any amendments, will require 
prior State agency consultation with affected Federal agencies and 
approval by the Director as a program change.
    (b) In the event the State agency chooses to review applications 
for federal assistance activities outside of the coastal zone but with 
reasonably foreseeable coastal effects, the State agency shall develop 
a federal assistance provision within the management program generally 
describing the geographic area (e.g., coastal floodplains) within which 
federal assistance activities will be subject to review. This 
provision, and any refinements, will require prior State agency 
consultation with affected Federal agencies and approval by the 
Director as a program change. Listed activities may have different 
geographic location descriptions, depending on the nature of the 
activity and its effects on any coastal use or resource. For example, 
the geographic location for activities affecting water resources or 
uses could be described by shared water bodies, river basins, 
boundaries defined under the coastal nonpoint pollution control 
program, or other ecologically identifiable areas.
    (c) The State agency shall provide copies of any federal assistance 
list or geographic provision, and any refinements, to Federal agencies 
and units of applicant agencies empowered to undertake federally 
assisted activities within the coastal zone or described geographic 
area.
    (d) For review of unlisted federal assistance activities, the State 
agency shall follow the same procedures as it would follow for review 
of listed federal assistance activities outside of the coastal zone or 
the described geographic area (see Sec. 930.98.)


Sec. 930.96  Consistency review.

    (a)(1) If the State agency does not object to the proposed 
activity, the Federal agency may grant the federal assistance to the 
applicant agency. Notwithstanding State agency consistency approval for 
the proposed project, the Federal agency may deny assistance to the 
applicant agency. Federal agencies should not delay processing 
applications pending receipt of a State agency approval or objection. 
In the event a Federal agency determines that an application will not 
be approved, it shall immediately notify the applicant agency and the 
State agency.
    (2) During the period when the State agency is reviewing the 
activity, the applicant agency and the State agency should attempt, if 
necessary, to agree upon conditions which, if met by the applicant 
agency, would permit State agency approval. The parties shall also 
consult with the Federal agency responsible for providing the federal 
assistance to ensure that proposed conditions satisfy federal 
requirements as well as state management program requirements.
    (b) If the State agency objects to the proposed project, the State 
agency shall notify the applicant agency, Federal agency and the 
Director of the objection pursuant to Sec. 930.63.


Sec. 930.97  Federal assisting agency responsibility.

    Following receipt of a State agency objection, the Federal agency 
shall not approve assistance for the activity except as provided in 
subpart H of this part


Sec. 930.98  Federally assisted activities outside of the coastal zone 
or the described geographic area.

    (a) State agencies should monitor proposed federal assistance 
activities outside of the coastal zone or the described geographic area 
(e.g., by use of the intergovernmental review process, review of NEPA 
documents Federal Register) and shall immediately notify applicant 
agencies, Federal agencies, and any other agency or office which may be 
identified by the state in its intergovernmental review process 
pursuant to E.O. 12372 of proposed activities which will have 
reasonably foreseeable coastal effects and which the State agency is 
reviewing for consistency with the management program. Notification 
shall also be sent by the State agency to the Director. The Director, 
in his/her discretion, may review the State agency's decision to review 
the activity. The Director may disapprove the State agency's decision 
to review the activity only if the Director finds that the activity 
will not affect any coastal use or resource. The Director shall be 
guided by the provisions in Sec. 930.54(c). For purposes of this 
subpart, State agencies must inform the parties of objections within 
the time period permitted under the intergovernmental review process, 
otherwise the State agency waives its right to object to the proposed 
activity.
    (b) If within the permitted time period the State agency notifies 
the Federal agency of its objection to a proposed Federal assistance 
activity, the Federal agency shall not provide assistance to the 
applicant agency except as provided in subpart H of this part.


Sec. 930.99  Availability of mediation for federal assistance disputes.

