[Federal Register Volume 68, Number 112 (Wednesday, June 11, 2003)]
[Proposed Rules]
[Pages 34851-34874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14663]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 930

[Docket No. 030604145-3145-01]
RIN 0648-AR16


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) 
proposes to revise the Federal Consistency regulations under the 
Coastal Zone Management Act of 1972 (CZMA). NOAA is proposing this rule 
to address the CZMA-related recommendations of the Report of the 
National Energy Policy Development Group (Energy Report) as described 
in NOAA's July 2, 2002, Advanced Notice of Proposed Rulemaking (67 FR 
44407-44410) (ANPR). This proposed rule seeks to make improvements to 
the Federal Consistency regulations to clarify some sections and 
provide greater transparency and predictability to the Federal 
Consistency regulations.

DATES: Comments on this document must be received by July 11, 2003.

ADDRESSES: Please send comments as an attachment to an email in either 
WordPerfect or MSWord, or in the body of an email, to 
[email protected].
    Address all comments regarding this notice to David Kaiser, Federal 
Consistency Coordinator, Coastal Programs Division, Office of Ocean and 
Coastal Resource Management, NOAA, 1305 East-West Highway, 11th Floor, 
Silver Spring, MD 20910. Written comments may also be sent to this 
address.
    All comments received by the comment deadline, this Federal 
Register notice, and an underline/strikeout version of the sections of 
the regulations proposed to be revised will be posted at OCRM's Federal 
Consistency Web page at: http://coastalmanagement.noaa.gov/czm/federal_consistency.html.

FOR FURTHER INFORMATION CONTACT: David Kaiser, Federal Consistency 
Coordinator, OCRM/NOAA, 301-713-3155 ext. 144, [email protected].

[[Page 34852]]


SUPPLEMENTARY INFORMATION:

I. Background

    For nearly 30 years the CZMA has met the needs of coastal States, 
Great Lake States and United States Trust Territories and Commonwealths 
(collectively referred to as ``coastal States'' or ``States''), Federal 
agencies, industry and the public to balance the protection of coastal 
resources with coastal development, including energy development. When 
States develop and amend their Coastal Management Programs (CMPs), and 
when making coastal management decisions, the CZMA requires the States 
to adequately consider the national interest in the CZMA objectives and 
to give priority consideration to coastal dependant uses and processes 
for facilities related to national defense, energy, fisheries, 
recreation, ports and transportation.
    States have collaborated with industry on a variety of energy 
facilities, including oil and gas pipelines, nuclear power plants, 
hydroelectric facilities, and alternative energy development. States 
have reviewed and approved thousands of offshore oil and gas facilities 
and related onshore support facilities. On December 8, 2000, NOAA 
issued a comprehensive revision to the Federal Consistency regulations, 
which reflected substantial effort and participation by Federal 
agencies, States, industry, and the public, over a five year period. 
Given this recent broad-based review, NOAA is not re-evaluating the 
2000 final rule, rather it is making improvements to address the issues 
raised in the ANPR and to make other technical modifications.
    In February 2001, the Vice President established the National 
Energy Policy Development Group to bring together business, government, 
local communities and citizens to promote a dependable, affordable, and 
environmentally sound National Energy Policy. Vice-President Cheney 
submitted the Energy Report to President Bush on May 16, 2001.
    The Energy Report contains numerous recommendations for obtaining a 
long-term, comprehensive energy strategy to advance new, 
environmentally beneficial technologies to increase energy supplies and 
encourage less polluting, more efficient energy use. The CZMA and the 
Outer Continental Shelf Lands Act (OCSLA), a statute administered by 
the Minerals Management Service (MMS) within the Department of the 
Interior (Interior), are specifically mentioned. The Energy Report 
found that the effectiveness of Commerce and Interior programs are 
``sometimes lost through a lack of clearly defined requirements and 
information needs from federal and state entities, as well as uncertain 
deadlines during the process.'' To address these issues, the Energy 
Report recommended that Commerce and Interior ``re-examine the current 
federal legal and policy regime (statutes, regulations, and Executive 
Orders) to determine if changes are needed regarding energy-related 
activities and the siting of energy facilities in the coastal zone and 
on the Outer Continental Shelf (OCS).'' Energy Report at 5-7.
    In July 2002, NOAA published the ANPR seeking comments on whether 
improvements could be made to NOAA's Federal Consistency regulations. 
This proposed rulemaking is the product of recommendations contained in 
the Energy Report and comments received in response to the ANPR.

II. History of the CZMA and NOAA's Federal Consistency Regulations

    The CZMA was enacted in 1972 to encourage States to be proactive in 
managing natural resources for their benefit and the benefit of the 
Nation. The CZMA recognizes a national interest in the resources of the 
coastal zone and in the balancing of competing uses of those resources. 
The CZMA is a voluntary program for States. If a State elects to 
participate it must develop and implement a CMP pursuant to Federal 
guidelines. State CMPs are comprehensive management plans that describe 
the uses subject to the management program, the authorities and 
enforceable policies of the management program, the boundaries of the 
State's coastal zone, the organization of the management program, and 
other State coastal management concerns. The State CMPs are developed 
with the participation of Federal agencies, industry, other interested 
groups and the public. Thirty-five coastal States are eligible to 
participate. Thirty-four of the eligible States have federally approved 
CMPs. Illinois is not currently participating.
    Once NOAA approves a State's CMP, then the CZMA Federal Consistency 
provision applies. Federal Consistency is a limited waiver of Federal 
supremacy and authority. Federal agency activities that have coastal 
effects must be consistent to the maximum extent practicable with the 
federally approved enforceable policies of the State's CMP. In 
addition, non-Federal applicants for Federal authorizations and funding 
must be fully consistent with the enforceable policies of State CMPs. 
The Federal Consistency provision is a cornerstone of the CZMA program 
and a primary incentive for States to participate. While States have 
negotiated changes to thousands of Federal actions over the years, 
States have concurred with approximately 93% of all Federal actions 
reviewed.
    NOAA's Federal Consistency regulations, first promulgated in 1979, 
are designed to provide reliable procedures and predictability to the 
implementation of Federal Consistency. In general, the regulations 
operate well for the Federal and State agencies and permit applicants 
and provide a reasonable interpretation of the CZMA's broad 
requirements. When Congress amended the CZMA in 1990, it specifically 
endorsed NOAA's consistency regulations and interpretation of the CZMA. 
However, changes to the CZMA in 1990 and 1996 also necessitated 
revisions to the regulations.
    In late 1996, OCRM began a process to revise the regulations by 
informally consulting and collaborating with Federal agencies, States, 
industry, Congress, and other interested parties. NOAA submitted two 
sets of draft rules to States, Federal agencies and others for comments 
and produced written responses to comments to each draft, and then 
issued a proposed rule in April 2000. NOAA published a final rule on 
December 8, 2000, which became effective on January 8, 2001.
    Most of the changes in the revised regulations were dictated by 
changes in the CZMA or by specific statements in the accompanying 
legislative history. For instance, the new regulations added language 
concerning the scope of the Federal Consistency ``effects test.'' Prior 
to the 1990 amendments, Federal agency activities ``directly 
affecting'' the coastal zone were subject to Federal Consistency. The 
amendments broadened this language by dropping the word ``directly'' to 
include actions with ``effects'' on any land or water use or natural 
resource of the coastal zone. Other changes in the 2000 final rule 
improved and clarified procedural processes based on long-standing 
interpretive practice by NOAA.

III. The Role of the CZMA in OCS Energy Development

    The CZMA and the OCSLA interact both by explicit cross-reference in 
the statutes and through their regulatory implementation. Both statutes 
mandate State review of OCS oil and gas Exploration Plans (EP's) and 
Development and Production Plans (DPP's). Both statutes and their 
corresponding regulations provide a

[[Page 34853]]

compatible and interrelated process for States to review EP's and 
DPP's.
    When MMS offers an OCS lease sale, it is considered a Federal 
agency activity. If MMS determines that the lease sale will have 
reasonably foreseeable coastal effects, then MMS provides a CZMA 
consistency determination to the affected State(s) stating whether the 
lease sale is ``consistent to the maximum extent practicable'' with the 
enforceable policies of the State's CMP. If the State objects, MMS may 
still proceed with the lease sale if MMS' administrative record and the 
OCSLA shows that it is fully consistent or consistent to the maximum 
extent practicable.
    The CZMA requires that when a lessee seeks MMS approval for its EP 
or DPP, the lessee must certify to the affected State(s) that the 
activities authorized by the licenses or permits described in the plans 
are fully consistent with the enforceable policies of the State's CMP. 
If the State objects to the consistency certification, then MMS is 
prohibited from approving the license or permits described in detail in 
the EP or DPP. The lessee may appeal to the Secretary of Commerce to 
override the State objection and allow MMS to issue its approvals 
described in the plan. When deciding an appeal, the Secretary, among 
other elements, balances the national interest in energy development 
against adverse effects on coastal resources and coastal uses.
    The CZMA and NOAA's regulations ensure that the national interest 
in the CZMA objectives are furthered. These safeguards are discussed 
below using OCS oil and gas activities to illustrate.
    The ``Effects Test.'' As discussed above, Federal Consistency 
review is triggered only when a Federal action has reasonably 
foreseeable coastal effects, referred to as the ``effects test.'' 
Consistency does NOT apply to every action or authorization of a 
Federal agency, or of a non-Federal applicant for Federal 
authorizations.
    For OCS oil and gas lease sales, MMS determines if coastal effects 
are reasonably foreseeable and provides affected States with a 
Consistency Determination. For example, MMS has established the Eastern 
Planning, Central Planning and Western Planning Areas for the Gulf of 
Mexico. MMS may determine that lease sales in the Eastern Planning Area 
will not have reasonably foreseeable effects on coastal uses or 
resources within the Central Planning Area. Therefore, MMS may choose 
not to provide States adjacent to the Central Planning Area with a 
Consistency Determination. MMS could also determine that a lease sale 
held far offshore in the Eastern Planning Area would not have coastal 
effects on Florida or Alabama coastal uses or resources.
    For OCS EP's and DPP's the CZMA mandates, as a general matter, 
State consistency review. However, as with Federal agency activities, a 
coastal State's ability to review the Plans stops where coastal effects 
are not reasonably foreseeable. For OCS EP's and DPP's located far 
offshore, this would be a factual matter to be determined by the State, 
applicant and MMS on a case-by-case basis.
    Under NOAA's regulations, if a State wanted to ensure that OCS EP's 
and DPP's located in a particular offshore area would automatically be 
subject to State CZMA review, a State could, if NOAA approved, amend 
its CMP to specifically describe a geographic location outside the 
State's coastal zone where such plans would be subject to State review. 
See 15 CFR 930.53. Or, if a State wanted to review an EP or DPP where 
the applicant and/or MMS have asserted that coastal effects are not 
reasonably foreseeable, the State could request approval from NOAA to 
review such plans on a case-by-case basis. See 15 CFR 930.54 (unlisted 
activities). In both situations, NOAA would approve only if the State 
could make a factual showing that effects on its coastal uses or 
resources are reasonably foreseeable as a result of a particular EP or 
DPP.
    NOAA Approval of State CMPs. NOAA, with substantial input from 
Federal agencies, local governments, industry, non-governmental 
organizations and the public, must approve State CMPs and their 
enforceable policies, including later changes to a State's CMP. NOAA's 
required approval ensures consideration of Federal agency activities 
and authorizations. For example, NOAA has denied State requests to 
include policies in its federally approved CMP that would prohibit all 
oil and gas development or support facilities off its coast because 
such policies conflict with the CZMA requirements to consider the 
national interest in energy development and to balance resource 
protection with coastal uses of national significance.
    ``Consistent to the Maximum Extent Practicable and Fully 
Consistent.'' For Federal agency activities under CZMA section 
307(c)(1), such as the OCS Lease Sales, a Federal agency may proceed 
with the activity over a State's objection if the Federal agency is 
Consistent to the Maximum Extent Practicable with the enforceable 
policies of the State's CMP. This means that even if a State objects, 
MMS may proceed with an OCS lease sale if MMS provides the State the 
reasons the OCSLA and MMS's administrative record for the lease sale 
requires MMS to proceed, despite inconsistency with the State's 
enforceable policies. MMS could also proceed if it determined that its 
activity was fully consistent. Under NOAA's regulations, the consistent 
to the maximum extent practicable standard also allows Federal agencies 
to deviate from State enforceable policies and CZMA procedures due to 
unforeseen circumstances and emergencies.
    Appeal to the Secretary of Commerce. For non-Federal applicants for 
Federal authorizations, such as OCS lessees, the applicant may appeal a 
State's objection to the Secretary of Commerce pursuant to CZMA 
sections 307(c)(3) and (d). The State's objection is overridden if the 
Secretary finds that the activity is consistent with the objectives or 
purposes of the CZMA or is necessary in the interest of national 
security. If the Secretary overrides the State's objection, then the 
Federal agency may issue its authorization.
    Since 1978, MMS has approved over 10,600 EP's and over 6,000 DPP's. 
States have concurred with nearly all of these plans. In the 30-year 
history of the CZMA, there have been only 14 instances where the oil 
and gas industry appealed a State's Federal Consistency objection to 
the Secretary of Commerce and the Secretary issued a decision (there 
were several appeals where the Secretary did not issue a decision 
because the appeals were withdrawn due to settlement negotiations 
between the State and applicant or a settlement agreement between the 
Federal government and the oil companies involved in the projects). Of 
the 14 decisions (1 DPP and 13 EP's), there were 7 decisions to 
override the State's objection and 7 decisions not to override the 
State.
    Since the 1990 amendments to the CZMA, there have been several OCS 
oil and gas lease sales by MMS and only one State objection. In that 
one objection OCRM determined that the State's objection was not based 
on enforceable policies, MMS determined that it was consistent to the 
maximum extent practicable with the State's CMP, and the lease sale 
proceeded. Thus, all lease sales offered by MMS since the 1990 
amendments have proceeded under the CZMA Federal Consistency provision. 
In addition, since 1990, there have been six State objections to OCS 
plans. In three of those cases, the Secretary did not override the 
State's objection. In two of the cases the Secretary did override the 
State allowing MMS approval of the permits

[[Page 34854]]

described in the plans, and in one case the State objection was 
withdrawn as a result of a settlement agreement between the Federal 
government and the oil companies involved in the project.
    Presidential Exemption. After any final judgement, decree, or order 
of any Federal court, the President may exempt from compliance the 
elements of a Federal agency activity that are found by a Federal court 
to be inconsistent with a State's CMP, if the President determines that 
the activity is in the paramount interest of the United States. CZMA 
Sec.  307(c)(1)(B). This exemption was added to the statute in 1990 and 
has not yet been used.
    Mediation. While mediation is not technically a legal safeguard as 
those described above, it has been used to resolve Federal Consistency 
disputes and allowed Federal actions to proceed. In the event of a 
serious disagreement between a Federal agency and a State, either party 
may request that the Secretary of Commerce mediate the dispute. NOAA's 
regulations also provide for OCRM mediation to resolve disputes between 
States, Federal agencies, and other parties.

