Rule: Endangered and Threatened Species: Coastal Zone Management Act Federal Consistency Process

Thursday,
January 5, 2006
Part III
Department of
Commerce
National Oceanic and Atmospheric
Administration
15 CFR Part 930

Coastal Zone Management Act Federal
Consistency Regulations; Final Rule
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788 Federal Register / Vol. 71, No. 3 / Thursday, January 5, 2006 / Rules and Regulations
DEPARTMENT OF COMMERCE part 930, subpart D, E, and/or F, in environmentally sound National Energy
effect at the time the procedural or Policy. Vice President Cheney
National Oceanic and Atmospheric threshold issue occurred. submitted the Energy Report to
Administration FOR FURTHER INFORMATION CONTACT: President Bush on May 16, 2001.
David W. Kaiser, Federal Consistency The Energy Report contains numerous
15 CFR Part 930 Coordinator, Office of Ocean and recommendations for a long-term,
Coastal Resource Management (N/ comprehensive energy strategy. The
[Docket No. 030604145–4038–02]
ORM3), NOAA, 1305 East-West Energy Report found that the
RIN 0648–AR16 Highway, 11th Floor, Silver Spring, effectiveness of Commerce and Interior
Maryland 20910. Telephone: 301–713– programs are ‘‘sometimes lost through a
Coastal Zone Management Act Federal lack of clearly defined requirements and
Consistency Regulations 3155, extension 144.
Additional information on federal information needs from Federal and
AGENCY: Office of Ocean and Coastal consistency can be located at OCRM’s State entities, as well as uncertain
Resource Management (OCRM), federal consistency Web page: http:// deadlines during the process.’’ The
National Ocean Service (NOS), National coastalmanagement.noaa.gov/czm/ CZMA and the Outer Continental Shelf
Oceanic and Atmospheric federal_consistency.html. Lands Act (OCSLA), a statute
Administration (NOAA), Department of administered by the Minerals
SUPPLEMENTARY INFORMATION: Management Service (MMS), within the
Commerce (DOC).
I. Background Department of the Interior (Interior), are
ACTION: Final rule.
specifically mentioned in the Energy
For nearly 30 years, the CZMA has Report. The Energy Report
SUMMARY: The National Oceanic and met the needs of coastal States, Great
Atmospheric Administration (NOAA) recommended that Commerce and
Lake States and United States Trust Interior ‘‘re-examine the current federal
revises the federal consistency Territories and Commonwealths
regulations under the Coastal Zone legal and policy regime (statutes,
(collectively referred to as ‘‘coastal regulations, and Executive Orders) to
Management Act of 1972 (CZMA). This States’’ or ‘‘States’’), Federal agencies,
final rule addresses the CZMA-related determine if changes are needed
industry and the public to balance the regarding energy-related activities and
recommendations of the Report of the protection of coastal resources with
National Energy Policy Development the siting of energy facilities in the
coastal development, including energy coastal zone and on the Outer
Group, dated May 2001 (Energy Report) development. The CZMA requires the
as described in NOAA’s June 11, 2003, Continental Shelf (OCS).’’ Energy Report
States to consider the national interest at 5–7. There is no explicit reference to
Notice of Proposed Rulemaking (68 FR as stated in the CZMA objectives and
34851–34874) (proposed rule), and other energy programs in this
give priority consideration to coastal recommendation, but its purpose is
comments submitted to NOAA on the dependant uses and processes for
proposed rule. In addition, this final reinforced by related Energy Report
facilities related to national defense, recommendations which encourage and
rule includes provisions complying energy, fisheries, recreation, ports and
with statutory amendments made in the direct the streamlining of significant
transportation, when adopting and energy actions within the jurisdiction of
Energy Policy Act of 2005 (Pub. L. 109– amending their Coastal Management other Federal agencies, including the
58) (Energy Policy Act) that concerned Programs (CMPs), and when making Federal Energy Regulatory Commission
matters addressed in the proposed rule. coastal management decisions. CZMA (FERC).