    In the event of a serious disagreement between a Federal agency and 
the State agency regarding whether a federal assistance activity is 
subject to the consistency requirement either party may request the 
informal negotiation or

[[Page 20298]]

Secretarial mediation services provided for in subpart G of this part. 
The existence of a serious disagreement will not relieve the Federal 
agency from the responsibility for withholding federal assistance for 
the activity pending satisfaction of the requirements of this subpart, 
except in cases where the Director has disapproved a State agency 
decision to review an activity.


Sec. 930.100  Remedial action for previously reviewed activities.

    (a) Federal and State agencies shall cooperate in their efforts to 
monitor federal assistance activities in order to make certain that 
such activities continue to conform to both federal and state 
requirements.
    (b) The State agency shall notify the relevant Federal agency 
representative for the area involved of any federal assistance activity 
which the State agency claims was:
    (1) Previously determined to be consistent with the state's 
management program, but which the State agency later maintains is being 
conducted or is having an effect on any coastal use or resource 
substantially different than originally described and, as a result, is 
no longer consistent with the state management program, or
    (2) Previously determined not to be a project affecting any coastal 
use or resource, but which the State agency later maintains is being 
conducted or is having an effect on any coastal use or resource 
substantially different than originally described and, as a result the 
project affects a coastal use or resource in a manner inconsistent with 
the state's management program.
    (c) The State agency notification shall include:
    (1) A description of the activity involved and the alleged lack of 
compliance with the state's management program;
    (2) Supporting information; and
    (3) A request for appropriate remedial action. A copy of the 
request shall be sent to the applicant agency and the Director.
    (d) If, after 30 days following a request for remedial action, the 
State agency still maintains that the applicant agency is failing to 
comply substantially with the state's management program, the State 
agency may file a written objection with the Director. If the Director 
finds that the applicant agency is conducting an activity that is 
substantially different from the approved activity, the State agency 
may reinitiate its review of the activity, or the applicant agency may 
conduct the activity as it was originally approved.
    (e) An applicant agency shall be found to be conducting an activity 
substantially different from the approved activity if the State agency 
claims and the Director finds that the activity affects any coastal use 
or resource substantially different than originally determined by the 
State agency and, as a result, the activity is no longer being 
conducted in a manner consistent with the state's management program. 
The Director may make a finding that an applicant agency is conducting 
an activity substantially different from the approved activity only 
after providing a reasonable opportunity for the applicant agency and 
the Federal agency to review the State agency's objection and to submit 
comments for the Director's consideration.


Sec. 930.101  Supplemental coordination for proposed activities.

    (a) For federal assistance activities that were previously 
determined by the State agency to be consistent with the state's 
management program, but which have not yet begun, the applicant agency 
shall further coordinate with the State agency if the proposed activity 
will affect any coastal use or resource substantially different than 
originally described. Substantially different coastal effects are 
reasonably foreseeable if:
    (1) The applicant agency makes substantial changes in the proposed 
activity that are relevant to state management program enforceable 
policies; or
    (2) There are significant new circumstances or information relevant 
to the proposed activity and the proposed activity's effect on any 
coastal use or resource.
    (b) The State agency may notify the applicant agency, the Federal 
agency and the Director of proposed activities which the State agency 
believes should be subject to supplemental coordination. The State 
agency's notification shall include information supporting a finding of 
substantially different coastal effects than originally described and 
the relevant enforceable policies, and may recommend modifications to 
the proposed activity (if any) that would allow the applicant agency to 
implement the proposed activity consistent with the state's management 
program. State agency notification under paragraph (b) of this section 
does not remove the requirement under paragraph (a) of this section for 
applicant agencies to notify State agencies.

Subpart G--Secretarial Mediation


Sec. 930.110  Objectives.

    The purpose of this subpart is to describe negotiation and 
mediation procedures which Federal and State agencies may use to 
attempt to resolve serious disagreements which arise during the 
administration of approved management programs.


Sec. 930.111  Informal negotiations.