IV. Explanation of Proposed Changes to the Federal Consistency 
Regulations

    Rule Change 1: Sec.  930.1(b) Overall Objectives. This proposed 
change moves the parenthetical with the description of ``Federal 
action'' from Sec.  930.11(g) to the first instance of the term. 
Federal action is used throughout the regulations to refer, when 
appropriate, to subparts C, D, E, F and I.
    Rule Change 2: Sec.  930.10 Definitions Table of Contents. 
Definition of Failure Substantially to Comply with an OCS Plan. The 
reference to section 930.86(d) is incorrect. There is no 930.86(d). The 
reference should be to 930.85(d) under the 2000 rule, and what is now 
proposed as 930.85(c).
    Rule Change 3: Sec.  930.11(g) Definitions. Effect on any coastal 
use or resource (coastal effects). This proposed change moves the 
parenthetical for ``Federal actions'' to the first instance of Federal 
action in Sec.  930.1(b) and proposes to insert more specific language 
for Federal agency activity and federal license or permit activity.
    Rule Change 4: Sec.  930.31(a) Federal agency activity. This 
proposed change would not alter the current application of the 
definition of Federal agency activity, but would clarify that a 
``function'' by a Federal agency refers to an actual proposal for 
action. The examples included would also be re-written to emphasize 
that a proposed action is an essential element of the definition.
    It has always been NOAA's view that Federal Consistency applies to 
proposals to take an action or initiate a series of actions that have 
reasonably foreseeable coastal effects, and not to agency deliberations 
or internal tasks related to a proposed agency action. Thus, a planning 
document that explores possible projects or priorities for an agency is 
not a Federal agency activity, as there is no action proposed. However, 
as included in the proposed revised example, a Federal agency plan or 
rulemaking that documents a decision or proposes a new action would be 
a Federal agency activity subject to the effects test.
    Once a Federal agency proposes an action, it is the proposal for 
action that is the subject of the consistency review. The State only 
reviews the proposed action and does not review all tasks, ministerial 
activities, meetings, discussions, and exchanges of views incidental or 
related to a proposed action, and does not review other aspects of a 
Federal agency's deliberative process. In addition, Federal agency 
activities do not include interim or preliminary activities incidental 
or related to a proposed action for which a consistency determination 
has been or will be submitted and which do not make new commitments for 
actions with coastal effects. Such interim or preliminary activities do 
not propose independent actions that are subject to Federal Consistency 
review.
    For example, where a Federal agency has not yet submitted a 
consistency determination to a State or where a State has concurred 
with a Federal agency's consistency determination for a proposed 
action, planning activities may occur before or after the State's 
Federal Consistency review that are incidental to the proposed action 
and which are related to the agency's deliberative process. In these 
cases the interim or preliminary activity would not be subject to 
Federal Consistency review.
    In the OCS oil and gas context, examples of interim or preliminary 
activities that are not Federal agency activities include the 
publication of OCS 5-Year programs, as discussed below; or rulemakings 
that establish administrative procedures for OCS-related activities 
that do not affect coastal uses or resources (e.g., rulemaking 
prescribing the completion and submission of forms). Consistent with 
the Ninth Circuit's decision in California ex rel. Cal. Coastal Comm'n 
v. Norton, 150 F. Supp.2d 1046 (N.D. Cal. 2001), aff'd, 311 F.3d 1162 
(9th Cir. 2002), granting or directing suspensions of OCS operations or 
production by MMS would be interim or preliminary activities and would 
not be Federal agency activities when a lease suspension would either 
not have coastal effects or, if the lease suspension set forth 
milestones that would have coastal effects, the State had previously 
reviewed the lease sale for Federal Consistency. (The Ninth Circuit 
emphasized that the leases at issue in California v. Norton had never 
been reviewed by California.) See NOAA's response to COMMENT 33 for 
further discussion on lease suspensions and California v. Norton and 
NOAA's conclusion that in all foreseeable instances, lease suspensions 
would not be subject to Federal Consistency review since (1) in 
general, they do not authorize activities with coastal effects, and (2) 
if they did contain activities with coastal effects, the activities and 
coastal effects would be covered in a State's review of a lease sale, 
an EP or a DPP. If a State believes that a particular lease suspension 
should be subject to Federal Consistency, the State could notify MMS. 
MMS could determine that the lease suspension is an interim activity 
that does not propose a new action with coastal effects and/or provide 
the State with a negative determination pursuant to 15 CFR Sec.  
930.35.
    Not all ``planning'' or ``rulemaking'' activities are subject to 
Federal Consistency since such planning or rulemaking may merely be 
part of the agency's deliberative process. Likewise, the plan or 
rulemaking may not propose an action with reasonably foreseeable 
coastal effects and would therefore not be subject to Federal 
Consistency. If, however, an agency's administrative deliberations 
result in an actual plan to take an action, then that plan could be 
subject to Federal Consistency if coastal effects are reasonably 
foreseeable. For example, in the OCS oil and gas program, MMS produces 
a 5-year Leasing Program ``Plan.'' MMS has informed NOAA that the 5-
Year Program Plan is a preliminary activity that does not set forth a 
proposal for action and thus, coastal effects cannot be determined at 
this stage. Accordingly, MMS' proposal for action would occur when MMS 
conducts a particular OCS oil and gas lease sale.
    In another example of what is subject to State consistency review, 
consider the situation when the Navy proposes to construct a pier. The 
project involves compliance with numerous federal laws, e.g., National 
Environmental Policy Act (NEPA) documents,

[[Page 34855]]

Endangered Species Act (ESA) section 7 consultation, a Rivers and 
Harbors Act section 10 permit from the Army Corps of Engineers (Corps), 
contracts with a construction company to build the pier, etc. These 
various authorizations and activities related to the Navy's proposal to 
build the pier are not separate Federal agency activities subject to 
Federal Consistency. The Federal agency activity for purposes of 15 CFR 
930.31 is the proposal to build the pier. The State reviews the pier 
proposal. The State uses the information provided by the Navy, pursuant 
to 15 CFR 930.39(a), that is necessary to evaluate coastal effects and 
determine consistency with the State's enforceable policies. The State 
may request, or the Navy may provide, the Corps section 10 permit 
application, or the Biological Opinion under the ESA or the NEPA EIS, 
with the Navy's consistency determination. Or information in these 
documents may be used as part of the necessary information required by 
15 CFR 930.39, but they are not required to be part of the information 
required in Sec.  930.39(a) and are not reviewed as the proposed 
Federal agency activity for consistency.
    NOAA has proposed to change ``event(s)'' to ``activity(ies)'' since 
the term ``activities'' more closely follows the statute and NOAA's 
regulations.
    Rule Change 5: Sec.  930.31(d) Federal agency activity. General 
Permits. In the 2000 rule, NOAA acknowledged the hybrid nature of 
general permits and gave Federal agencies the option of issuing a 
general permit under either CZMA Sec.  307(c)(1) (Federal agency 
activity) or CZMA Sec.  307(c)(3)(A) (Federal license or permit 
activity), even though NOAA has opined that, for CZMA purposes, a 
general permit was more appropriately treated as a Federal agency 
activity. In this proposed rule, NOAA would remove the option to allow 
Federal agencies to treat their general permits as a Federal license or 
permit activity for purposes of complying with CZMA Sec.  307 and 15 
CFR part 930. If a general permit is proposed by a Federal agency and 
coastal effects are reasonably foreseeable, then the general permit 
would be treated as a Federal agency activity under CZMA Sec.  
307(c)(1) and 15 CFR part 930, subpart C. NOAA's determination that 
general permits are Federal agency activities and not Federal license 
or permit activities under CZMA Sec.  307 is for CZMA purposes only and 
does not affect the status of general permits under the Administrative 
Procedure Act or under any other Federal statute.
    There are several reasons why a general permit cannot be a Federal 
license or permit activity under CZMA Sec.  307. Under NOAA's 
regulations, Federal agencies are not ``applicants'' within the meaning 
of 15 CFR 930.52. See 65 FR 77145 (col 1&2) (Dec. 8, 2000). Even if 
NOAA were to change its regulations to allow a Federal agency to be an 
``applicant,'' the Federal agency could not appeal the State's 
objection to the Secretary of Commerce.
    Further, even if a general permit were treated as a Federal license 
or permit activity for CZMA Sec.  307 purposes and a State objected, 
the potential users of a general permit could not appeal the State's 
objection since there would be no case specific factual inquiry on 
which the Secretary could base her decision.
    Other changes would clarify that if a State objects to a 
Consistency Determination for a general permit, the general permit 
would still be in legal effect for that State, but that 15 CFR part 
930, subpart C of the consistency regulations would no longer apply. 
Thus, a State objection to a Consistency Determination for the issuance 
of a general permit would alter the form of CZMA compliance required, 
transforming the general permit into a series of case-by-case CZMA 
decisions and requiring each potential user of the general permit to 
submit an individual consistency certification in compliance with 15 
CFR part 930, subpart D.
    NOAA reiterates that if a State concurs with a consistency 
determination for general permit, then the State may not subsequently 
review individual uses of the general permit under subpart C or D. For 
example, in the OCS oil and gas context, if a State has concurred with 
the Environmental Protection Agency's Consistency Determination for an 
OCS National Pollutant Discharge Elimination System (NPDES) general 
permit under the Clean Water Act, then the State may not review the use 
of the NPDES general permit for consistency at the OCS EP or DPP stage 
of reviews or when a facility files a notice of intent to be covered by 
a general permit under the NPDES regulations. If, however, a State 
objects to the OCS NPDES general permit, then each user, or 
``applicant'' in CZMA parlance, must file a consistency certification 
with the State and obtain the State's concurrence before the applicant 
may avail itself of the NPDES general permit.
    Rule Change 6: Sec.  930.35(d) General Negative Determination. 
Section 930.35(d) would be changed to (e) and a new section 930.35(d) 
would be added. The General Negative Determination (General ND) would 
be an administrative convenience for Federal agencies to use when they 
undertake repetitive activities that, either on an individual, case-by-
case basis or cumulatively, do not have coastal effects. The General ND 
would not diminish the factual basis required for Federal Consistency 
reviews. The Federal agency must still make a factual effects analysis 
for the repetitive activities. It is proposed as an analogue to the 
existing General Consistency Determinations (15 CFR 930.36(c)), for 
repetitive activities which do have cumulative effects.
    A General ND would not affect the application of the ``effects 
test'' and the requirement for Federal agencies to provide Consistency 
Determinations to coastal States when there are reasonably foreseeable 
coastal effects. For example, a General ND may apply to activities far 
away from the coastal zone because coastal effects are not foreseeable, 
but might not apply to the same activities proposed in or near the 
coastal zone where the proximity to coastal uses or resources may have 
coastal effects and require a General Consistency Determination or 
Consistency Determination.
    A Federal agency would not be required to use a General ND. If any 
of the conditions for a negative determination are met, then a Federal 
agency could choose to provide the State with either a Negative 
Determination, or if applicable, a General ND. The conditions for a 
Negative Determination are when a Federal agency determines that there 
will not be coastal effects and the activity is listed in the State's 
program, the State has notified the Federal agency that it believes 
coastal effects are reasonably foreseeable, the activity is the same as 
or is similar to activities for which consistency determinations have 
been prepared in the past, or the Federal agency undertook a thorough 
consistency assessment and developed initial findings on the coastal 
effects of the activity. See 15 CFR 930.35(a)(1)-(3).
    If a State subsequently finds that a General ND may no longer be 
applicable, the State agency may request that the Federal agency 
reassess the General ND. In the case of a disagreement between the 
State and the Federal agency, the conflict resolution provisions of 
subpart G are available.
    Rule Change 7: Sec.  930.41(a) State agency response. This change 
would clarify when the State's consistency review period begins for 
Federal agency activities. The proposed changes provide additional 
clarification to States that the State's determination of whether the 
information provided by

[[Page 34856]]

the Federal agency pursuant to 15 CFR 930.39(a) is complete, is not a 
substantive review. Instead, it is a ``checklist'' review to see if the 
description of the activity, the coastal effects, and the evaluation of 
the State's enforceable policies are included in the submission to the 
State agency. If the items required by Sec.  930.39(a) are included, 
then the 60-day review starts. This review does not determine or 
evaluate the substantive adequacy of the information. The adequacy of 
the information is a component of the State's substantive review which 
occurs during the 60-day review period.
    To help resolve disputes as to when the 60-day review period 
started when a State later claims that required information was not 
provided, NOAA proposes to replace the requirement to ``immediately'' 
notify the Federal agency that information required by Sec.  930.39(a) 
is missing with a 14-day notification period. If the State agency has 
not notified the Federal agency of missing information within this 14-
day period, then the State waives the ability to make that claim and 
the 60-day review period started when the State received the initial 
determination and information. This would require that State agencies 
pay close attention to the consistency determinations they receive, but 
would not affect the State's ability to review the activity or to 
object for lack of information at the end of the 60-day review period.
    Rule Change 8: Sec.  930.51(a) Federal license or permit. The 
proposed changes would emphasize and clarify NOAA's long-standing view 
of the elements that are needed to subject a ``federal license or 
permit'' to State Federal Consistency review. First, Federal law must 
require that the applicant obtain the federal authorization. Second, 
the purpose of the federal authorization is to allow a non-federal 
applicant to conduct a proposed activity. Third, the proposed activity 
to be federally permitted must have reasonably foreseeable effects on a 
State's coastal uses or resources, and fourth, the proposed activity 
was not previously reviewed by the State agency for Federal Consistency 
(unless the authorization is a renewal or major amendment pursuant to 
Sec.  930.51(b)). All four of these elements are required for Federal 
Consistency review.
    Federal license or permit does not include, for CZMA Federal 
Consistency purposes, federal authorizations for activities that do not 
have coastal effects. Federal Consistency does not apply to a required 
federal certification of an applicant's ministerial paperwork which is 
merely incidental or related to an activity that either does not have 
coastal effects or an activity that is already subject to Federal 
Consistency review. For example, when MMS makes certain determinations 
such as the qualification of bidders for OCS lease sales, bonding 
certifications, certifications of financial responsibility, approvals 
of departures from regulations in order to enhance safety. Or a Federal 
agency may be required to certify the equipment to be used for an 
activity which has already been the subject of a consistency review. 
Each of these certifications are merely incidental to the activity 
undertaken by the applicant which has already or will in the near 
future be the subject of a full Federal Consistency review.
    As another example, MMS has ``Notification requirements'' which are 
not subject to Federal Consistency since they only require the operator 
to notify MMS of an activity and MMS' approval is not required. Another 
example would be when a power plant is transporting spent nuclear waste 
by ship; the plant must provide the U.S. Coast Guard with a 
transportation plan which the Coast Guard reviews, but Coast Guard 
approval is not required by Federal law. Because Coast Guard approval 
was not required and the Coast Guard merely reviewed the transportation 
plan, there was no Federal Consistency review under CZMA Sec.  
307(c)(1) or 307(c)(3)(A).
    However, a lease issued by a Federal agency to a non-Federal entity 
that is the only authorization to use federal property for a non-
Federal activity would still be reviewable under the listed and 
unlisted requirements in Sec. Sec.  930.53 and 930.54, if the lease was 
required by law, the proposed activity will have coastal effects, and 
the State did not previously review a Federal authorization for the 
same project.
    Thus, the proposed change to the rule would ensure that the 
definition of ``Federal license or permits'' is not overly-inclusive or 
beyond the commonly understood meaning of license or permit, while at 
the same time retaining the phrase ``any required authorization'' to 
capture any form of Federal license or permit that is: (1) Required by 
Federal law, (2) authorizes an activity, (3) the activity authorized 
has reasonably foreseeable coastal effects, and (4) the authorization 
is not incidental to a Federal license or permit previously reviewed by 
the State. Thus, the removal of the forms of approvals listed in the 
current language would not exclude a category of Federal authorizations 
from Federal Consistency, but would emphasize that any form of Federal 
authorization must have the required elements to be considered a 
``Federal license or permit'' for CZMA purposes.
    Factual disputes concerning whether a Federal authorization is 
subject to Federal Consistency can be addressed through NOAA's 
regulations regarding the review of listed or unlisted federal license 
or permit activities. 15 CFR 930.53 and 930.54.
    The effects test language at the end would be deleted as 
superfluous since subpart C contains the effects analysis for Federal 
agency activities.
    Rule Change 9: Sec.  930.51(e) Substantially different coastal 
effects. Section (e) was added in the 2000 rule to emphasize that 
determining whether the effects from a renewal or major amendment are 
substantially different is a case-by-case factual determination that 
requires the input of all parties. NOAA used the phrase ``the opinion 
of the State agency's views shall be accorded deference,'' (emphasis 
added) to help ensure that the State agency has the opportunity to 
review coastal effects which may be substantially different than 
previously reviewed. NOAA expected that the parties would discuss the 
matter and agree whether effects are substantially different. NOAA did 
not intend to use the phrase to have the State agency make the decision 
on whether coastal effects are substantially different. Thus, to 
provide clarification, NOAA proposes new language stating that the 
expert permitting Federal agency makes this determination after 
consulting with the State and applicant. If a State disagrees with a 
Federal agency's determination of substantially different coastal 
effects, then the State could either request NOAA mediation or seek 
judicial review to resolve the factual dispute.
    Rule Change 10: Sec.  930.58(a)(1) Necessary data and information. 
This change would provide a greater level of specificity for 
information requirements for federal license or permit activities. The 
purpose of Sec.  930.58 is to identify the information needed to start 
the six-month consistency review period and to the extent possible, 
identify the information needed by the State agency to make its 
concurrence or objection. Thus, the more specific the information 
requirements are, the more predictable and transparent the process.
    Section 930.58(a)(1) would be reorganized to clarify that 
``necessary data and information'' includes (1) a copy of the federal 
application, and (2) all supporting material provided to the Federal 
agency in support of the application, (3) information that is required 
and specifically described in the State's management program, and (4) 
if not included in 1 or 2, a detailed