This final rule continues to provide the sections 303(2)(D) and 306(d)(8). In July 2002, NOAA published an
balance between State-Federal-private Coastal States have collaborated with Advanced Notice of Proposed
interests embodied in the CZMA, while industry on a variety of energy facilities, Rulemaking, 67 FR 44407–44410 (July 2,
making improvements to the federal including oil and gas pipelines, nuclear 2002) (ANPR), seeking comments on
consistency regulations by clarifying power plants, hydroelectric facilities, whether improvements should be made
some sections and providing greater and alternative energy development. to NOAA’s federal consistency
transparency and predictability to the States have reviewed and approved regulations. In response to public
implementation of federal consistency. thousands of offshore oil and gas comments on the ANPR NOAA issued
This final rule fully maintains the facilities and related onshore support its proposed rule. After review of the
authority and ability of coastal States to facilities. comments received on the proposed
review proposed federal actions that On December 8, 2000, NOAA issued rule and after waiting for the final report
would have a reasonably foreseeable a comprehensive revision to the federal of the U.S. Commission on Ocean Policy
effect on any land or water use or consistency regulations, which reflected (released in Fall 2004), NOAA has
natural resource of a State’s coastal substantial effort over a five year period decided to issue this final rule.
zone, as provided for in the CZMA and and participation by Federal agencies, NOAA emphasizes that the changes to
NOAA’s regulations, as revised in 2000. States, industry, and the public. Given the federal consistency regulations
DATES: Effective date: These rules shall this recent broad-based review, NOAA contained in this final rule fully
become effective on February 6, 2006. did not propose a comprehensive re- maintain the authority granted to States
Applicability date: All appeals to the write of the 2000 final rule; rather, it has to review federal actions, pursuant to
Secretary under 15 CFR part 930, made improvements to address the the CZMA and NOAA’s 2000 rule. This
subpart H, filed on or after February 6, issues raised in the Energy Report, the final rule does not, in any way, alter the
2006, shall be processed in accordance proposed rule and comments submitted scope of the federal consistency ‘‘effects
with the procedures and time frames on the proposed rule. test’’ or the obligation of Federal
adopted in subpart H of this final rule. In February 2001, the Vice President agencies and non-federal applicants for
For appeals to the Secretary under 15 established the National Energy Policy required federal licenses or permits to
CFR part 930, subpart H, any procedural Development Group to bring together comply with the federal consistency
or threshold issues which occurred business, government, local requirement. The issue of whether a
prior to February 6, 2006, shall be communities and citizens to promote a proposed Federal agency activity under
governed by the regulations in 15 CFR dependable, affordable, and CZMA section 307(c)(1)is subject to
Federal Register / Vol. 71, No. 3 / Thursday, January 5, 2006 / Rules and Regulations 789
State consistency review is still guided These deadlines are shorter than NOAA federal actions over the years, States
by the Federal agency’s determination of proposed, but longer than the deadlines have concurred with approximately
reasonably foreseeable coastal effects, in some commenters recommended in 93%–95% of all federal actions
accordance with NOAA’s long-standing comments on the proposed rule. In reviewed.
implementation and as articulated in addition, the Energy Policy Act NOAA’s federal consistency
the 2000 rule. Likewise, the application proscribed the method of developing the regulations were first promulgated in
of State consistency review to federal Secretary’s decision record for appeals 1979. In late 1996, OCRM began a
license or permit activities, OCS plans of energy projects. These provisions process to comprehensively revise the
and Federal financial assistance were also similar to comments made on regulations in consultation with Federal
activities under CZMA sections the proposed rule. The changes to agencies, States, industry, Congress, and
307(c)(3)(A) and (B) and 307(d) remains subpart H in this final rule are necessary other interested parties. NOAA
unchanged, i.e., the application of the to ensure NOAA’s regulations are in published a proposed rule in April 2000
‘‘listing’’ and ‘‘unlisted’’ requirements compliance with the Energy Policy Act and a final rule on December 8, 2000,
in 15 CFR 930.53 and 930.54 remains and are within the scope of the which became effective on January 8,
unchanged. The time periods for the provisions contained in the proposed 2001. Most of the changes in the revised
States’ substantive consistency reviews rule and the public comments received 2000 regulations were dictated by
and decisions remain unchanged (75 on that proposal. Therefore, there was changes in the CZMA or by specific
days for Federal agency activities, six no need to re-propose subpart H for statements in the accompanying
months for federal license or permit additional comment. legislative history. For instance, the
activities and OCS plans, and the time 2000 regulations added language
II. History of the CZMA and NOAA’s
periods established by the States for concerning the scope of the federal
Federal Consistency Regulations
federal assistance activities). States may consistency ‘‘effects test.’’ Prior to the
continue to amend their CMP’s to The CZMA was enacted in 1972 to CZMA 1990 amendments, Federal
describe State specific information encourage States to be proactive in agency activities ‘‘directly affecting’’ the
necessary to start the CZMA review managing natural resources for their coastal zone were subject to federal
period for federal license or permit benefit and the benefit of the Nation. consistency. The 1990 CZMA
activities and OCS plans. States may The CZMA recognizes a national amendments broadened this language
continue to request additional interest in the resources of the coastal by dropping the word ‘‘directly’’ to
information during the 75-day and six- zone and in the importance of balancing include actions with ‘‘effects’’ on any
month review periods and may still the competing uses of those resources. land or water use or natural resource of
object for lack of information. The final The CZMA is a voluntary program for the coastal zone. Other changes to the
rule does not change these and other States. If a State elects to participate it original 1979 regulations improved and
important regulatory provisions. At the must develop and implement a CMP clarified procedures based on long-
same time this final rule improves the pursuant to federal requirements. See standing interpretive practice.