    The availability of mediation does not preclude use by the parties 
of alternative means for resolving their disagreement. In the event a 
serious disagreement arises, the parties are strongly encouraged to 
make every effort to resolve the disagreement informally. OCRM shall be 
available to assist the parties in these efforts.


Sec. 930.112  Request for mediation.

    (a) The Secretary or other head of a Federal agency, or the 
Governor or the State agency may notify the Secretary in writing of the 
existence of a serious disagreement, and may request that the Secretary 
seek to mediate the disagreement. A copy of the written request must be 
sent to the agency with which the requesting agency disagrees, to the 
Assistant Administrator, and to the Director.
    (b) Within 15 days following receipt of a request for mediation the 
disagreeing agency shall transmit a written response to the Secretary, 
and to the agency requesting mediation, indicating whether it wishes to 
participate in the mediation process. If the disagreeing agency 
declines the offer to enter into mediation efforts, it must indicate 
the basis for its refusal in its response. Upon receipt of a refusal to 
participate in mediation efforts, the Secretary shall seek to persuade 
the disagreeing agency to reconsider its decision and enter into 
mediation efforts. If the disagreeing agencies do not all agree to 
participate, the Secretary will cease efforts to provide mediation 
assistance.


Sec. 930.113  Public hearings.

    (a) If the parties agree to the mediation process, the Secretary 
shall appoint a hearing officer who may, if necessary, schedule a 
hearing in the local area concerned. The hearing officer shall give the 
parties at least 30 days notice of the time and place set for the 
hearing and shall provide timely public notice of the hearing.
    (b) At the time public notice is provided, the Federal and State 
agencies shall provide the public with convenient access to public data 
and information related to the serious disagreement.

[[Page 20299]]

    (c) Hearings shall be informal and shall be conducted by the 
hearing officer with the objective of securing in a timely fashion 
information related to the disagreement. The Federal and State 
agencies, as well as other interested parties, may offer information at 
the hearing subject to the hearing officer's supervision as to the 
extent and manner of presentation. A party may also provide the hearing 
officer with written comments. Hearings will be recorded and the 
hearing officer shall provide transcripts and copies of written 
information offered at the hearing to the Federal and State agency 
parties. The public may inspect and copy the transcripts and written 
information provided to these agencies.


Sec. 930.114  Secretarial mediation efforts.

    (a) If a hearing is held, the hearing officer shall transmit the 
hearing record to the Secretary. Upon receipt of the hearing record, 
the Secretary shall schedule a mediation conference to be attended by 
representatives from the Office of the Secretary, the disagreeing 
Federal and State agencies, and any other interested parties whose 
participation is deemed necessary by the Secretary. The Secretary shall 
provide the parties at least 10 days notice of the time and place set 
for the mediation conference.
    (b) Secretarial mediation efforts shall last only so long as the 
Federal and State agencies agree to participate. The Secretary shall 
confer with the Executive Office of the President, as necessary, during 
the mediation process.


Sec. 930.115  Termination of mediation.

    Mediation shall terminate:
    (a) At any time the Federal and State agencies agree to a 
resolution of the serious disagreement,
    (b) If one of the agencies withdraws from mediation,
    (c) In the event the agencies fail to reach a resolution of the 
disagreement within 15 days following Secretarial conference efforts, 
and the agencies do not agree to extend mediation beyond that period, 
or
    (d) For other good cause.


Sec. 930.116  Judicial review.

    The availability of the mediation services provided in this subpart 
is not intended expressly or implicitly to limit the parties' use of 
alternate forums to resolve disputes. Specifically, judicial review 
where otherwise available by law may be sought by any party to a 
serious disagreement without first having exhausted the mediation 
process provided for in this subpart.

Subpart H--Appeal to the Secretary for Review Related to the 
Objectives or Purposes of the Act and National Security Interests


Sec. 930.120  Objectives.