[[Page 34857]]

description of the activity, its associated facilities and the coastal 
effects.
    NOAA proposes to remove the clause in Sec.  930.58(a)(1) that says 
``and comprehensive data and information sufficient to support the 
applicant's consistency certification.'' This clause is not needed 
since the rest of the section, especially as changed, describes the 
information NOAA determined necessary and Sec.  930.58(a)(2) allows the 
State to describe in its CMP necessary information in addition to that 
required by NOAA regulations. The language proposed to be removed is 
ambiguous as it could refer to the other paragraphs in this section or 
to other undefined information, and could create uncertainty in the 
determination of when the six-month review period starts.
    These changes would not affect a State's ability to specifically 
describe ``necessary data and information'' in the State's federally 
approved management program (Sec.  930.58(a)(2)), or to request 
additional information during the six-month review period (Sec.  
930.60(b)), or to object for lack of information (Sec.  930.63(c)).
    Rule Change 11: Sec.  930.58(a)(2) Necessary data and information 
(State permits). In the 2000 rule, NOAA allowed States to describe 
State permits as necessary data and information. Unfortunately, 
implementation of this provision had the potential to require 
applicants to obtain State permit approval before the six-month 
consistency review period could begin. NOAA does not believe the 
statutorily defined six-month review process anticipated such a 
conundrum. While it may be appropriate or necessary for a State to 
include complete State permit applications as necessary data and 
information, it is not appropriate to require an approved permit. Thus, 
NOAA proposes to remove ``State permits'' as eligible necessary data 
and information, but has retained State permit applications.
    Rule Change 12: Sec.  930.60 Commencement of State agency review. 
This change would clarify when the State's consistency review period 
begins for federal license or permit activities. The changes would 
provide additional clarification to States that the State's 
determination of whether the information provided by the applicant 
pursuant to 15 CFR 930.58 is complete, is not a substantive review. 
Instead it is a ``checklist'' review to see if the application, 
description of the activity, the coastal effects, the evaluation of the 
State's enforceable policies, and specific information described in the 
State's federally approved program are included in the submission to 
the State agency. If the items required by Sec.  930.58 are included, 
then the six-month review starts. This review does not determine or 
evaluate the substantive adequacy of the information. The adequacy of 
the information is a component of the State's substantive review which 
occurs during the six-month review period. The change would also 
further clarify that a State may not stop, stay or otherwise alter the 
consistency timeclock once it begins, unless the applicant agrees in 
writing to stay the time period for a specific or defined amount of 
time. NOAA proposes to delete the word ``extend'' because the six-month 
period is set by statute and cannot be extended by rule. Thus, the 
State agency and applicant can stay or ``toll'' the running of the six-
month period for an agreed upon time, after which the remainder of six-
month statutory period would continue.
    NOAA reiterates that if a State wants to require certain 
information prior to starting the six-month review period, the only way 
it can do so is to amend the State's management program to identify 
specific ``necessary data and information'' pursuant to Sec.  
930.58(a)(2).
    NOAA also proposes to change the section to remove a State's option 
of starting the six-month review period when a consistency 
certification has not been submitted. See below under Collier Decision 
for further information.
    The proposed re-write of paragraph (a)(2) is not a substantive 
change, but is merely a more clear restatement of the existing 
paragraph.
    The Collier Decision. Under the 2000 rule, Sec.  930.60(a)(1)(ii) 
allowed a State to start the six-month consistency review period even 
if the applicant had not provided a consistency certification or the 
necessary data and information. However, now, as described in Collier, 
NOAA has determined that a State could not start the six-month review 
without the applicant's consistency certification. See NOAA's Dismissal 
Letter in the Consistency Appeal of Collier Resources Company (April 
17, 2002). In Collier, NOAA determined that:

    An applicant's failure to provide a state with a consistency 
certification cannot divest a state of its authority pursuant to 
CZMA section 307(c)(3)(A). However, filing a state objection without 
an underlying consistency certification provided by the applicant is 
neither a remedy for the applicant's failure to comply with the 
CZMA, nor a valid exercise of [the State's] own CZMA authorities.
    The statutory language and scheme of the CZMA presumes that the 
applicant has the first opportunity to demonstrate that its activity 
is consistent with the enforceable policies of the state CMP. 
Section 307(c)(3)(A) provides in pertinent part: ``[a]t the earliest 
practicable time, the state or its designated agency shall notify 
the Federal agency concerned that the state concurs with or objects 
to the applicant's certification.'' The NOAA regulations also 
require a state objection be made in response to the applicant's 
consistency certification. 15 CFR 930.64. Likewise, consistency 
cannot be presumed without the receipt of a consistency 
certification. 16 U.S.C. 1456(c)(3)(A) and 15 CFR 930.63. Finally, 
NOAA's regulations anticipate that the applicant will have the first 
opportunity to provide the state with the necessary information and 
data to demonstrate consistency with the state CMP and that only 
after the receipt of that information can the state consistency 
review process begin. See 15 CFR 930.58.
    Given the language and structure of the statute and NOAA's 
implementing regulations, it is clear that an applicant's 
consistency certification is essential to a state's Federal 
consistency review. Therefore, I conclude that a State may not 
``object'' within the meaning of the CZMA, to an application for a 
Federal license or permit when no consistency certification has been 
submitted. Florida's objection in this case has no effect or is not 
valid.
    A coastal state is not without remedy, however, when a 
recalcitrant applicant declines to provide the necessary consistency 
certification. First, both the statute and the regulations make it 
clear that a Federal agency cannot issue a license or permit until 
``the state or its designated agency has concurred with the 
applicant's consistency certification or until by the state's 
failure to act, the concurrence is conclusively presumed.'' 16 
U.S.C. 1456(c)(3)(A). In addition, a state may seek enforcement of 
the CZMA in Federal court. Unlike the Secretary of Commerce, the 
Federal courts have the authority to require compliance with Federal 
law through the issuance of mandamus, injunction and other relief.
    Optimally, in matters such as this, where an applicant disagrees 
that its permit or license activity is subject to the provisions of 
a state CMP can be resolved through the availability of mediation 
services of NOAA's Office of Ocean and Coastal Resource Management 
(OCRM), 15 CFR 930.55, or an advisory letter issued by OCRM pursuant 
to 15 CFR 930.142 (15 CFR 930.3(2001)). While these informal 
procedures do not carry the weight of a federal court order, they 
represent the views of the expert agency charged with the 
implementation of the CZMA. These informal remedies are also more 
expedient and less costly than the Secretarial appeals process or 
federal litigation.

    While not central to the decision made in Collier, NOAA opined in 
Collier that the six-month review period could also only start after 
receipt of the necessary data and information. Id. However, NOAA has 
determined that a State could, if it wished to, start the six-month 
review upon receipt of a consistency certification, but without the 
necessary data and information (but could not then later stop the six-
month

[[Page 34858]]

time period without agreement from the applicant). NOAA makes this 
distinction because, as discussed in Collier, a consistency 
certification is central to the State's jurisdiction and authority 
under the statute to conduct a consistency review. Allowing necessary 
data and information to be submitted after the six-month period has 
begun provides flexibility to the State and applicant to remedy the 
submission of the necessary data and information during the six-month 
review.
    Rule Change 13: Sec.  930.63(d). The cross reference to 930.121(d) 
is incorrect. There is no 930.121(d). The reference should be to 
930.121(c).
    Rule Change 14: Sec.  930.76(a) and (b) Submission of an OCS plan, 
necessary data and information and consistency certification. These 
proposed changes would address information requirements for OCS plans. 
The changes would provide a more specific list of the information 
required. Clean Air Act and Clean Water Act permits are not added to 
NOAA's regulations as these permits are already required to be 
``described in detail'' in OCS plans and are covered under the State's 
review of the OCS plan. See 30 CFR 250.203(b)(4), 203(b)(19), 
204(b)(8)(ii) and 204(b)(14). Thus, States should not review CWA and 
CAA permit applications independently of the OCS plan review.
    While the status of the completion of NEPA documents is an issue 
raised by coastal States when performing consistency reviews, NOAA is 
not adding language requiring that NEPA documents be included as 
information necessary to start the six-month review period. A 
requirement that NEPA documents (draft or final) be completed prior to 
the start of the six-month review period would be incompatible with 
statutory requirements in the OCSLA. MMS must make its decision whether 
to approve an EP within 30 days of receipt of the EP. Within that 30-
day period, MMS completes its Environmental Assessment (EA). Thus, to 
meet OCSLA requirements and not to delay the CZMA process, MMS submits 
the EP and accompanying information to the State within days of receipt 
of the EP. The six-month review period starts when the State receives 
that information. MMS sends the EA to the State when the EA is 
completed. Since the State receives the EA within a very short period 
(20-30 days) after the start of the six-month review period, there is 
no harm to the State and the CZMA process is not delayed unnecessarily.
    For DPP's, where MMS prepares a new Environmental Impact Statement 
(EIS), there is additional time in the process and States, if they want 
a draft EIS prior to starting the six-month consistency review process, 
can amend their programs, pursuant to 15 CFR 930.58(a)(2), to include 
draft EIS' and other information as data and information necessary to 
start the six-month review. States will not be able to amend their 
programs to require final EIS' for OCSLA purposes as part of the 
necessary data and information because the OCSLA requires MMS to 
approve or deny a DPP within 60 days after completion of the final EIS. 
See 43 U.S.C. 1351(h) and 30 CFR 250.204(l). This would not provide 
sufficient time for the CZMA process.
    Paragraph (a) is proposed to be deleted and combined with (b) as 
(a) is redundant with (b), particularly (1) and (3).
    Rule Change 15: Sec.  930.77(a) Commencement of State agency review 
and public notice. This change would clarify when the State's 
consistency review period begins for OCS plans. The proposed changes 
would provide additional direction to States that the State's 
determination of whether the information provided by the person 
pursuant to 15 CFR 930.76 is complete, is not a substantive review. 
Instead, it is a ``checklist'' review to see if the OCS plan, 
description of the activity, the coastal effects, the evaluation of the 
State's enforceable policies, specific information described in the 
State's federally approved program, and information required by 
Interior's regulations are included in the submission to the State 
agency. If the items required by Sec.  930.76 are included, then the 
six-month review starts. This review does not determine the substantive 
adequacy of the information. The adequacy of the information is a 
component of the State's substantive review which occurs during the 
six-month review period.
    The proposed changes would also clarify that if the State wants to 
require additional information for its review of OCS plans, it must 
describe such information in its program, pursuant to Sec.  
930.58(a)(2).
    This section would also be changed to address the circumstances 
where a State believes the information submitted pursuant to NOAA's 
regulations is insufficient (e.g., either the analysis was 
substantively inadequate, or that the OCS plan addresses new activities 
or effects not foreseen and for which information was not provided). In 
such a case a State may request additional information. The proposed 
change would require that such a request be made within the first three 
months of the six-month review period. A request for additional 
information does not stop, stay or otherwise alter the six-month review 
period.
    Rule Change 16: Sec.  930.82 Amended OCS plans. To be consistent 
with Sec.  930.76(c), this proposed change would clarify that it is 
Interior, not the person, that submits the consistency certification 
and information to the State for amended OCS plans.
    Rule Change 17: Sec.  930.85(c) Failure to comply substantially 
with an approved OCS plan. While this section existed prior to the 2000 
rule revisions, NOAA proposes this change to more closely coordinate 
CZMA and OCSLA requirements. Under NOAA's regulations and the OCSLA 
program, it is MMS that determines whether a change to an OCS plan is 
``significant'' and thus, whether the change requires CZMA Federal 
Consistency review. This determination should be the same for failure 
to substantially comply with an approved OCS plan. This change would be 
consistent with CZMA section 307(c)(3)(B), and in fact the language is 
taken directly from the statute. The previous language was developed in 
the 1979 regulations as a means of determining when a person has 
substantially failed to comply. However, the existing section has not 
been used and NOAA believes that such determinations should be made by 
MMS. Also, to be consistent with Sec.  930.76(c), this change would 
clarify that it is Interior, not the person, that submits the 
consistency certification and information to the State for OCS plans.
    Rule Change 18: Sec.  930.121(c) Alternatives on appeal. This 
provision was amended in the 2000 rule to address ``confusion as to 
when alternatives may be raised, the consequences of a State agency not 
providing alternatives or [sic] when it issues its objection, and the 
level of specificity that the State agency needs to provide to satisfy 
the element on appeal.'' 65 FR 77151 (December 8, 2000). Implementation 
of this change has prompted NOAA to propose several refinements in the 
language. The word ``new'' would be struck to clarify that all 
information submitted to the Secretary during the appeal may be 
considered in determining whether an alternative is reasonable and 
available. The word ``submitted'' would be substituted for the word 
``described'' to reflect more accurately the manner in which 
information becomes part of the decision record of an appeal.
    The last sentence has been proposed to make clear that the 
Secretary would not substitute the Secretary's judgement for that of 
the State in determining whether an alternative is consistent

[[Page 34859]]

with the enforceable policies of the management program. This is not a 
change in standards or practice, only a clarification. As in the 2000 
rule, both the State and appellant and commenters on the appeal will be 
able to provide the Secretary with information concerning an 
alternative. The addition of this sentence, however, would make clear 
that any alternative, whether submitted to the Secretary by the 
appellant, the State, a third party, or identified by the Secretary 
from previous appeal decisions, will not be considered by the Secretary 
as ``reasonable'' or ``available'' unless the State submits a statement 
to the administrative record of the appeal that the alternative will 
allow the activity to be conducted in a manner consistent with the 
enforceable policies of the management program. To allow otherwise 
would require the Secretary to make a finding that the alternative 
would be consistent with the management program and would effectively 
substitute the Secretary's judgement for that of the State. The 
Secretarial appeals process is a de novo consideration of whether a 
proposed activity is consistent with the objectives of the CZMA or 
otherwise necessary in the interest of national security. It does not 
review whether the proposed activity is consistent with the State's 
enforceable policies. Likewise, the Secretary relies on the State to 
determine whether an alternative is consistent with the enforceable 
policies of the management program.
    Rule Change 19: Sec.  930.125 Notice of appeal and application fee 
to the Secretary. In order to process an appeal within the proposed 
time frames under Sec.  930.130, necessary changes are proposed to 
various sections (Sec. Sec.  125, 127, 128, 129 and 130) to ensure that 
briefs, information, and public and Federal agency comment periods 
accommodate a shorter time period for developing the decision record 
and issuing a decision. These proposed procedures will provide 
sufficient due process to all parties, but will be strictly adhered to, 
otherwise NOAA will not be able to meet the proposed appeal time 
frames.
    Rule Change 20: Sec.  930.127 Briefs and Supporting Materials. The 
proposed changes in Sec.  930.127 are to reflect changes in practice 
necessary to accommodate the proposed time frames for the closure of 
the decision record in Sec.  930.130 and to make the administration of 
the appeals process more efficient and transparent to the public, 
States and potential appellants. These changes would likely mean that 
States, appellants, Federal agencies and the public will have to be 
more diligent in providing thorough and complete information to the 
Secretary in a shorter amount of time. The proposed changes would allow 
each party and the public, in most cases, only one opportunity to 
provide their arguments to the Secretary. The proposed changes reflect 
the fact that the Secretary needs only sufficient time and information 
required to make a rational and well-reasoned determination of each of 
the elements in 15 CFR 930.121 or 930.122.
    The proposed change to Sec.  930.127(d) would move language from 
Sec.  930.130(d) regarding the appellant's burden to support its 
appeal, and makes clear the State's burden of submitting evidence when 
asserting an alternative to the proposed action is reasonable, 
available and consistent with the State management program. This has 
been the Secretary's long-standing practice in accordance with the 
Secretary's decision in Korea Drilling Inc. (1989). This change would 
codify existing practice and consistency appeal precedent.
    Rule Change 21: Sec.  930.128 Public notice, comment period, and 
public hearing. The proposed changes to Sec.  930.128 would accommodate 
the proposed 270-day period to develop the decision record in Sec.  
930.130. Other changes are intended to promote clarity and efficiency, 
obtaining comments from the public and interested Federal agencies, and 
in processing the appeal. In addition, NOAA proposes to make explicit 
the Secretary's practice of giving additional weight to Federal 
agencies' comments when they concern topics within the area(s) of the 
Federal agency's technical expertise.
    Rule Change 22: Sec.  930.129 Dismissal, remand, stay, and 
procedural override. The proposed additions to 930.129 would 
accommodate the proposed 270-day period to develop the decision record 
in Sec.  930.130.
    Rule Change 23: Sec.  930.130 Closure of the decision record and 
issuance of decision. This proposed change would provide 270 days as a 
definitive date by which the Secretary shall close the decision record 
in appeals filed from State objections under 15 CFR part 930, subparts 
D, E and F. Three exceptions to the 270-day period are proposed to 
allow the parties to mutually agree to stay the 270-day period and to 
ensure that the Secretary has relevant NEPA and ESA documents, if the 
Secretary determines that such information is needed to decide the 
appeal. These exceptions would not mean that the Secretary would create 
NEPA or ESA documents for the appeal. The stay of the 270-day decision 
record period would apply only when the NEPA and/or ESA documents are 
required to issue for the Federal agency authorization or funding 
subject to the appeal. If the parties to an appeal wanted to provide 
comments on the NEPA and/or ESA document to the Secretary as part of 
the decision record for an appeal, then the parties could avail 
themselves of proposed section 930.130(a)(2)(i) and mutually agree to 
stay the closing of the decision record.
    Other changes are proposed to more accurately track the existing 
statutory language.

V. Comments Received by NOAA on the ANPR

    NOAA issued an ANPR on July 2, 2002, primarily to address issues 
raised by the Energy Report related to the scope of information needed 
by the States and the Secretary in their respective reviews of OCS oil 
and gas activities. In the ANPR NOAA sought public comment on the 
following six questions:
    1. Whether NOAA needs to further describe the scope and nature of 
information necessary for a State CMP and the Secretary to complete 
their CZMA reviews and the best way of informing Federal agencies and 
the industry of the information requirements.
    2. Whether a definitive date by which the Secretary must issue a 
decision in a consistency appeal under CZMA sections 307(c)(3)(A), (B) 
and 307(d) can be established taking into consideration the standards 
of the Administrative Procedures Act and which, if any, Federal 
environmental reviews should be included in the administrative record 
to meet those standards.
    3. Whether there is a more effective way to coordinate the 
completion of Federal environmental review documents, the information 
needs of the States, MMS and the Secretary within the various statutory 
time frames of the CZMA and OCSLA.
    4. Whether a regulatory provision for a ``general negative 
determination,'' similar to the existing regulation for ``general 
consistency determinations,'' 15 CFR 930.36(c), for repetitive Federal 
agency activities that a Federal agency determines will not have 
reasonably foreseeable coastal effects individually or cumulatively, 
would improve the efficiency of the Federal consistency process.
    5. Whether guidance or regulatory action is needed to assist 
Federal agencies and State CMPs in determining when activities 
undertaken far offshore from State waters have reasonably foreseeable 
coastal effects and whether the ``listing'' and ``geographic location''

[[Page 34860]]

descriptions in 15 CFR 930.53 should be modified to provide additional 
clarity and predictability to the applicability of State CZMA Federal 
Consistency review for activities located far offshore.
    6. Whether multiple federal approvals needed for an OCS EP or DPP 
should be or can be consolidated into a single consistency review. For 
instance, in addition to the permits described in detail in EP's and 
DPP's, whether other associated approvals, air and water permits not 
``described in detail'' in an EP or DPP, can or should be consolidated 
in a single State consistency review of the EP or DPP.
    NOAA received comments from States, environmental groups, industry, 
the public, members of Congress, and Federal agencies. This proposed 
rule is based on NOAA's evaluation of the ANPR issues, comments 
submitted in response to the ANPR, and some technical and clarifying 
changes that should be made to the regulations. Below are NOAA's 
response to comments on the ANPR.
    General Comments. All commenters except two Federal agencies and 
the oil and gas industry representatives urged NOAA to take no action 
because the recent 2000 rulemaking was comprehensive and further 
rulemaking is unwarranted as no problems have emerged with the existing 
regulations. The majority of the commenters urged additional 
stakeholder meetings first, and noted that Congress has sought to 
broaden, not narrow, the scope of CZMA review. They also stated that 
the consistency process has worked well for many years, and that any 
controversy was not the result of the CZMA process, but the proposed 
projects and their effects on coastal uses and resources were 
themselves controversial. Commenters also suggested that any lack of 
effectiveness in CZMA-OCSLA interactions is the result of a project 
proponent's lack of early coordination, familiarity and experience with 
the CZMA. Further, these commenters urged NOAA to commit additional 
resources to its Federal Consistency education and outreach efforts. 
Many of these commenters also felt that changes to address many of the 
ANPR questions could jeopardize the CZMA effects test and public 
review. A few of these commenters, while generally opposing any 
changes, did offer some rulemaking suggestions on the six ANPR 
questions.
    Federal agency and industry comments urged NOAA to make many 
changes to the regulations to refine and improve the partnership 
between Federal and State agencies. These commenters believe that 
NOAA's 2000 rule was overly broad and inconsistent with the CZMA's 
objective to consider the national interest. Further, the two Federal 
agencies that commented believe that States can use the CZMA for the 
cancellation of energy projects, even after a Federal agency has 
approved the project. NOAA's proposed changes address Federal agency 
and industry concerns.
    NOAA Response to General Comments. As stated in the ANPR, NOAA is 
not seeking to alter the balance of State and Federal interests 
provided for in the CZMA and the 2000 rule. Neither the Energy Report 
nor the ANPR suggest changing the States' or public's rights under the 
CZMA or 2000 rule. NOAA does believe, however, that there are some 
improvements that can be made to the Federal Consistency regulations.
    NOAA agrees that the Federal Consistency process is not primarily a 
source of conflict, but that the projects reviewed through the CZMA 
process are often controversial. Most projects are approved by the 
coastal States and there is little litigation.
    Early coordination was stressed in NOAA's 2000 revision to the 
regulations and in recent Federal Consistency Workshops conducted by 
NOAA. NOAA hopes to continue its education and outreach efforts, as 
budget and resources allow. Through workshops and web based information 
NOAA intends help stakeholders avoid problems arising from inadequate 
knowledge of the consistency requirements, limited experience with 
consistency, or insufficient State-federal coordination.
    NOAA agrees that some improvements can be made to the regulations, 
but does not believe that NOAA's regulations are overly broad. The 2000 
rulemaking reflects CZMA directives and Congressional intent and was 
finalized after four years of coordination and collaboration with all 
stakeholders. It may be that some of the issues raised in the comments 
are not really problems with NOAA's regulations, but result from 
requirements and policy set forth by Congress in the statute. For 
example, NOAA does not have the authority to exempt federal actions 
from CZMA review and States have the authority to object to the 
issuance of federal licenses or permits to be issued by Federal 
agencies.
    The figures discussed above and those provided by some of the State 
commenters demonstrate that offshore oil and gas exploration and 
development not only continues to occur, but flourishes. Coastal States 
continue to ensure that both the CZMA's energy development and resource 
protection objectives are met. There has, of course, been negotiation 
between coastal States, MMS and industry, and there have been some 
issues. NOAA is attempting to address some of those issues through this 
rulemaking.
    NOAA appreciates the concern raised in the example provided by 
industry where a State required changes to oil and gas project to be 
located on an ice-platform. It may be that some of the changes proposed 
by NOAA will address those concerns or that better coordination is 
needed between the State, industry and MMS. However, the State's use of 
consistency to ensure that the ice-platform met State enforceable 
policies is in fact how a State is authorized by Congress to use 
Federal Consistency. Through the CZMA, Congress gave the States the 
ability to review federal actions, independent of the Federal agencies' 
reviews. It is important to note the statistics referred to above and 
acknowledge that States concur with most projects reviewed, including 
oil and gas projects.

ANPR Questions

Information Needs

    Comment 1. Existing provisions in the CZMA regulations address 
information needs for most projects. Describing specific documents in 
the regulations that a State may need would be ineffective and 
cumbersome because information needs change from project-to-project. 
The type of information needs of a State can vary from project-to-
project depending on how detailed the EP or DPP is and the complexity 
of a project. One of the fundamental attributes of the CZMA is that it 
allows each State to develop its own coastal management program in 
light of the individual characteristics and priorities of the States. 
Thus, the development and imposition of detailed nationwide information 
requirements appears to be incompatible with the statutory framework of 
the CZMA.
    Most of the OCSLA information requirements ask for fairly specific 
and physical descriptions, while the CZMA requires an analysis of the 
proposed project's consistency with the enforceable policies of a 
State's CMP. Where there is a problem, the proper remedy is the 
development of guidance or memoranda of understanding coordinating 
information requirements between the State and Federal agencies. There 
have been few instances where the lack of availability of an EIS or 
other NEPA document led to an objection based on lack of information. 
If

[[Page 34861]]

information problems (such as lack of NEPA documents) do occur, they 
can be resolved using the procedures available under 15 CFR 930.60, 
adopted when the Federal Consistency regulations were updated in 1990, 
which clarified when the consistency time clock may begin. If OCRM does 
revise the information requirements aspect of the regulations, 
California stated it would not oppose language analogous to that of 
Sec.  930.37 being placed in subparts D and E of the regulations.
    NOAA Response to Comment 1. NOAA's regulations at 15 CFR 930.58 and 
930.76, and MMS' regulations already provide ``national standards'' for 
information needs for OCS oil and gas plans. NOAA's regulations also 
provide the mechanism for addressing individual State information 
needs, both through each State's enforceable policies which are 
approved by NOAA and the ``necessary data and information'' 
specifically identified in a State's federally approved management 
program, pursuant to 15 CFR 930.58(a)(2). Section 930.76(b) and 
includes the information requirements of Sec.  930.58.
    These information requirements provide adequate guidance for most 
projects. Issues have been raised regarding OCS oil and gas projects 
and whether MMS and NOAA regulations provide enough detail about the 
information needed or whether additional information should be 
described in the regulations. In addressing these issues, NOAA 
recognizes that information required for MMS' purposes may not be 
sufficient for State CZMA purposes. Thus, NOAA is not proposing to 
eliminate 15 CFR 930.58(a)(2), but, rather encourages States to make 
better use of the section so that State information needs will be known 
before CZMA review begins and the applicant and Federal agency will be 
able to plan for the State information needs when developing the 
project. NOAA has proposed various improvements to increase clarity and 
efficiency to the Federal Consistency regulations concerning 
information needs.
    NOAA agrees that States and Federal agencies should have 
flexibility to coordinate NEPA information issues.
    Comment 2. MMS' comprehensive Notice to Lessees for the Gulf of 
Mexico addresses many of the same issues as NOAA's proposed rule-making 
and can be used as a model for those States and regions outside the 
Gulf region, precluding the need for NOAA to further revise the 
regulations on these issues.
    NOAA Response to Comment 2. Neither the current nor the proposed 
regulations would prohibit State-Federal memoranda of understanding on 
information needs, such as the recent effort by MMS and the Gulf 
States. NOAA will continue to encourage such agreements.
    Comment 3. For Virginia's Chesapeake Bay Preservation Act Program, 
the State would like detailed maps showing (1) the layout of proposed 
on shore facilities and other elements of the project (i.e., 
transmission lines, reservoirs, borrow areas, waste disposal locations, 
etc.); and (2) delineation of Chesapeake Bay Preservation Areas on the 
properties under study.
    NOAA Response to Comment 3. The State could amend its management 
program to describe the information as being ``necessary data and 
information,'' pursuant to 15 CFR 930.58(a)(2) and (c), and thus 
required of the applicant. If States include detailed information 
requirements in their management programs pursuant to Sec.  
930.58(a)(2), then problems associated with unpredictable State 
requests for additional information will dissipate.
    Comment 4. States are allowed to request additional data and 
information during the CZMA process even though they may have already 
received this information, through MMS, in the documents prepared and 
submitted to the federal permitting authority by a company. Since MMS 
has very thorough environmental review regulations, information 
generated for this process should be honored by the States and not 
requested anew. States should work with the federal permitting agency 
and MMS to identify what information is necessary at the beginning of 
the OCSLA and CZMA processes.
    NOAA Response to Comment 4. All parties should identify information 
needs as early as possible. This should occur before CZMA review 
begins. There should not be a need to develop information in addition 
to that required by MMS regulations and 15 CFR 930.58 and 930.76(b) 
once the CZMA review begins, except in limited, unforeseen 
circumstances and/or where issues regarding the substantive adequacy or 
completeness of the information submitted have arisen. Once the CZMA 
review begins, coastal States need to allow sufficient time for 
industry or MMS to respond to any requests for additional information. 
Thus, NOAA proposes to clarify information needs and, for OCS plans, 
proposes a cut off date at the three month period after which no 
additional information can be requested by a State.
    Comment 5. A better description of the scope and nature of 
information will be beneficial. Preparation of a list of the specific 
information that is required to complete the CZMA process for energy 
projects is encouraged. The applicants should have access to these 
lists of informational needs when they are preparing the necessary 
applications. This approach would assure that all the players 
understand the type and extent of the information that must be 
submitted prior to the submission of any application. The information 
requirements should be keyed to the approved coastal management plan 
and enforceable policies of the plan. By ensuring that the information 
requests are firmly grounded in the approved plan, NOAA can encourage 
States to keep their plans current.
    NOAA Response to Comment 5. NOAA agrees that one reason for 
information uncertainty is that some States do not list information 
needs pursuant to 15 CFR 930.58(a)(2). Another reason for uncertainty 
is that many States have not kept their management programs up to date 
by submitting program changes to NOAA. NOAA has begun to address this 
issue with the States. In addition, NOAA is looking for ways to 
facilitate the process to update State programs, which is primarily a 
resource issue for both the States and NOAA.
    Comment 6. NOAA's regulation at 15 CFR 930.58(a)(1) includes: 
``comprehensive data and information sufficient to support the 
applicant's consistency certification.'' This language is too broad and 
has been used as a basis for continual requests by States for 
additional information. Information required by MMS regulations should 
be adequate for the States to determine consistency. Unreasonable 
requests for more information result in substantial costs and delays, 
create differing requirements among the States and this 
unpredictability has a dampening effect on OCS energy projects.
    NOAA Response to Comment 6. NOAA agrees that the language in Sec.  
930.58(a)(1) which says ``and comprehensive data and information 
sufficient to support the applicant's consistency certification'' is 
not needed since the section describes the information needed and Sec.  
930.58(a)(2) allows the State to describe any necessary information in 
addition to that required by NOAA regulations. The language proposed to 
be removed is ambiguous and could create uncertainty in the 
determination of when the six-month review period starts. NOAA proposes 
to remove this clause from

[[Page 34862]]

Sec.  930.58(a)(1) and replace it with a requirement for ``information, 
if any, relied on by the applicant.'' This phrase describes a set of 
information that can be specifically defined and does not require 
additional evaluation by the applicant. NOAA also proposes 
restructuring the section to provide greater clarity.
    Comment 7. More and more frequently, States are delaying the 
issuance of the consistency concurrence until the NEPA process is 
completed. If a final NEPA document contains no further analysis of 
coastal effects, the information in it is irrelevant to the State's 
concurrence or objection to the consistency determination. Furthermore, 
by withholding a State response to the consistency determination until 
a final NEPA document is published, the State denies the Federal agency 
any benefit the agency might get from the State's comments on the 
consistency determination. We recommend that States not be allowed to 
delay their responses to consistency determinations under the ruse of 
the need for additional information. States should be held to the 
timelines established in 15 CFR part 930. To accomplish this, NOAA 
should clarify the purpose of the consistency analysis, and the 
importance of a timely State response, so that Federal agencies can 
address that response in any final NEPA documentation.
    NOAA Response to Comment 7. States cannot delay their consistency 
responses for any reason, unless the State, Federal agency and, if 
applicable, the applicant agree. If a State does not concur or object 
within the regulatory time frames, the State's concurrence is presumed, 
and the Federal agency may proceed. Requests for additional information 
do not toll or stay the regulatory time periods. For Federal agency 
activities under CZMA section 307(c)(1), the Federal agency makes the 
determination of coastal effects, consistency with the State's 
enforceable policies and whether the Federal agency has sufficient 
information to make such determinations, pursuant to 15 CFR part 930, 
subpart C. The State may request additional information or object, but 
the Federal agency is not obligated to provide information in addition 
to that required by 15 CFR 930.39, or to extend the regulatory review 
period. NOAA agrees that a final NEPA document may not be needed for 
CZMA review, unless there is a substantial change between a draft and 
final document.
    Comment 8. A State agency may effectively extend the required 60-
day consistency determination review period merely by requesting 
additional information from the submitting Federal agency. The State 
agency is under no obligation to make its information request(s) in a 
timely manner.
    NOAA Response to Comment 8. As discussed above and stated in the 
regulations, States cannot unilaterally alter the CZMA review periods. 
In this proposed rule NOAA has further clarified this fact. Section 
930.39 sets out information requirements for consistency 
determinations. It is up to the Federal agency to determine the 
information necessary to support its consistency determination. NOAA's 
Federal Consistency regulations provide general information guidelines, 
but do not, and could not, presume to determine when another Federal 
agency's administrative record is complete and sufficient to support a 
consistency determination. Given the 60-day time period for review of 
Federal agency activities, NOAA proposes to require States to notify 
Federal agencies within 14 days of receipt of a consistency 
determination if the State believes the Federal agency has not 
submitted the information described in Sec.  930.39. Otherwise, a 
Federal agency's submission is presumed complete and by operation of 
the NOAA rule, the 60-day review period began when the State received 
the consistency determination. If the Federal agency believes it has 
provided sufficient information to the State, the Federal agency can 
make a fully consistent finding or consistent to the maximum extent 
practicable finding based on its own administrative record.
    Comment 9. Public participation is not required for State action on 
Federal Consistency determinations (See 16 U.S.C. 1456(c)(1) and (2)). 
There are times when, from the perspective of the Federal agency 
submitting information to a State agency, maintaining information 
security, especially handling of sensitive infrastructure and 
operational information (e.g., anti-terrorist/force protection related 
projects), is a critical concern. Consequently, NOAA should revise its 
rules or provide guidance that clarifies that Federal agencies, not 
State reviewing agencies, should make final determinations concerning 
the release of sensitive infrastructure or operational information that 
is submitted in support of a consistency determination under 16 U.S.C. 
1456(c)(1) or (2).
    NOAA Response to Comment 9. Public participation is required for 
State review of a Federal agency's consistency determination for 
Federal agency activities. CZMA section 306(d)(14), 15 CFR 930.42; see 
65 FR 77126, 77141 (Dec. 8, 2000). NOAA's regulations provide ample 
means for Federal agencies to deal with emergencies and sensitive 
information. See 15 CFR 930.32(a), (b) and (c). Section 930.32(c) on 
classified activities and information was added in 2000 with the 
assistance of the U.S. Navy.
    Comment 10. Section 121(c), regarding the evaluation of 
alternatives on appeal to the Secretary, should be amended to require 
the Secretary to consult with expert Federal agencies regarding the 
availability or reasonableness of any alternatives considered by the 
Secretary.
    NOAA Response to Comment 10. NOAA's regulations provide for Federal 
agency comment into all substantive aspects of a consistency appeal 
under Sec.  930.121(a), (b) and (c) and Federal agency comments are a 
part of the Secretary's decision record. NOAA's regulation at 15 CFR 
930.128(c) specifically provides for Federal agency comment. NOAA 
proposes to amend Sec.  930.128 to clarify its historic practice 
regarding weight given to comments by Federal agencies.
    Comment 11. A State can delay the start of the consistency review 
period for Federal agency activities by claiming the Federal agency's 
submission is incomplete or otherwise insufficient.
    NOAA Response to Comment 11. NOAA proposes to clarify when the 
State's consistency review period begins for Federal agency activities.