    This subpart sets forth the procedures by which the Secretary may 
find that a federal license or permit activity, including those 
described in detail in an OCS plan, or a federal assistance activity, 
which a State agency has found to be inconsistent with the enforceable 
policies of the state's a management program, may be federally approved 
because the activity is consistent with the objectives or purposes of 
the Act, or is necessary in the interest of national security.


Sec. 930.121  Consistent with the objectives or purposes of the Act.

    A federal license or permit activity, or a federal assistance 
activity, is ``consistent with the objectives or purposes of the Act'' 
if it satisfies each of the following four requirements:
    (a) The activity furthers, in more than a de minimis way, one or 
more of the competing national objectives or purposes contained in 
section 302 or section 303 of the Act,
    (b) When performed separately or when its cumulative effects are 
considered, the national interest furthered by the activity outweighs 
the activity's adverse coastal effects,
    (c) The activity will not violate any requirements of the Clean Air 
Act, as amended, or the Federal Water Pollution Control Act, as 
amended, and
    (d) There is no reasonable alternative available which would permit 
the activity to be conducted in a manner consistent with the 
enforceable policies of the state's management program. When 
determining whether a reasonable alternative is available, the 
Secretary may consider but is not limited to considering, previous 
appeal decisions, alternatives described in objection letters and 
alternatives and other new information described during the appeal.


Sec. 930.122  Necessary in the interest of national security.

    A federal license or permit activity, or a federal assistance 
activity, is ``necessary in the interest of national security'' if a 
national defense or other national security interest would be 
significantly impaired if the activity were not permitted to go forward 
as proposed. Secretarial review of national security issues shall be 
aided by information submitted by the Department of Defense or other 
interested Federal agencies. The views of such agencies, while not 
binding, shall be given considerable weight by the Secretary. The 
Secretary will seek information to determine whether the objected-to 
activity directly supports national defense or other essential national 
security objectives.


Sec. 930.123  Appellant and Federal agency.

    (a) The ``appellant'' is the applicant, person or applicant agency 
submitting an appeal to the Secretary pursuant to this subpart.
    (b) For the purposes of this subpart, the ``Federal agency'' is the 
agency whose proposed issuance of a license or permit or grant of 
assistance is the subject of the appeal to the Secretary.


Sec. 930.124  Computation of time.

    (a) The day that any period of time allowed or prescribed by these 
rules begins, shall not be included in the computation of the 
designated period of time. The last day of the time period computed 
shall be included unless it is a Saturday, Sunday or a legal holiday in 
which case the period runs until the next day which is not one of the 
aforementioned days.
    (b) Whenever a party is required to act within a prescribed time 
period after receipt of a document or notice and the notice or document 
is provided to the party by mail, 3 days shall be added to the 
prescribed period of time.


Sec. 930.125  Notice of appeal to the Secretary.

    (a) To obtain Secretarial review of a State agency objection, the 
appellant shall file a notice of appeal with the Secretary within 30 
days of receipt of a State agency objection.
    (b) The appellant's notice of appeal shall be accompanied by 
payment of an application fee or a request for a waiver of such fees. 
An appeal involving a project with a value of $1 million dollars or 
more shall be considered a major appeal and the application fee is 
$500.00. The application fee for all other projects is $200.00. Upon 
review of the notice of appeal, the Secretary may determine that a 
project valued at less than $1 million is likely to involve significant 
administrative costs to the agency and assess the $500.00 application 
fee which shall be due upon receipt of notice thereof.
    (c) The appellant shall send a copy of the notice of appeal to the 
objecting State agency and the Assistant General Counsel for Ocean 
Services (GCOS), 1305 East West Highway, Room 6111 SSMC 4, Silver 
Spring, Maryland 20910.
    (d) No extension of time will be permitted for the filing of a 
notice of appeal.