Appeal Time Frames

    Comment 12. States do not object to most Federal actions reviewed. 
No deadline for a Secretarial decision should be allowed to undermine 
the already well-established methods for resolving disputes in Sec.  
930.129(c) and (d) of the CZMA regulations. Retaining flexibility 
available under current regulations serves the interests of both 
applicants and regulatory agencies. The only way to further shorten the 
time frame for appeals would be to have a limited time period for 
development of the record, once an appeal is filed. However, this would 
prevent the Secretary from arriving at a decision based on all 
available information. It would also prejudice the States, because the 
State is the respondent to the appeal, which usually contains new 
information supplied by the appellant. If it is decided that a 
definitive date is necessary, it should not preclude consideration of 
federal environmental reviews, that include relevant information, in 
the administrative record.
    NOAA Response to Comment 12. NOAA agrees that the States do not 
object to the great majority of projects reviewed and that of the few 
objections

[[Page 34863]]

there are very few appeals to the Secretary. However, NOAA believes 
that improvements can be made to the regulations governing the 
consistency appeals process and still allow the Secretary to develop an 
adequate record under the Administrative Procedure Act (APA). NOAA's 
proposed change to Sec.  930.130 would provide parties to an appeal 
with the flexibility to agree to stay the appeal process in order to 
negotiate a resolution. Under these parameters, no party would be 
prejudiced. NOAA's proposed change to close the decision record 270 
days after it issues a Notice of Appeal (notice issued within 30 days 
of the filing of an appeal) would provide a workable time frame for OCS 
appeals, so long as NOAA makes the procedural adjustments proposed in 
the other sections of subpart H.
    Comment 13. A definitive time frame within which the Secretary of 
Commerce must issue a decision can be established. At minimum, a known 
action time frame would give the appellant applicant an understanding 
of the term of the process. Additional environmental reviews should not 
be required for a consistency appeal. A copy of the completed EA or EIS 
should be included as part of the administrative record, since many of 
the criteria for a secretarial override involve consideration of 
environmental issues. It should be clear, however, that the Secretary's 
role does not involve review of the legal sufficiency of the EA or EIS. 
Rather, the Secretary should rely on the conclusions of the EA or EIS 
with respect to environmental impacts and mitigations, and should 
accept the document as sufficient unless a court determines otherwise.
    NOAA Response to Comment 13. NOAA has proposed a limited 
consistency appeal review period. See proposed change to Sec.  930.130. 
The Secretary may rely on relevant materials such as NEPA documents. 
NOAA is not suggesting that the Secretary create new NEPA or ESA 
documents. In some appeals the NEPA and ESA documents being prepared to 
support the decision on the Federal authorization will be needed for 
the Secretary's review. The Secretary needs flexibility to adjust the 
closure of the decision record to accommodate the Federal agency 
preparing the necessary document(s).
    Comment 14. It is not the function of the Secretary, in deciding an 
appeal, to adjudicate the merits of the underlying activity. For OCS 
plans, that function is with MMS. If the Secretary overrides a State's 
objection, then MMS may approve the plan and is still required to 
complete environmental clearances required by law. MMS supplies the 
Secretary with all relevant information including NEPA documents. 
Information contained in an EA or a draft EIS, added to the information 
provided by an applicant, is sufficient information for the Secretary 
to evaluate an appeal. An appeal before the Secretary will also include 
all the information that was before the State. We see no reason why the 
appeal process should be delayed in order to obtain additional 
information to add to that administrative record.
    NOAA Response to Comment 14. The Secretary's review is de novo, to 
determine if the project is consistent with the CZMA or in the interest 
of national security. It is not a review of the basis for the State's 
objection or the basis for issuing the Federal agency authorization. 
The Secretary does not substitute the Secretary's judgement for that of 
the authorizing Federal agency regarding the merits of the project, nor 
does the Secretary determine whether a proposed project complies with 
other Federal law. However, because of the multiple national interest 
requirements of the CZMA, the Secretary must evaluate an authorization 
of a project in light of competing CZMA objectives. Varying levels of 
information and detail are required to make these determinations which 
are dictated by many factors such as the nature of the project, scale 
and scope of effects on coastal uses and resources, alterations to the 
proposal, etc. Normally, when the Secretary needs information, he waits 
for the authorizing Federal agency to complete some level of 
environmental review or generate a document. Since these documents are 
required by other federal law, there is no delay to the applicant or 
Federal agency.

Coordinated Federal Documents

    Comment 15. While the CZMA regulations make an admirable attempt to 
coordinate CZMA and OCSLA requirements, problems with coordination of 
federal environmental review documents occur because of unrealistic 
timeframes imposed by OCSLA and its implementing regulations. The most 
troublesome requirement relates to comment deadlines imposed by OCSLA 
and the related regulations for reviews of EP's and DPP's. For EP's, 
the MMS has 30 days and for DPP's 60 days, to approve, disapprove or 
request modifications from the date the plan was deemed complete (30 
CFR 250.204(i)). A change to OCSLA to allow the MMS to have a longer 
comment period before making a decision would alleviate this problem.
    NOAA Response to Comment 15. While a change to the OCSLA timeframes 
might improve the CZMA-OCSLA interaction, that is beyond the scope of 
this rulemaking, which is to determine if there are improvements that 
can be made to NOAA's regulations.
    Comment 16. Coordination is already a cornerstone of the Federal 
Consistency review process, and in practice it is the norm. Consistency 
reviews occur simultaneously with MMS and NEPA reviews to the degree 
practical under relevant statutes. If information problems (such as 
lack of NEPA documents) do occur, they can be resolved using the 
procedures available under 15 CFR 930.60, which clarify when the 
consistency time clock may begin. General consistency concurrences with 
the MMS help minimize the scope and duration of the review of an OCS 
plan for consistency. Coordination is best accomplished through the 
interaction of individual States and Federal agencies and this is what 
the CZMA consistency regulations recognize and encourage. Ambiguity and 
uncertainty can be eliminated by improved education on the part of the 
applicants as to the States' information requirements and consistency 
procedures.
    States can use the analyses in the lease sale EIS to calibrate 
impacts from individual projects. Additionally, MMS has given notice of 
the preparation of a programmatic environmental assessment (EA) for 
exploratory drilling and associated activities in the Eastern Planning 
Area of the Gulf of Mexico. This programmatic EA is intended to 
consider the area wide environmental impacts of exploratory drilling. 
Subsequent site-specific EA's prepared by MMS for an operator's 
Exploration Plan can then be tiered from the programmatic EA and the 
analyses can be focused on specific activities proposed. This is a good 
example of a Federal agency working within the statutory framework of 
CZMA and OCSLA to coordinate the completion of environmental review 
documents with the information needs of the States. Industry recommends 
that this approach be adopted in the Federal Consistency requirements. 
Effective coordination is best achieved by maintaining the freedom and 
flexibility to enter into agreements and discussions among the parties. 
A regulatory mandate for such coordination may have a dampening effect 
and hinder the parties from negotiating resolution to specific cases.
    NOAA Response to Comment 16. NOAA will continue to encourage early 
coordination between Federal agencies

[[Page 34864]]

and States. This early coordination is important for identifying 
information needs and coordinating reviews with completed documents. 
The MMS Gulf of Mexico Region's recent efforts to coordinate reviews 
and information needs may provide a useful model. NOAA also agrees that 
the tiering of NEPA documents is beneficial, especially when the 
documents are ready as the State starts its CZMA review.
    Comment 17. The regulations at section 930.60 contain a consistency 
review ``start'' provision, which begins when the State receives the 
consistency determination and supporting information under section 
930.58. The problem is that unlimited requests for additional 
information can delay the start of this review period indefinitely. The 
regulations should be revised to provide that a State's requests for 
information do not stop the timeline without NOAA approval. The State 
should not be the final arbiter of when the timeline begins.
    NOAA Response to Comment 17. NOAA proposes to clarify that 
consistency starts when the certification and necessary data and 
information described in Sec.  930.58 are received by the State.

General Negative Determination

    Comment 18. We are not aware of repetitive Federal agency 
activities related to the OCS, so it appears that no efficiency would 
be gained by this provision. The flexibility already exists in the 
existing regulations for negative determinations that would enable 
submittals covering multiple activities.
    We support a regulatory provision for a general negative 
determination, similar to the existing regulation for general 
consistency determinations. This would improve the efficiency of the 
Federal Consistency process.
    No objection provided scope of the activity covered and 
geographical area are agreed upon with the State and Federal agency.
    NOAA Response to Comment 18. NOAA's regulations provide for a 
``general consistency determination'' (general CD) which result in one 
State review for multiple occurrences of an activity where the actions 
are repetitive, do not have coastal effects when performed separately, 
but have cumulative effects. The general CD was created in 1979 as an 
administrative efficiency so that Federal agencies may avoid the 
necessity of issuing separate CD's for each repetitive action. There 
may be times when a Federal agency proposes repetitive activities that 
do not have coastal effects, when performed separately or cumulatively. 
In such cases where an individual ND is required under 15 CFR 930.35, 
NOAA believes that the Federal agency should be able to issue a General 
Negative Determination (general ND). The Federal agency would have to 
provide supporting information as is the case for a ND. Since the use 
of a general ND would be an effects determination made by the Federal 
agency, as is the case for a CD, general CD or ND, State agreement to 
use a general ND would not be required. If a State objected, the 
resolution provisions of 15 CFR part 930, subpart C would apply.
    Comment 19. We recommend that the Federal Consistency regulations 
be amended to grant ``Negative Determination'' status to any Federal 
agency activity meeting the definition of a categorical exclusion under 
its own agency's NEPA regulations. Second, we recommend that NOAA 
implement the proposed ``General Negative Determination'' process, but 
reserve it only for those Federal agency activities that are not 
covered by a NEPA Categorical Exclusion but still may be determined by 
the Federal agency to be repetitive and not reasonably likely to have 
either individual or cumulative coastal effects.
    NOAA Response to Comment 19. A general ND would not be an exemption 
for any type of activity, including an ``environmentally non-adverse'' 
activity. Such an exemption, as discussed in the 2000 NOAA rulemaking, 
would not be authorized under the CZMA. Changing the CZMA Federal 
Consistency effects test to equate it with the NEPA test is not 
authorized by the CZMA because the NEPA test is different than the CZMA 
effects test (a categorical exclusion (CE) under NEPA is available when 
there is no potential for effects on the human environment, 40 CFR 
1508.4). Like a CE, a general ND would still require a factual 
determination of coastal effects. (A CE is not an exemption from NEPA 
like an ND or general ND for the purposes of compliance with the CZMA, 
a CE is compliance with NEPA and a determination of no effect. See 65 
FR 77124-77125, 77130-77133 (Dec. 8, 2000)(discussing effects test).
    Comment 20. A general negative determination could obviate the need 
to revisit non-resolved issues and result in considerable savings to 
the Federal agencies and the States. Any such regulation must preserve 
the fact that the Federal agency determines whether there are coastal 
effects. NOAA's overly-broad definitions of some terms may hamper the 
use of a general negative determination.
    NOAA Response to Comment 20. As discussed in NOAA's response to the 
general comments, NOAA disagrees that NOAA's CZMA consistency 
regulations are ``over-broad.'' As noted in the preamble to the 2000 
rule, consistency is based on the ``effects test'' and there are no 
exceptions to this Congressionally mandated principle. NOAA's 
regulations would not hamper the use of a general ND. If a Federal 
agency determines a project will have no coastal effects, and a 
negative determination (ND) is not required, then the Federal agency 
does not have to coordinate with the State at all. 15 CFR 930.35, 
930.33(a)(2). Administrative activities have not been subjected to 
consistency review in the past, probably because they do not propose an 
action with coastal effects. Even in the rare case where a State 
requested consistency review for such an activity, NOAA's regulation 
provides the solution: a negative determination. NOAA has also 
addressed administrative actions in the proposed change to the 
definition of Federal agency activities in Sec.  930.31.

Geographic Considerations

    Comment 21. The CZMA establishes an effects-based evaluation 
process rather than categorizing activities based on geographic 
location or type. It would be particularly difficult to develop 
geographic criteria for activities conducted in the open ocean, where 
effects can occur hundreds of miles from the point of origin. The 
existing regulations adequately address this question. State agencies 
are already required to describe geographic areas within which 
federally permitted activities beyond State waters are subject to 
consistency review. Moreover, as the ANPR points out (at p. 44409), a 
coastal State's ability to review the activities stops where coastal 
effects are not reasonably foreseeable.
    NOAA Response to Comment 21. NOAA has not proposed a regulatory 
change to address State review of OCS plans located far offshore. NOAA 
has determined that conflicts are isolated examples, would most likely 
only occur in the Gulf of Mexico, and can be dealt with on a case-by-
case basis should an issue arise. To create a new regulatory process to 
determine when an OCS plan will have coastal effects on a particular 
State would be difficult to develop and would likely increase 
administrative and fact-finding burdens on industry, the States and 
Federal agencies.
    The determination of coastal effects for federal license or permit 
activities is made by NOAA, in coordination and consultation with the 
States and the

[[Page 34865]]

Federal agency. This is done through the listing and geographical 
location description requirements in NOAA's regulations at 15 CFR 
930.53. States are required to list the federal license or permit 
activities that the State believes will have coastal effects in their 
management programs. The State either develops this list as part of 
management program development or after management program approval 
through NOAA's program change procedures. See 15 CFR 930.53(c), and 15 
CFR part 923, subpart H. When listing Federal license or permit 
activities, States determine whether it is reasonably foreseeable that 
the activity, when conducted inside the coastal zone, will affect 
coastal resources. Once listed in the State's federally approved 
program, all applications for the listed Federal authorization in the 
coastal zone are automatically subject to the consistency process.
    To review activities located outside the coastal zone, NOAA must 
approve or deny a State's request to describe a geographic location 
outside its coastal zone where activities will be presumed to have 
coastal effects. A State must describe with specificity the geographic 
areas from which it is reasonably foreseeable that activities will 
affect coastal uses or resources. Federal agencies and other interested 
parties may comment to NOAA. NOAA's approval is based on whether 
effects on the coastal zone are reasonably foreseeable.
    A State can also review a listed activity located outside the 
coastal zone that is not in a described geographic location as an 
``unlisted'' activity on a case-by-case basis, pursuant to 15 CFR 
930.54. NOAA approval is required in such circumstances and NOAA's 
approval is also based on whether coastal effects are reasonably 
foreseeable.
    The purpose of these listing requirements is to provide predictable 
procedures to determine when a Federal license or permit activity is 
subject to CZMA Federal Consistency review. These procedures provide 
reasonable notice to Federal agencies and applicants for federal 
authorizations as to when and how consistency applies. These 
requirements have been in place since 1979.
    However, the geographic location description requirement for 
Federal license or permit activities has not applied to Federal 
authorizations described in detail in OCS plans because these 
activities are specifically described in the CZMA, 16 U.S.C. 
1456(c)(3)(B), if coastal effects are reasonably foreseeable. In the 
past, most OCS oil and gas plans were for projects located near shore 
and coastal effects were readily identified. Now, however, technology 
allows industry to drill for oil and gas far offshore and the 
connection between a project and effects to a particular coastal State 
is not as clear. In these cases a person could assert that its project 
will not have coastal effects on a particular State. If MMS agreed with 
the person's assertion and factual basis but a coastal State still 
believed the OCS activity will have coastal effects, then the factual 
matter may be resolved through the mediation provisions of the CZMA, 
OCSLA provisions and/or litigation.
    Comment 22. The 1990 amendments to the CZMA did not give carte 
blanche to the States to assert consistency review over all OCS leasing 
activities no matter how far beyond a State's coastal zone they take 
place. Rather, ``effects'' must still be demonstrated. Moreover, this 
legislative history does not apply to the entirely separate provisions 
regarding consistency review for federal permits in section 
307(c)(3)(A), or OCS plans in section 307(c)(B). Congress made it very 
clear that technical amendments to the provision calling for State 
review of private permits were made solely to conform this provision to 
changes made to the Federal agency activity provision, and did not 
expand a State's scope of consistency review. Despite the clear 
legislative history, Commerce's preamble blurs the distinction between 
``Federal agency activities'' and ``Federal activities,'' in general, 
e.g., approval of private permits/licenses, and OCS plans, and 
incorrectly emphasizes the 1990 amendments' expansion of consistency 
review for ``Federal activities.'' (65 FR 77125 middle column, December 
8, 2000). Such statements should be corrected.
    NOAA Response to Comment 22. The 1990 CZMA amendments apply to all 
the consistency requirements. The ``technical amendments'' were to 
conform all of CZMA section 307 with the changes made to CZMA Sec.  
307(c)(1). Moreover, ``direct'' effects were not a limiting factor to 
the pre-1990 CZMA application of Federal Consistency for Federal 
license or permit activities. As noted by the comment, the effects test 
is the controlling factor. Thus, the preamble to the 2000 final rule at 
65 FR 77125, 2d col, needs no correction.
    The effects test, discussed in the Conference Report and other 
legislative history, speak to a cause and effect analysis, or the so-
called series or chain of events analysis. If a Federal agency activity 
will have reasonably foreseeable effects, then consistency applies. 
Thus, as discussed in the preamble to the 2000 rule, the type of 
Federal agency activity is not the determinative factor. Id.
    Comment 23. The term ``foreseeable coastal effects'' is ambiguous, 
recommend that guidance be developed to assist in making this 
determination.
    NOAA Response to Comment 23. NOAA need not further define 
reasonably foreseeable coastal effects. The varied State programs, the 
analysis of effects, and the case-by-case nature of Federal Consistency 
precludes rigid definitions of effects and what is reasonably 
foreseeable. 65 FR 77130, 2d col. (Dec. 8, 2000). Further, as described 
above under the general comments and in detail in the preamble to the 
2000 rule, the definitions of coastal effects and coastal uses and 
resources have not been expanded beyond what was already required by 
the statute, particularly the 1990 amendments to the CZMA.
    Comment 24. NOAA should monitor the States' interpretations of the 
``effects test,'' and the implementation of the ``listing and 
geographic location'' regulations found at 930.53, to ensure that 
States assert a right of consistency review in a reasonable manner. 
This is particularly applicable for projects at increasing distance 
from a State's coastal zone.
    NOAA Response to Comment 24. NOAA monitor's the States' use of 
Federal Consistency through (1) day-to-day interactions with States, 
Federal agencies, industry and others; (2) periodic evaluations of the 
States' programs, pursuant to CZMA Sec.  312; and (3) the Secretary of 
Commerce's review of consistency appeals.
    Comment 25. NOAA should revise the definition of ``Coastal Use or 
Resource'' at Sec.  930.11. By adding terms such as ``scenic and 
aesthetic enjoyment'' and ``air'', this definition goes far beyond the 
statutory definition of coastal use or resource, and inappropriately 
extends the ``reach of reasonably foreseeable effects.''
    NOAA Response to Comment 25. NOAA need not revise the definition of 
``coastal use or resource'' at Sec.  930.11. The definition in the 2000 
rule did not create new thresholds, but is based on the effects test as 
described in the statute and the Conference Report to the CZMA 1990 
amendments, as discussed in the preamble to the 2000 rule.
    Comment 26. Commerce regulations should delete the provision that 
an action with minimal or no environmental effects may affect coastal 
use. Requiring consistency review without regard to significance of 
environmental impact is not good public policy.

[[Page 34866]]

    NOAA Response to Comment 26. As discussed throughout this proposed 
rule and the preamble to the 2000 rule, the CZMA applies to federal 
actions that have reasonably foreseeable coastal effects. The CZMA does 
not provide a ``significance'' threshold for such effects, and in fact 
the 1990 CZMA amendments removed thresholds by removing ``direct'' 
effects from the statute. Thus, NOAA has no authority to exempt an 
activity from consistency review. Likewise, regarding the 
``significance'' of a coastal effect, the CZMA prohibits such a 
distinction. See 65 FR 77125, 2d col., 77129-77130, 77135-77136 (Dec. 
8, 2000). The policy purposes of the CZMA are best fulfilled by the 
required analysis of the relationship between coastal effects and the 
State's enforceable policies.
    Comment 27. We strongly object to the development of guidance or 
regulations that would extend State review to any Federal maritime 
activities that occur well beyond a State's lawful jurisdiction.
    NOAA Response to Comment 27. NOAA is not extending in any way State 
review to activities that do not have coastal effects. Federal 
Consistency applies to a Federal agency activity, regardless of 
location, if coastal effects are reasonably foreseeable. NOAA's 
existing regulations provide geographic location considerations for the 
application of the effects test.

Consolidated Permit Reviews

    Comment 28. Existing regulations already encourage, and many States 
already implement, to the extent practical, substantial interagency 
coordination and multiple-permit consolidated reviews. The requirements 
of the CZMA are independent of other Federal requirements, and 
mandatory consolidation would be inconsistent with the CZMA. In 
addition, industry often will not invest resources into the level of 
detailed design required for some permits, such as air permits, until 
they have secured overall discretionary approvals first.
    Comment 29. Acceptable if sufficient information were available to 
inform of all the permits.
    Comment 30. Multiple Federal authorizations should be consolidated 
into a single review process in order to reduce procedural delays.
    Comment 31. A single consistency certification for an OCS EP or DPP 
should cover associated approvals such as air and water permits 
necessary to the EP or DPP. Ideally, MMS should issue a directive 
making it clear that air and water permits are required to be described 
in detail in the OCS plan, and are therefore covered under one 
consistency certification. Likewise, Federal Consistency regulations 
should be revised to clarify that the States must provide consistency 
review and, if applicable, Commerce should issue a decision on an 
override appeal of the OCS plan and OCS-related activities at the same 
time.
    Comment 32. Such consolidation may prove impractical for a number 
of reasons. When a DPP is submitted to a State, the CZMA time clock 
starts. In order to consolidate reviews of all permits, the lessee 
would have had to submit all its applications to the appropriate 
agencies and certifications to the States at the same time. There would 
be a problem if not all applications were ready to go or if there was a 
problem with just one. It would not be appropriate to withhold 
consistency on all permits or the DPP while a State's objection for one 
permit was appealed to the Secretary.
    NOAA Response to Comments 28-32. NOAA agrees that consolidation may 
not be practicable or desirable in some cases. One way to address 
consolidating as many permits as is practicable is to ensure that the 
permits ``described in detail'' in EP's and DPP's include air and water 
permits and other applicable federal authorizations, appropriate for 
inclusion in the EP's or DPP's as described in detail.
    NOAA notes that the existing regulations allow Federal agencies to 
issue permits described in detail in an EP or DPP determined by the 
State agency to be consistent, even though the State may have objected 
to other permits in an OCS plan. See 15 CFR 930.81(b)(2).
    Comment 33. The definition of ``Federal license or permit'' is too 
broad and the use of the term ``certification'' may encompass 
ministerial paperwork that does not grant any authorization to anyone 
to do something that otherwise would be impermissible. Also, the 
definition exposes other OCS approvals to the consistency process and 
includes OCS lease suspensions.
    NOAA Response to Comment 33. The definition of Federal license or 
permit in Sec.  930.51(a) does not expand the definition based on the 
1990 CZMA amendments. The term ``required'' in the definition is self-
explanatory: a Federal authorization is subject to consistency only if 
Federal law requires the applicant to obtain that Federal authorization 
in order to conduct the activity. As for OCS oil and gas approvals, all 
Federal authorizations described in detail in an EP or DPP are covered 
under the States' review of the plans under 15 CFR part 930, subpart E. 
Subpart E only applies to Federal authorizations described in detail in 
the OCS EP or DPP.
    If an offshore operator is also required by Federal law to obtain a 
Federal authorization that is not described in detail in an EP or DPP, 
and the activity covered by the authorization will have coastal 
effects, then that Federal authorization may also be subject to State 
consistency review under 15 CFR part 930, subpart D, if the State has 
either listed the Federal authorization in its federally approved 
management program, or NOAA has approved the State's review on a case-
by-case basis as an ``unlisted activity'' under 15 CFR 930.54. In both 
cases, the State would have to show, and NOAA would have to find, that 
the activity to be allowed under the Federal authorization would have 
reasonably foreseeable coastal effects. If the authorization is a 
``purely ministerial paperwork,'' then it is extremely unlikely NOAA 
would approve the State's proposed listing of the Federal authorization 
or request to review as an unlisted activity because coastal effects 
would not be reasonably foreseeable and the ministerial action would be 
incidental or related to an action receiving Federal Consistency 
review.
    However, as provided in the proposed change to Sec.  930.51(a) and 
discussed in the accompanying explanation, NOAA proposes to remove the 
various descriptions of Federal license or permit types and have the 
phrase ``any required authorization'' become a catch-all for a Federal 
license or permit for an activity that would have a coastal effect. 
Further, NOAA notes that there are ministerial certifications which do 
not have coastal effects or are incidental/related to a Federal license 
or permit activity that was already reviewed by a State, and therefore 
would not be reviewed as a ``Federal license or permit.''
    The Energy Report directs Commerce and Interior to re-examine CZMA 
and OCSLA requirements. While the OCSLA is under the purview of 
Interior and changes to the OCSLA or Interior's regulations are best 
left to Interior, Interior could help improve the efficiency and 
effectiveness of the OCSLA programs by including more Federal 
authorizations as ``described in detail'' in OCS plans.
    In the preamble to the 2000 rule, NOAA posited that lease 
suspensions granted by Interior are Federal license or permit 
activities. Lease suspensions are not listed in any State's management 
program and NOAA has never approved a request to review a lease 
suspension as an unlisted activity (there was only

[[Page 34867]]

one such request made which was withdrawn). Activities covered under a 
lease suspension could either have been already covered under the 
State's review of the lease sale, EP or DPP. Thus, while NOAA could not 
exempt lease suspensions from potential consistency review, NOAA does 
not currently anticipate approving any State's request to either list 
lease suspensions or to review lease suspensions on a case-by-case 
basis as an unlisted activity, except in some rare, limited 
circumstance.
    Further, NOAA's view on lease suspensions as federal license or 
permit activities has been superceded by the Ninth Circuit, at least 
for the lease suspensions that were the subject of the California 
litigation. California ex rel. Cal. Coastal Comm'n v. Norton, 150 F. 
Supp.2d 1046 (N.D. Cal. 2001), aff'd, 311 F.3d 1162 (9th Cir. 2002). On 
June 20, 2001, the U.S. District Court for Northern California ordered 
Interior to provide California with a consistency determination 
pursuant to CZMA section 307(c)(1) for the lease suspensions it issued 
for 36 leases located offshore California. The Court also ordered 
Interior to provide, pursuant to NEPA, a reasoned explanation for its 
reliance on a categorical exemption for the lease suspensions.
    On appeal by the United States, the Ninth Circuit affirmed the 
District Court's finding that the lease suspensions, in the case of 
these 36 leases, whether granted or directed by Interior, were Federal 
agency activities under CZMA section 307(c)(1), and not ``Federal 
license or permit activities'' under CZMA section 307(c)(3)(A). The 
Ninth Circuit found that the suspensions allowed the leases to continue 
for lengthy additional terms and, more importantly, these leases had 
not been previously reviewed by California under the CZMA. The Court 
viewed the suspensions as an extension of the leases and thus any 
suspension of the lease was, in the Court's view, a Federal agency 
activity under CZMA section 307(c)(1). The Ninth Circuit further found 
that the lease suspensions at issue would have coastal effects since, 
among other things, the suspensions required lessees to engage in 
certain milestone activities which could affect coastal resources. The 
Ninth Circuit also determined that the effect of the 1990 amendments to 
the CZMA in overturning the decision of the Supreme Court in Secretary 
of the Interior v. California, 464 U.S. 312 (1984), is that lease 
suspensions are not subsidiary to exploration plans and development and 
production plans (and thus are not barred from consistency review by 
CZMA section 307(c)(3)(B)), and that activities with coastal effects 
preceding exploration plans and development and production plans are 
subject to consistency review. In making this finding, the Ninth 
Circuit stated:

    In subjecting lease sales to consistency review, Congress has 
made it clear that the statute [CZMA] does not prohibit consistency 
review of federal agency activities that are not subsidiary to 
exploration and development and production plans. The exploration 
and development and production plan stages are not the only 
opportunities for review afforded to States under the statutory 
scheme.

Referring to the fact-specific inquiry necessary to determine if a 
Federal action has coastal effects and, thus, is subject to Federal 
Consistency review, the Ninth Circuit, quoting from NOAA's preamble to 
its 2000 final rule, agreed ``with the reasoning of the National 
Oceanic and Atmospheric Administration that a lease suspension or set 
of lease suspensions might `affect the uses or resources of the State's 
coastal zone, and thus CZMA bars * * * categorically exempting 
suspensions from consistency [review.]' ''
    It is NOAA's view that the California v. Norton decision is limited 
to the 36 leases in that case and that in all foreseeable instances, 
lease suspensions would not be subject to Federal Consistency review 
since (1) as a general matter, they do not authorize activities with 
coastal effects, and (2) if they did contain activities with coastal 
effects, the activities and coastal effects should be covered in a 
State's review of a lease sale, an EP or a DPP. If a State believes 
that a particular lease suspension should be subject to Federal 
Consistency, the State could notify MMS. MMS could determine that the 
lease suspension is an interim activity that does not propose a new 
action with coastal effects and/or provide the State with a negative 
determination pursuant to 15 CFR 930.35.
    Comment 34. Section 930.85(c) should be amended to ensure that 
Interior first determines that an amended plan meets the requirements 
of the OCSLA, before it is sent to the State agency.
    NOAA Response to Comment 34. NOAA agrees that Interior should 
decide first that an amended OCS plan meets OCSLA requirements before 
sending to the State agency. The same technical change should also be 
made to Sec.  930.82. In this way, Interior ensures completeness with 
the OCSLA prior to sending an amended plan to the State agency, as is 
the case for initial OCS plan review under Sec.  930.76(c).