[[Page 20300]]

    (e) The Secretary may waive the application fee and processing fee 
if the appellant demonstrates that such fees impose an economic 
hardship. The request for a waiver and demonstration of economic 
hardship shall accompany the notice of appeal. If the Secretary denies 
a request for a waiver and the appellant wishes to continue with the 
appeal, the appellant shall submit to the Secretary the fees within 20 
days of receipt of the Secretary's denial. If the fee is not received 
on the 20th day, then the Secretary shall dismiss the appeal.


Sec. 930.126  Consistency appeal processing fees.

    The Secretary shall collect as a processing fee such other fees 
from the appellant as are necessary to recover the full costs of 
administering and processing such appeals under section 307(c) of the 
Act. All processing fees shall be assessed and collected no later than 
60 days after publication of the Federal Register Notice closing the 
decision record. Failure to submit processing fees shall be grounds for 
extending the time for issuance of a decision pursuant to section 
319(a)(2) (16 U.S.C. 1465(a)(2)) and 930.131 of this subpart.


Sec. 930.127  Briefs and supporting data and information.

    (a) The Secretary shall establish a schedule of dates and times for 
submission of the briefs, supporting data and information by the 
appellant and the State agency. The schedule shall include a time for 
the submission of a response and any relevant supporting information 
from the State agency.
    (b) Both the appellant and State agency shall file copies of their 
briefs, supporting materials and all requests and communications with 
the Secretary, with each other, and the Assistant General Counsel for 
Ocean Services (GCOS), NOAA, 1305 East West Highway, Room 6111 SSMC4, 
Silver Spring, Maryland 20910.
    (c) The Secretary may approve a request for an extension of time 
for submission of briefs and supporting information so long as the 
request is filed within the time period prescribed in the briefing 
schedule established under paragraph (a) of this section. A copy of the 
request for an extension of time shall be sent to the Assistant General 
Counsel for Ocean Services.


Sec. 930.128  Public notice and comment period.

    (a) The Secretary shall provide timely public notice of the appeal 
after the receipt of the notice of appeal, and payment of appropriate 
application fees. At a minimum, public notice shall be provided in the 
Federal Register and the immediate area of the coastal zone which is 
likely to be affected by the proposed activity.
    (b) The Secretary shall provide an opportunity for public comment 
on the appeal. The public shall be afforded no less than 30 days to 
comment on the appeal. Notice of the public comment period shall take 
the same form as Notice required in paragraph (a) of this section.
    (c) The Secretary shall afford interested federal agencies, 
including the Federal agency whose proposed action is the subject of 
the appeal, with an opportunity to comment on the appeal. The Secretary 
shall afford notice to the federal agencies of the time for filing 
their comments.
    (d) Requests for extensions of time to provide comments may be made 
pursuant to Sec. 930.127(c).


Sec. 930.129  Dismissal, remand, and stay of appeals.

    (a) The Secretary may dismiss an appeal for good cause. Good cause 
shall include, but is not limited to:
    (1) Failure of the appellant to submit a notice of appeal within 
the required 30-day period.
    (2) Failure of the appellant to submit the supporting information 
within the required period or approved extension period;
    (3) Failure of the appellant to pay a required fee;
    (4) The Federal agency denies the federal license, permit or 
assistance application;
    (5) Failure of the appellant to base the appeal on grounds that the 
proposed activity either is consistent with the objectives or purposes 
of the Act, or is necessary in the interest of national security.
    (6) Failure of the State agency to properly lodge its consistency 
objection in compliance with section 307 of the Act and the regulations 
contained in subparts D, E, F, or I of this part. The Secretary shall 
make this determination as a threshold matter if raised by the 
appellant, and after providing an opportunity to the State agency to 
respond to the appellant's allegations.
    (b) The Secretary may stay his review and remand an appeal to the 
State agency for reconsideration of the project's consistency with the 
enforceable policies of the state's management program if significant 
new information relevant to the State's objection, that was not 
provided to the State agency as part of its review, is submitted to the 
Secretary by the appellant, the public or a federal agency.
    (c) The Secretary may stay the processing of an appeal on her own 
initiative or upon request of an appellant or State agency for the 
following purposes:
    (1) To allow additional information to be developed relevant to 
compliance with the Clean Air Act, as amended, and/or the Federal Water 
Pollution Control Act, as amended,
    (2) To allow mediation or settlement negotiations to occur between 
the applicant and State agency,
    (3) To allow for remand pursuant to paragraph (b) of this section;
    (4) A stay shall not be granted for more than one year.


Sec. 930.130  Public hearings.

    The Secretary may hold a public hearing in response to a request or 
on his own initiative. If a hearing is held by the Secretary it shall 
be guided by the procedures described within Sec. 930.113.


Sec. 930.131  Closure of the decision record and issuance of decision.

    (a)(1)At such time as the Secretary shall deem appropriate, but no 
sooner than 30 days after the close of the public comment period, the 
Secretary shall publish in the Federal Register a notice stating that 
the decision record is closed and that no further information, briefs 
or comments will be considered in deciding the appeal.
    (2) Where a state agency objection is based in whole or in part on 
a lack of information, the Secretary shall limit the record on appeal 
to information previously submitted to the State agency and relevant 
comments thereon, except as provided for in Sec. 930.129(b) and (c).
    (b) No later than 90 days after the closure of the decision record 
the Secretary shall issue a decision or publish a notice in the Federal 
Register explaining why a decision cannot be issued at that time. The 
Secretary shall issue a decision within 45 days of the publication of 
such notice.
    (c) The decision of the Secretary shall constitute final agency 
action for the purposes of the Administrative Procedure Act.
    (d) The appellant bears the burden of submitting evidence in 
support of its appeal and the burden of persuasion. In reviewing an 
appeal, the Secretary shall find that a proposed federal license or 
permit activity, or a federal assistance activity, is consistent with 
the objectives or purposes of the Act, or is necessary in the interest 
of national security, when the information submitted supports this 
conclusion.
    (e)(1) If the Secretary finds that the proposed activity is 
consistent with the

[[Page 20301]]

objectives or purposes of the Act, or is necessary in the interest of 
national security, the Federal agency may approve the activity.
    (2) If the Secretary does not make either of these findings, the 
Federal agency shall not approve the activity.


Sec. 930.132  Review initiated by the Secretary.

    (a) The Secretary may, on her own initiative, choose to consider 
whether a federal license or permit activity, or a federal assistance 
activity, is consistent with the objectives or purposes of the Act, or 
is necessary in the interest of national security. Secretarial review 
shall only be initiated after the completion of State agency review 
pursuant to the relevant subpart. The Secretary's decision to review 
the activity may result from an independent concern regarding the 
activity or a request from interested parties. If the Secretary decides 
to initiate review, notification shall be sent to the applicant, person 
or applicant agency, and to the Federal and State agencies. The notice 
shall include a statement describing the reasons for the review.
    (b) With the exception of application and processing fees, all 
other provisions under this subpart governing the processing and 
administering of appeals will apply to Secretarial reviews initiated 
under this section.

Subpart I--Consistency of Federal Activities Having Interstate 
Coastal Effects


Sec. 930.150  Objectives.

    (a) A federal activity may affect coastal uses or resources of a 
state other than the state in which the activity will occur. Effective 
coastal management is fostered by ensuring that activities having such 
reasonably foreseeable interstate coastal effects are conducted 
consistent with the enforceable policies of the coastal management 
program of each affected state.
    (b) The application of the federal consistency requirement to 
activities having interstate coastal effects is addressed by this 
subpart in order to encourage cooperation among states in dealing with 
activities having interstate coastal effects, and to provide states, 
local governments, Federal agencies, and the public with a predictable 
framework for evaluating the consistency of these federal activities 
under the Act.


Sec. 930.151  Interstate coastal effect.