Other Comments

    Comment 35. Delete Conditional Concurrence Procedures or Narrow the 
Conditions that Can be Imposed. Conditional Concurrences create an 
unclear process, neither a concurrence nor objection, and could delay 
or terminate OCS projects. Conditions may usurp Federal permitting 
authority.
    NOAA Response to Comment 35. The new conditional concurrences 
section, Sec.  930.4, contains adequate standards to ensure State 
conditions are based on specific enforceable policies. If the 
requirements for a conditional concurrence are not met, then it is 
automatically treated as an objection pursuant to 15 CFR 930.4. Thus, 
if an applicant does not agree with a condition and does not amend its 
application to the Federal agency, then it is automatically an 
objection. Likewise, if a Federal agency finds a condition is contrary 
to its statutory mandate and refuses to accept the condition, then it 
is automatically an objection. The benefit of the conditional 
concurrence is that if the requirements are met, and the conditions are 
acceptable to the applicant and the Federal agency, then the Federal 
agency can approve the project. If conditional concurrences were not 
allowed, then the State would simply object. All of this happens within 
the State consistency review time frames established by the CZMA and 
NOAA's regulations. Thus, there is no delay and there is very clear 
direction regarding time frames, the substance of the conditions, and 
whether the State has objected or concurred.
    NOAA, the States and the Federal agencies spent considerable time 
discussing the pros and cons of conditional concurrences as part of the 
2000 rulemaking. NOAA does not anticipate proposed changes to this 
section until such time as a problem arises in implementing the 
section.
    Comment 36. Clarify that the determination of whether a Federal 
agency activity has coastal effects is in the purview of the Federal 
agency conducting the activity. Commerce has insisted that pre-lease 
activities such as the 5-Year OCS lease plan are ``development 
projects'' under section 930.33 and are subject to consistency review.
    NOAA Response to Comment 36. NOAA has not declared that Interior's 
pre-lease activities are ``development projects'' under 15 CFR 930.33. 
All that NOAA has said is that a Federal agency activity is subject to 
consistency if there are coastal effects. This is required by the CZMA. 
See 65 FR 77125, 77129-

[[Page 34868]]

77133 (Dec. 8, 2000). NOAA defers to Interior regarding the 
determination of effects for any specific Interior activity.
    Comment 37. Delete the Interstate Consistency regulations. A 
logical implementation of the new consistency review for activities 
``outside of the coastal zone'' contained in the 1990 amendments does 
not lead to interstate review. These regulations also raise 
constitutional issues as to whether one State's policies can be legally 
enforceable against Federal activities taking place entirely in a 
different State.
    NOAA Response to Comment 37. Interstate consistency review is 
authorized by the CZMA effects test. See 65 FR 77125, 77129-77133, 
77152-77153 (Dec. 8, 2000) (discussion of the effects test and 
application to interstate review).
    Comment 38. Commerce regulations at section 930.121 require that an 
activity must ``significantly or substantially'' further the national 
interest before the Secretary can override an objection based on the 
statutory ``national interest'' criteria. This change can potentially 
be very problematic. While the preamble to the 2000 regulations state 
that ``an example of an activity that significantly or substantially 
furthers the national interest is the siting of energy facilities or 
OCS oil and gas development,'' there is no such statement of intent 
with regard to oil and gas exploration. The preamble should be revised 
to make it clear that exploration meets the new override criteria 
otherwise the term ``significantly or substantially'' should be deleted 
from the regulations.
    NOAA Response to Comment 38. The use of the phrase ``oil and gas 
development'' in the preamble to the 2000 rule when discussing the 
phrase ``significantly or substantially'' in 15 CFR 930.121, was 
intended as an example and not meant to apply only to DPP's. The term 
``development'' was used as a general descriptor for OCS oil and gas 
activities. At this time, NOAA cannot foresee a case where OCS oil and 
gas activities do not further the national interest in a significant or 
substantial manner, inclusive of the exploration, development and 
production phases.
    Comment 39. Section 930.3 imposes a requirement on OCRM to conduct 
a continuing review of approved management programs. This is a critical 
part of the Federal Consistency program and one that should receive 
sufficient resources and funding within OCRM to fully effectuate. OCRM 
should carefully monitor the States' application of their management 
programs to evaluate whether a State is inappropriately singling out a 
particular proposed federal activity in or outside its coastal zone, 
and objecting to such an activity on its face, without any 
demonstration that such activity may impact a State's coastal zone. We 
recommend that Commerce amend section 930.3 as follows: (1) To require 
that OCRM conduct a continuing review of the States' application of 
their enforceable programs on at least a semiannual basis, (2) the goal 
of such review would be, among others, to ensure that the States have 
supporting documentation and justification for an objection to a 
proposed federal activity, and that the States are not using their CZM 
programs to prevent a certain category of activity from taking place in 
or outside their coastal zone, and (3) the definition of ``enforceable 
policy'' in section 930.11 be changed to delete the statement that 
``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.''
    NOAA Response to Comment 39. NOAA conducts a statutorily mandated 
continuing review of State programs under CZMA Sec.  312. As part of 
these section 312 evaluations, NOAA looks closely at the State's 
implementation of Federal Consistency. These reviews occur every three 
years. NOAA also scrutinizes State use of consistency on a case-by-case 
basis when called for and, as a threshold matter, on appeal of a 
State's objection to the Secretary. Conducting a more formalized review 
semi-annually or annually, would require substantial additional 
resources, with little foreseeable benefit.
    NOAA also ensures that State programs continue to adequately 
address the national interest in, among other priority areas, energy 
facility siting. This is accomplished through the section 312 reviews 
and when reviewing proposed changes to a State's federally approved 
management program. For example, NOAA has denied State requests to 
include in their management programs State policies that ban all 
offshore oil and gas activities as inconsistent with the CZMA's 
national interest requirements.
    The definition of enforceable policy in NOAA's regulations is based 
on the statutory definition and on American Petroleum Institute v. 
Knecht, 456 F. Supp. 889 (C.D. Cal. 1978), aff'd, 609 F.2d 1306 (9th 
Cir. 1979). See 65 FR 77130, 2d col., (Dec. 8, 2000) (discussion of 
``enforceable policy'').
    Comment 40. A State can delay the start of the consistency review 
period for Federal agency activities by claiming the Federal agency's 
submission is incomplete or otherwise insufficient.
    NOAA Response to Comment 40. If the Federal agency has provided the 
consistency determination and information required by 15 CFR 930.39, 
then the 60-day State review period begins on the date of the State's 
receipt of the information. The State cannot stay, stop or alter the 
commencement of the 60-day period once it starts, unless the Federal 
agency and State agency agree to an alternative time period. The State 
is not the arbiter of completeness; the Federal agency is. If a 
consistency determination and the information required by Sec.  930.39 
are provided, even though the State may believe it needs clarification 
or additional information, the 60-day period begins when the State 
received the Federal agency's information. The State has no authority 
to delay the start of the 60-day period. If the Federal agency provided 
the information required by Sec.  930.39, then the Federal agency may 
presume State concurrence if the State has not objected (or requested 
an extension as allowed under the regulations) within 60 days from the 
State's receipt of the information. However, NOAA proposes a 
modification to Sec.  930.41(a) that would ensure that States notify 
Federal agencies if the State believes the consistency determination is 
not complete.
    Comment 41. Modify the definition of consistent to the maximum 
extent practicable under Sec.  930.32 to allow the Federal agency to 
determine that full consistency is not practical due, but not limited 
to, such factors as logistical impediments, lack of adequate 
technology, illegality, time and space considerations, conflicts with 
other statutory law, cost effectiveness, availability of equipment, 
etc., etc.
    NOAA Response to Comment 41. The definition of ``consistent to the 
maximum extent practicable'' was not significantly changed in 2000. 
NOAA's definition is long-standing (since 1979) and clearly reflects 
the language and intent of the CZMA. NOAA's language was specifically 
endorsed by Congress in the conference report to the 1990 CZMA 
reauthorization and has been upheld by Courts since then.
    The suggested changes would provide Federal agencies with complete 
discretion as to whether or not they would be consistent with a State's 
enforceable policies. Such a change would violate the statute and 
Congressional intent. The change would also cause untold and 
unwarranted ambiguity in the application of consistency and in legal 
precedent, particularly court decisions. Congress declared:


[[Page 34869]]


    NOAA has interpreted the term ``maximum extent practicable'' in 
a manner which requires strict adherence to the enforceable policies 
of state programs where a federal agency has discretion (15 CFR 
930.32). The Committee supports this long-standing interpretation.

Cong. Rec. H 8073, 8076 September 26, 1990 (emphasis added). A recent 
Federal court decision has addressed NOAA's definition of ``consistent 
to the maximum extent practicable.'' In California Coastal Commission 
v. Dept. of the Navy, 5 F. Supp. 2d. 1106 (S.D. Cal. 1998), the Navy 
argued that it complied to the ``maximum extent practicable'' with 
California's dredging and disposal policies because it was obligated to 
follow a modified Sec.  404 permit issued by the Corps. The court noted 
that the federal permit was ``not existing Federal law'' that would 
excuse compliance with the State policies and consistency requirements 
of the CZMA. Id. at 1111.
    Congress partially waived the Federal Government's supremacy over 
State law when it created the CZMA. As such, the only objective means 
to determine ``consistent to the maximum extent practicable'' is based 
on the legal requirements of Federal agencies and their administrative 
records. Otherwise, a Federal agency would be making arbitrary 
decisions, on an agency by agency basis, based on subjective criteria 
and outside the confines of Federal law applicable to the agency.
    The 2000 rule provided clear guidance as to when a Federal agency 
can proceed over a State's objection: due to an unforeseen circumstance 
or emergency, or when a Federal agency asserts, based on its own 
administrative decision record, it is fully consistent, or because of 
the requirements of other Federal law. NOAA added these provisions in 
2000 at Federal agencies' requests.
    NOAA has provided, and will continue to provide, advice to Federal 
agencies on how to effectively use the consistent to the maximum extent 
practicable standard in connection with their statutes and case-by-case 
decision records.
    Comment 42. The deference to be given a State's determination of 
``substantially different coastal effects'' under 15 CFR Sec.  
930.51(e), for purposes of determining if a renewal or major amendment 
of a federal license or permit is an unlawful transfer of Federal 
authority to the States and could delay OCS permit activities.
    NOAA Response to Comment 42. The determination of substantially 
different coastal effects should be made by input from all the parties. 
While NOAA's language did not transfer Federal authority to the States, 
NOAA agrees the section should be revised to reflect NOAA's original 
intent that the State's view be accorded some weight.

VI. 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 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 actions that affect the land and water 
uses or natural resources of State coastal zones. Congress partially 
waived the Federal government's supremacy over State law when it 
created the CZMA. Section 307 of the CZMA and NOAA's implementing 
regulations effectively balance responsibilities between Federal 
agencies and State agencies whenever Federal agencies propose 
activities or applicants for required federal license or permit propose 
to undertake activities affecting State coastal uses or 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 management programs and 
licensees and permittees 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 
actions 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 Chief Counsel for Regulation for 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 economic impact on a substantial number of small entities. 
This proposed rule will make only minor changes to existing 
regulations. The existing regulations do not have a significant 
economic impact on a substantial number of small entities and, thus, 
these clarifying changes will not result in any additional economic 
impact on affected entities. To the extent the proposed rule impacts 
small entities, it is to diminish their regulatory burden and 
obligations. The proposed rule revises provisions of the Federal 
Consistency regulations to improve Federal-State coordination of 
actions affecting the coastal zone, and does not impose any new 
requirements on States, federal agencies, businesses, or the public.
    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 individual 
land owners proposing certain activities affecting the coastal zone 
that require federal authorizations. State and Federal agencies and 
individual 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. The RFA defines a 
small jurisdiction as any government of a district with a population of 
less than 50,000.
    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 34 
coastal States with approved coastal management programs. 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. For example, in the State of North Carolina, for the period 
January 1, 1998,

[[Page 34870]]

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.
    In addition, 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 decided by 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.
    Thus, the existing regulations do not, and the proposed rule will 
not, if adopted, have a significant economic impact on a substantial 
number of small entities. Accordingly, an initial Regulatory 
Flexibility Analysis was not prepared.

Paperwork Reduction Act

    This proposed rule contains no additional collection-of-information 
requirement subject to review and approval by OMB under the Paperwork 
Reduction Act (PRA).

National Environmental Policy Act

    NOAA has concluded that this proposed regulatory action does not 
have the potential to pose significant impacts on the quality of the 
human environment. Further, NOAA has concluded that this proposed rule, 
if adopted, would not result in any changes to the human environment. 
As defined in sections 5.05 and 6.03c3(i) of NAO 216-6, this proposed 
action is of limited scope, a technical and procedural nature and any 
environmental effects are too speculative or conjectural to lend 
themselves to meaningful analysis. Thus, this proposed rule, if 
adopted, is categorically excluded from further review pursuant to 
NEPA.

List of Subjects in 15 CFR Part 930

    Administrative practice and procedure, Coastal zone, Reporting and 
record keeping requirements.

    Dated: June 5, 2003.
Alan Neuschatz,
Acting Assistant Administrator for Ocean Services and Coastal Zone 
Management.

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

PART 930--FEDERAL CONSISTENCY WITH APPROVED COASTAL MANAGEMENT 
PROGRAMS

    1. The authority citation continues to read as follows:

    Authority: 16 U.S.C. 1451 et seq.

    2. Section 930.1 is proposed to be amended by revising paragraph 
(b) to read as follows:


Sec.  930.1  Overall Objectives.

* * * * *
    (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 (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.);
* * * * *
    3. Section 930.10 is proposed to be amended by amending the table 
as follows:


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

------------------------------------------------------------------------
                            Term                               Section
------------------------------------------------------------------------
 
                                * * * * *
Failure substantially to comply with an OCS plan...........   930.85(c).
 
                                * * * * *
------------------------------------------------------------------------

    4. Section 930.11 is proposed to be amended by revising the first 
sentence of paragraph (g) to read as follows:


Sec.  930.11  Definitions.

* * * * *
    (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 agency activity or federal license or permit activity 
(including all types of activities subject to the federal consistency 
requirement under subparts C, D, E, F and I of this part.) * * *
* * * * *
    5. Section 930.31 is proposed to be amended by revising paragraphs 
(a) and (d) as follows:


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, which includes a range of activities where 
the Federal agency makes a proposal for action which initiates an 
activity or series of activities and if coastal effects are reasonably 
foreseeable, e.g., a Federal agency's proposal to physically alter 
coastal resources, a plan that is used to direct future agency actions, 
a proposed rulemaking that alters uses of the coastal zone. ``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).
* * * * *
    (d) A general permit proposed by a Federal agency is subject to 
this subpart if the general permit does not involve case-by-case or 
individual approval of a license or permit by the Federal agency. When 
proposing a general permit, a Federal agency shall provide a 
consistency determination to the relevant management programs and 
request that the State agency(ies) provide the Federal agency with 
review, and if necessary, conditions that would permit the State agency 
to concur with the Federal agency's consistency determination. State 
concurrence shall remove the need for the State agency to review 
individual uses of the general permit for consistency with the 
enforceable policies of management programs. Federal agencies shall, to 
the maximum extent practicable, incorporate State conditions into the 
general permit. If the State's 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 available in that State unless the 
potential users in those States provide the State agency with a 
consistency certification under subpart D of this part and the State 
agency concurs.
* * * * *

[[Page 34871]]

    6. Section 930.35 is proposed to amended by redesignating paragraph 
(d) as paragraph (e) and by adding a new paragraph (d) as follows:


Sec.  930.35  Negative determinations for proposed activities.

* * * * *
    (d) General Negative Determinations. In cases where Federal 
agencies will be performing a repetitive activity, that the Federal 
agency determines will not have reasonably foreseeable coastal effects, 
whether performed separately or cumulatively, the Federal agency may 
provide a State agency(ies) with a General Negative Determination, 
thereby avoiding the necessity of issuing separate negative 
determinations for each occurrence of the activity. The General 
Negative Determination must adhere to all requirements for negative 
determinations under Sec.  930.35. In addition, the General Negative 
Determination must describe in detail the activity covered by the 
General Negative Determination and the expected number of occurrences 
of the activity over a specified time period. If a Federal agency 
issues a General Negative Determination, it may periodically assess 
whether the General Negative Determination is still applicable.
* * * * *
    7. Section 930.41 is proposed to be amended by revising paragraph 
(a) as follows:


Sec.  930.41  State agency response.

    (a) A State agency shall inform the Federal agency of its 
concurrence with or objection to the Federal agency's consistency 
determination at the earliest practicable time, after providing for 
public participation in the State agency's review of the consistency 
determination. The Federal agency may presume State agency concurrence 
if the State agency's response is not received within 60 days from 
receipt of the Federal agency's consistency determination and 
supporting information required by Sec.  930.39(a). 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 notify the Federal agency in 
writing within 14 days of receiving the determination and supporting 
information that the 60-day review period has not begun, identify 
missing information required by Sec.  930.39(a), and that the 60-day 
review period will begin when the missing information is received by 
the State agency. If the State agency has not notified the Federal 
agency that information required by Sec.  930.39(a) is missing within 
the 14 day notification period, then the 60-day review period shall 
begin on the date the State agency received the consistency 
determination and accompanying information. The State agency's 
determination of whether the information required by Sec.  930.39(a) is 
complete is not a substantive review of the adequacy of the information 
provided. Thus, If a Federal agency has submitted a consistency 
determination and information required by Sec.  930.39(a), then the 
State agency shall not assert that the 60-day review period has not 
begun because the information contained in the items required by Sec.  
930.39(a) are substantively deficient, or for failure to submit 
information that is in addition to that required by Sec.  930.39(a).
* * * * *
    8. Section 930.51 is proposed to be amended by revising paragraph 
(a) and paragraph (e) as follows:


Sec.  930.51  Federal license or permit.