    The term ``interstate coastal effect'' means any reasonably 
foreseeable effect resulting from a federal action occurring in one 
state of the United States on any coastal use or resource of another 
state that has a federally approved management program. Effects are not 
just environmental effects, but include effects on coastal uses. 
Effects include both direct effects which result from the activity and 
occur at the same time and place as the activity, and indirect 
(cumulative and secondary) effects which result from the activity and 
are later in time or farther removed in distance, but are still 
reasonably foreseeable. Indirect effects are effects resulting from the 
incremental impact of the federal action when added to other past, 
present, and reasonably foreseeable actions, regardless of what 
person(s) undertake(s) such actions. The term ``affects'' means have an 
effect on. Effects on any coastal use or resource may also be referred 
to as ``coastal effects.''


Sec. 930.152  Application.

    (a) This subpart applies to federal actions having interstate 
coastal effects, and supplements the relevant requirements contained in 
15 CFR part 930, subparts C (Consistency for Federal Agency 
Activities), D (Consistency for Activities Requiring a Federal License 
or Permit), E (Consistency for OCS Exploration, Development and 
Production Activities) and F (Consistency for Federal Assistance to 
State and Local Governments). Except as otherwise provided by this 
subpart, the requirements of other relevant subparts of part 930 apply 
to activities having interstate coastal effects.
    (b) Federal consistency is a requirement on federal actions 
affecting any coastal use or resource of a state with a federally-
approved coastal management program, regardless of the activities' 
locations (including states without a federally approved coastal 
management program). The federal consistency requirement does not alter 
a coastal state's jurisdiction. The federal consistency requirement 
does not give states the authority to review the application of laws, 
regulations, or policies of any other state. Rather, the Act allows a 
state coastal management program to review federal actions and may 
preclude federal action as a result of a state objection, even if the 
objecting state is not the state in which the activity will occur. Such 
objections to interstate activities under subparts D, E and F may be 
overridden by the Secretary pursuant to subpart H of this part.


Sec. 930.153  Coordination between states in developing coastal 
management policies.

    Coastal states are encouraged to give high priority to:
    (a) Coordinating state coastal management planning, policies, and 
programs with respect to contiguous areas of such states;
    (b) Studying, planning, and implementing unified coastal management 
policies with respect to such areas; and
    (c) Establishing an effective mechanism, and adopting a federal-
state consultation procedure, for the identification, examination, and 
cooperative resolution of mutual problems with respect to activities 
having interstate coastal effects.


Sec. 930.154  Listing activities subject to routine interstate 
consistency review.

    (a) Geographic location of listed activities. Each coastal state 
intending to conduct a consistency review of federal activities 
occurring in another state shall:
    (1) List those Federal agency activities, federal license or permit 
activities, and federal assistance activities that the state intends to 
routinely review for consistency; and
    (2) Generally describe the geographic location for each type of 
listed activity.
    (b) In establishing the geographic location of interstate 
consistency review, each state must notify and consult with the state 
in which the listed activity will occur, as well as with relevant 
Federal agencies.
    (c) Demonstrate effects. In describing the geographic location for 
interstate consistency reviews, the State agency shall provide 
information to the Director that coastal effects from listed activities 
occurring within the geographic area are reasonably foreseeable. Listed 
activities may have different geographic location descriptions, 
depending on the nature of the activity and its effects on any coastal 
use or resource. For example, the geographic location for activities 
affecting water resources or uses could be described by shared water 
bodies, river basins, boundaries under the state's coastal nonpoint 
pollution control program, or other ecologically identifiable areas.
    (d) Director approval. Coastal states shall submit their lists and 
geographic location descriptions developed under this section to the 
Director for approval as a routine program change under subpart H of 15 
CFR part 923. Each state submitting this program change shall include 
evidence of consultation with states in which the activity will occur, 
evidence of consultation with relevant Federal agencies, and any 
agreements with other states and Federal agencies regarding 
coordination of activities.
    (e) State failure to list interstate activities. A coastal state 
that fails to list

[[Page 20302]]

federal activities subject to interstate review, or to describe the 
geographic location for these activities, under paragraphs (a) through 
(d) of this section, may not exercise its right to review activities 
occurring in other states, until the state meets the listing 
requirements. The listing of activities subject to interstate 
consistency review, and the description of the geographic location for 
those listed activities, should ensure that coastal states have the 
opportunity to review relevant activities occurring in other states. 
States may amend their lists and geographic location descriptions 
pursuant to the requirements of this subpart and subpart H of 15 CFR 
part 923. States which have complied with paragraphs (a) through (d) of 
this section may also use the procedure at Sec. 930.54 to review 
unlisted activities. States will have a transition period of 18 months 
from the date this rule takes effect. In that time a state may review 
an interstate activity pursuant to Sec. 930.54 of this part. After the 
transition period states must comply with this subpart in order to 
review interstate activities.


Sec. 930.155  Federal and State agency coordination.

    (a) Identifying activities subject to the consistency requirement. 
The provisions of this subpart are neither a substitute for nor 
eliminate the statutory requirement of federal consistency with the 
enforceable policies of state management programs for all activities 
affecting any coastal use or resource. Federal agencies shall submit 
consistency determinations to relevant State agencies for activities 
having coastal effects, regardless of location, and regardless of 
whether the activity is listed.
    (b) Notifying affected states. Federal agencies, applicants or 
applicant agencies proposing activities listed for interstate 
consistency review, or determined by the Federal agency, applicant or 
applicant agency to have an effect on any coastal use or resource, 
shall notify each affected coastal state of the proposed activity. 
State agencies may also notify Federal agencies and applicants of 
listed and unlisted activities subject to State agency review and the 
requirements of this subpart.
    (c) Federal and State agency coordination. Following notification 
of the proposed activity, the Federal agency or applicant or applicant 
agency shall coordinate with all affected states with approved coastal 
management programs in evaluating the consistency of the activity with 
the enforceable policies of each such program.
    (d) Notice of intent to review. Within 30 days from receipt of the 
consistency determination or certification and necessary data and 
information, or within 30 days from receipt of notice of a listed 
federal assistance activity, each state intending to review an activity 
occurring in another state must notify the applicant or applicant 
agency (if any), the Federal agency, the state in which the activity 
will occur (either the state's coastal management program, or if the 
state does not have a coastal management program, the Governor's 
office), and the Director, of its intent to review the activity for 
consistency. The state's notice to the parties must be postmarked by 
the 30th day after receipt of the consistency determination or 
certification. If a state fails, within the 30 days, to notify the 
applicant or applicant agency (if any), the Federal agency, the state 
in which the activity will occur, and the Director, of its intent to 
review the activity, then the state waives its right to review the 
activity for consistency. The waiver does not apply where the state 
intending to review the activity does not receive notice of the 
activity.


Sec. 930.156  Content of a consistency determination or certification 
and State agency response.

    (a) In addition to the applicable requirements for consistency 
determinations and certifications contained in subparts C, D and E of 
this part, the determination or certification shall include a statement 
that the Federal agency or applicant has coordinated with affected 
states with approved management programs in developing the proposed 
activity.
    (b) The Federal agency or applicant is encouraged to prepare one 
determination or certification that will satisfy the requirements of 
all affected states with approved management programs.
    (c) State agency responses shall follow the applicable requirements 
contained in subparts C, D, E and F of this part.


Sec. 930.157  Mediation and informal negotiations.

    The relevant provisions contained in subpart G of this part are 
available for resolution of disputes between affected states, relevant 
Federal agencies, and applicants or applicant agencies. The parties to 
the dispute are also encouraged to use alternative means for resolving 
their disagreement. OCRM shall be available to assist the parties in 
these efforts.

[FR Doc. 00-8982 Filed 4-13-00; 8:45 am]
BILLING CODE 3510-08-U