    (a) The term ``federal license or permit'' means any required 
authorization which any Federal agency is empowered to issue to an 
applicant that an applicant is required by law to obtain in order to 
conduct activities affecting any land or water use or natural resource 
of the coastal zone. The term does not include OCS plans, and federal 
license or permit activities described in detail in OCS plans, which 
are subject to subpart E of this part, or leases issued pursuant to 
lease sales conducted by a Federal agency (e.g., outer continental 
shelf (OCS) oil and gas lease sales conducted by the Minerals 
Management Service or oil and gas lease sales conducted by the Bureau 
of Land Management). Lease sales conducted by a Federal agency are 
Federal agency activities under subpart C of this part.
* * * * *
    (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 Federal agency after consulting with the State 
agency, and applicant. The Federal agency shall give considerable 
weight to the opinion of the State agency 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.
* * * * *
    9. Section 930.58 is proposed to be amended by revising paragraph 
(a)(1) and the third sentence of paragraph (a)(2) as follows:


Sec.  930.58  Necessary data and information.

    (a) * * *
    (1) A copy of the application for the Federal license or permit and
    (i) all material provided to the Federal agency in support of the 
application; and
    (ii) To the extent not included in paragraphs (a)(1) or (a)(1)(i) 
of this section, a detailed description of the proposed activity, its 
associated facilities, the coastal effects, and any other information 
relied upon by the applicant to make its certification. Maps, diagrams, 
and technical data shall be submitted when a written description alone 
will not adequately describe the proposal;
    (2) * * * Necessary data and information may include State or local 
government permit applications which are required for the proposed 
activity. * * *
* * * * *
    10. Section 930.60 is proposed to be revised as follows:


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 necessary data and information 
required pursuant to Sec.  930.58.
    (1) If an applicant fails to submit a consistency certification in 
accordance with Sec.  930.57, or fails to submit necessary data and 
information required pursuant to Sec.  930.58, the State agency shall, 
within 30 days of receipt of the incomplete information, notify the 
applicant and the Federal agency of the missing certification or 
information, and that:
    (i) The State agency's review has not yet begun, and that its 
review will commence upon receipt of the missing certification or 
information; or
    (ii) In the case where the applicant has provided a certification, 
but not all necessary data and information required pursuant to Sec.  
930.58, the State agency's review has begun, and that the missing 
information must be received by the State agency during the State's 
review period.
    (2) Within 30 days of receipt of the certification or necessary 
data and information that was deemed missing, pursuant to paragraph 
(a)(1) of this section, the State agency shall notify the applicant and 
Federal agency that the certification and necessary data and

[[Page 34872]]

information required pursuant to Sec.  930.58 is complete, the date the 
information deemed missing was received, and that the State agency's 
consistency review commenced on the date of receipt.
    (3) Once the six-month review period has begun under paragraphs 
(a), (a)(1) or (2) of this section, State agencies shall not stop, 
stay, or otherwise alter the consistency timeclock without the 
applicant's written agreement. State agencies and applicants (and 
persons under subpart E of this part) may mutually agree to stay the 
consistency timeclock. Such an agreement shall be in writing and a copy 
shall be provided to the Federal agency. A Federal agency shall not 
presume State agency concurrence with an activity where such written 
agreement exists or where a State agency's review period, under 
paragraph (a)(1)(i) of this section, has not begun.
    (b) The State agency's determination that a certification and 
necessary data and information under paragraph (a) of this section is 
complete is not a substantive review of the adequacy of the information 
provided. If an applicant has submitted the documents required by Sec.  
930.58, then a State agency's or Federal agency's assertion that the 
information contained in the submitted documents is substantively 
deficient, or a State agency's or Federal agency's request for 
clarification of the information provided, or information or data in 
addition to that required by Sec.  930.58 shall not extend the date of 
commencement of State agency review.
    11. Section 930.63 is proposed to be amended by revising the fourth 
sentence in paragraph (d) as follows:


Sec.  930.63  State agency objection to a consistency certification.

* * * * *
    (d) * * * See Sec.  930.121(c) for further details regarding 
alternatives for appeals under subpart H of this part.
* * * * *
    12. Section 930.76 is proposed to be amended by removing paragraph 
(c), redesignating paragraph (d) as paragraph (c), and revising 
paragraphs (a) and (b) as follows:


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

    (a) Any person submitting any OCS plan to the Secretary of the 
Interior or designee shall submit to the Secretary of the Interior or 
designee (1) a copy of the OCS plan, (2) the consistency certification, 
(3) the necessary data and information required pursuant to Sec.  
930.58, and (4) the information submitted pursuant to the Department of 
the Interior's OCS operating regulations (see 30 CFR 250.203 and 
250.204) and OCS information program regulations (see 30 CFR part 252).
    (b) The Secretary of the Interior or designee shall furnish the 
State agency with a copy of the information submitted under paragraph 
(a) of this section, (excluding proprietary information).
* * * * *
    13. Section 930.77 is proposed to be amended by revising paragraph 
(a) as follows:


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 the information required pursuant to Sec.  930.76(a) 
and (b). If a person has submitted the documents required by Sec.  
930.76(a) and (b), then a State agency's assertion that the information 
contained in the submitted documents is substantively deficient, or a 
State agency's request for clarification of the information provided, 
or information and data in addition to that required by Sec.  930.76 
shall not delay or otherwise change the date on which State agency 
review begins.
    (2) To assess consistency, the State agency shall use the 
information submitted pursuant to Sec.  930.76. If a State agency needs 
information in addition to the information required pursuant to Sec.  
930.76, it shall amend its management program pursuant to Sec.  
930.58(a)(2).
    (3) After the State agency's review begins, if the State agency 
requests additional information, it shall describe in writing to the 
person and to the Secretary of the Interior or its designee the reasons 
why the information provided under Sec.  930.76 is not adequate to 
complete its review, and the nature of the information requested and 
the necessity of having such information to determine consistency with 
the enforceable policies of the management program. The State agency 
shall make its request for additional information no later than three 
months after commencement of the State agency's review period. The 
State agency shall not request additional information after the three-
month notification period described in Sec.  930.78(a).
* * * * *
    14. Section 930.82 is proposed to be revised as follows:


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 
along with a consistency certification and data and information 
necessary to support the amended consistency certification. The data 
and information shall specifically describe modifications made to the 
original OCS plan, and the manner in which such modifications will 
ensure that all of the proposed federal license or permit activities 
described in detail in the amended plan will be conducted in a manner 
consistent with the management program. When satisfied that the person 
has met the requirements of the OCSLA and this subpart, the Secretary 
of the Interior or designee shall furnish the State agency with a copy 
of the amended OCS plan (excluding proprietary information), necessary 
data and information and consistency certification.
    15. Section 930.85 is proposed to be amended by removing paragraph 
(d) and revising paragraph (b) and paragraph (c) as follows:


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

* * * * *
    (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.
    (c) If a person fails substantially to comply with an approved OCS 
plan, as determined by Minerals Management Service, pursuant to the 
Outer Continental Shelf Lands Act and applicable regulations, the 
person shall comply with the approved plan or shall submit an amendment 
to such plan or

[[Page 34873]]

a new plan to Minerals Management Service. When satisfied that the 
person has met the requirements of the OCSLA and this subpart, the 
Secretary of the Interior or designee shall furnish the State agency 
with a copy of the amended OCS plan (excluding proprietary 
information), necessary data and information and consistency 
certification. Sections 930.82 through 930.84 shall apply to further 
State agency review of the consistency certification for the amended or 
new plan.
    16. Section 930.121 is proposed to be amended by revising paragraph 
(c) as follows:


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

* * * * *
    (c) There is no reasonable alternative available which would permit 
the activity to be conducted in a manner consistent with the 
enforceable policies of the management program. The Secretary may 
consider but is not limited to considering previous appeal decisions, 
alternatives described in state objection letters and alternatives and 
other information submitted during the appeal. An alternative shall not 
be considered unless the State submits a statement, in a brief or other 
supporting material, to the Secretary that the alternative would permit 
the activity to be conducted in a manner consistent with the 
enforceable policies of the management program.
    17. Section 930.125 is proposed to be amended by redesignating 
paragraphs (b) through (e) as paragraphs (c) through (f), and by adding 
a new paragraph (b) as follows:


Sec.  930.125  Notice of appeal and application fee to the Secretary.

* * * * *
    (b) The appellant's notice of appeal shall include a statement 
briefly explaining the appellant's argument for each ground for appeal 
of the State agency's objection under Sec.  923.121, as well as any 
procedural/threshold arguments regarding the State's objection. Grounds 
for appeal or issues concerning the State agency's objection not 
identified in the appellant's notice of appeal shall not be considered 
by the Secretary and will not be considered part of the Secretary's 
decision record.
* * * * *
    18. Section 930.127 is proposed to be revised as follows:


Sec.  930.127  Briefs and Supporting Materials.

    (a) Within 30 days of the filing of the Notice of Appeal, the 
appellant shall submit to the Secretary a brief accompanied by all such 
supporting documentation and material as the appellant deems necessary 
for the consideration of the Secretary. Within 30 days of the State's 
receipt of the Appellant's brief and supporting documentation and 
material, the State shall submit to the Secretary a brief and all such 
supporting documentation and material the State deems necessary for the 
consideration of the Secretary.
    (b)(1) Both the appellant and State agency shall send four copies 
of their briefs and supporting materials to the Office of General 
Counsel for Ocean Services (GCOS), NOAA, 1305 East West Highway, Room 
6111 SSMC4, Silver Spring, Maryland 20910, one of which must be in an 
electronic format compatible (to the extent practicable) with the 
website maintained by the Secretary to provide public information 
concerning appeals under the CZMA.
    (2) At the same time that materials are submitted to the Secretary, 
the appellant and State agency shall serve at least one copy of their 
briefs, supporting materials and all requests and communications to the 
Secretary and on each other.
    (3) Each submission to the Secretary shall be accompanied by a 
certification of mailing and/or service on the other party and on GCOS. 
Service may be done by mail or hand delivery. Materials or briefs 
submitted to the Secretary not in compliance with time periods 
specified in this subpart for filing with the Secretary or without 
certification of service on the other party may be disregarded and not 
entered into the Secretary's decision record of the appeal.
    (c)(1) The Secretary has broad authority to implement procedures 
governing the consistency appeal process to ensure efficiency and 
fairness to all parties. The Secretary determines the content of the 
appeal decision record. Briefs and supporting materials submitted by 
the State agency and appellant, public comments and the comments of 
interested Federal agencies usually comprise the decision record of an 
appeal. The Secretary may determine, on the Secretary's own initiative, 
that additional information is necessary to the Secretary's decision, 
including documents prepared by Federal agencies pursuant to the 
National Environmental Policy Act (42 U.S.C. 4321 et seq.) and the 
Endangered Species Act (16 U.S.C. 1531 et seq.), and may request such 
information.
    (2) To promote efficient use of time and resources, the Secretary 
may, upon the Secretary's own initiative, require the appellant and the 
State agency to submit briefs and supporting materials addressing and/
or relevant only to procedural or jurisdictional issues presented in 
the Notice of Appeal or identified by the Secretary. Following a 
decision of the procedural or jurisdictional issues, the Secretary may 
require briefs on substantive issues raised by the appeal if necessary.
    (3) The Secretary may require the appellant and the State agency to 
submit briefs in addition to those described in 930.127(a) and (c)(1) 
as necessary.
    (4) Unless additional briefs are requested by the Secretary under 
paragraphs (1) or (2), the parties shall not submit any briefs or 
materials in addition to those described in paragraph (a) of this 
section, and any unrequested briefs or materials may be disregarded and 
not entered into the Secretary's decision record of the appeal.
    (d) The appellant bears the burden of submitting evidence in 
support of its appeal and the burden of persuasion. The State agency 
bears the burden of submitting evidence in support of any alternatives 
proposed by the State agency or submitted to the Secretary by the State 
agency during the conduct of the appeal.
    (e) The Secretary may extend the time for submission of briefs and 
supporting materials only in the event of exigent or unforeseen 
circumstances.
    (f) 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 sections 930.129(b) and 
(c).
    19. Section 930.128 is proposed to be revised as follows:


Sec.  930.128  Public notice, comment period, and public hearing.

    (a) The Secretary shall provide public notice of the appeal within 
30 days after the receipt of the Notice of Appeal and payment of 
application fees by publishing a Notice in the Federal Register and in 
a publication of general circulation in the immediate area of the 
coastal zone likely to be affected by the proposed activity.
    (b) The Secretary shall provide an opportunity for public comment 
on the appeal of no less than 30 days to run concurrently with the 
opportunity to comment provided to interested Federal agencies. Notice 
of the public comment period shall take the same form as Notice 
required in paragraph (a) of this section and may be provided in the 
same Notice as the Notice of the filing of the appeal.
    (c)(1) Notice of the opportunity for interested Federal agencies to 
comment

[[Page 34874]]

on the appeal shall take the same form as Notice required in paragraph 
(a) of this section and may be provided in the same Notice as the 
Notice of the filing of the appeal. The Secretary shall accord greater 
weight to those Federal agencies whose comments are within the areas of 
their expertise.
    (2) The Secretary may, on the Secretary's own initiative or upon 
written request, for good cause shown, reopen the period for Federal 
agency comments before the closure of the decision record.
    (d) The Secretary may hold a public hearing in response to a 
request or on the Secretary's own initiative. A request for a public 
hearing must be filed with the Secretary within 45 days of the 
publication of the Notice in the Federal Register required in paragraph 
(a). If a hearing is held by the Secretary, it shall be noticed in the 
Federal Register and guided by the procedures described within Sec.  
930.113.
    20. Section 930.129 is proposed to be amended by revising paragraph 
(c) and paragraph (d) as follows:


Sec.  930.129  Dismissal, remand, stay, and procedural override.

* * * * *
    (c) The Secretary may stay the processing of an appeal or extend 
the period for the development of the Secretary's decision record, in 
accordance with Sec.  930.130.
    (d) The Secretary may 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 agency's objection, that was not 
provided to the State agency as part of its consistency review, is 
submitted to the Secretary by the State agency, the appellant, the 
public or a Federal agency. The Secretary shall determine a time period 
for the remand to the State not to exceed 20 days and the time period 
for remand must be completed within the period described in Sec.  
930.130 for the development of the Secretary's decision record. If the 
State agency responds that it still objects to the activity, then the 
Secretary shall continue to process the appeal. If the State agency 
concurs that the activity is consistent with the enforceable policies 
of the State's management program, then the Secretary shall declare the 
appeal moot and notify the Federal agency that the activity may be 
federally approved.
    21. Section 930.130 is proposed to be amended by revising 
paragraphs (a), (b), (c) and (d) as follows:


Sec.  930.130  Closure of the decision record and issuance of decision.

    (a)(1) With the exception of paragraph (2), the Secretary shall 
close the decision record and not consider additional information, 
briefs or comments for an appeal no later than 270 days after the date 
of the Secretary's Notice of Appeal published in the Federal Register 
under Sec.  930.128(a). Upon closure of the decision record, the 
Secretary shall immediately publish in the Federal Register a notice 
indicating when the decision record has been closed.
    (2) The Secretary may stay the closing of the decision record 
beyond the 270-day period described in paragraph (1):
    (i) for a specified period mutually agreed to in writing by the 
appellant and the State agency; or
    (ii) as needed to receive, on an expedited basis, the final (A) 
environmental analyses required under the National Environmental Policy 
Act (42 U.S.C. 4321 et seq.) for the Federal agency's proposed issuance 
of a license or permit or grant of assistance; or (B) Biological 
Opinions issued pursuant to the Endangered Species Act (16 U.S.C. 1531 
et seq.) for the Federal agency's proposed issuance of a license or 
permit or grant of assistance.
    (b) No later than 90 days after publication of a Federal Register 
notice indicating when the decision record for an appeal has been 
closed, 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 a Federal Register notice explaining why a decision 
cannot be issued within the 90-day period.
    (c) The decision of the Secretary shall constitute final agency 
action for the purposes of the Administrative Procedure Act.
    (d) 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 
in the decision record supports this conclusion.
* * * * *
[FR Doc. 03-14663 Filed 6-10-03; 8:45 am]
BILLING CODE 3510-08-P