clarity, transparency and predictability CZMA section 306(d); 15 CFR part 923. There are several basic statutory
of the regulations within the discretion State CMPs are comprehensive tenets to federal consistency. These are:
granted to NOAA by the CZMA. management plans that describe the 1. A federal action is subject to federal
Although this final rule does not uses subject to the management consistency if it has reasonably
change the fundamental federal program, the authorities and enforceable foreseeable coastal effects: the ‘‘effects
consistency process, coastal states are policies of the management program, test.’’ CZMA section 307.
strongly encouraged to coordinate and the boundaries of the State’s coastal 2. Federal actions cannot be
participate with applicants for energy zone, the organization of the categorically exempted from federal
projects and responsible Federal management program, and related State consistency—the effects test determines
agencies early in project development. coastal management concerns. The State the application of the CZMA. CZMA
This effort will ensure that the States’ CMPs are developed with the section 307.
ability to require NEPA documentation participation of Federal agencies, 3. There are no geographical
as necessary data and information does industry, other interested groups and boundaries to the application of the
not delay the start of the six-month the public. Thirty-five coastal States are effects test. CZMA section 307.
consistency review period or eligible to participate in the federal 4. Early coordination between Federal
unnecessarily delay a Federal agency’s coastal management program. Thirty- agencies, applicants and States is
decision for a proposed project it finds four of the eligible States have federally encouraged. CZMA section 307.
to be in the public interest. approved CMPs. Illinois is not currently 5. State federal consistency decisions
While this rulemaking was pending participating. must be based on enforceable policies
the House and Senate passed the Energy The CZMA federal consistency that are approved by NOAA as part of
Policy Act of 2005 (H.R. 6 and S. 10), provision is a cornerstone of the CZMA the State’s federally approved CMP.
signed by President Bush on August 8, program and a primary incentive for CZMA section 307.
2005 (Pub. L. 109–58). Some provisions States’ participation. Federal 6. States must provide for public
of the Energy Policy Act directly consistency is a limited waiver of comment on their federal consistency
address matters raised in the proposed federal supremacy and authority. decisions. CZMA sections 307;
rule and comments on the proposed rule Federal agency activities that have 306(d)(14).
related to appeals under subpart H of coastal effects must be consistent to the 7. Federal development projects
these regulations. Specifically, the maximum extent practicable with the within a State’s coastal zone are
Energy Policy Act established new federally approved enforceable policies automatically subject to federal
appeal deadlines: 30 days to publish a of the State’s CMP. In addition, non- consistency. CZMA section 307(c)(2).
notice of appeal, then 160 days to federal applicants for federal 8. The Federal agency determines
develop a decision record, with authorizations and funding must be whether a Federal agency activity has
provisions to stay the 160-day period for fully consistent with the enforceable coastal effects, and, if there are coastal
60 days, and a 60–75 day period to issue policies of State CMPs. While States effects, must provide a consistency
a decision after the record is closed. have negotiated changes to thousands of determination to the affected State(s) no
later than 90 days before final approval 16. Federal consistency does not reasonably foreseeable coastal effects,
unless the Federal agency and the State supersede, modify or repeal existing then MMS must provide a CZMA
agree to a different schedule. CZMA laws applicable to Federal agencies. consistency determination to the
section 307(c)(1). CZMA section 307(e). affected State(s) examining whether the
9. A Federal agency activity must be 17. Federal consistency does not lease sale is ‘‘consistent to the
carried out in a manner consistent to the affect the requirements of the Clean maximum extent practicable’’ with the
maximum extent practicable with the Water Act or the Clean Air Act enforceable policies of the State’s CMP.
enforceable policies of a State’s CMP. established by the Federal Government If the State objects, MMS may still
However, a Federal agency may proceed or the States and such requirements are proceed with the lease sale if MMS’
over a State’s objection if the Federal part of the States’ federally approved administrative record and the OCSLA
agency provides the State a written CMPs. CZMA section 307(f). show that it is fully consistent or
statement showing that its activity is 18. The Secretary shall have 30 days consistent to the maximum extent
consistent to the maximum extent to publish a notice of appeal, then 160 practicable. The ability of a Federal
practicable. CZMA section 307(c)(1), (2). days to develop a decision record, and agency to proceed over a State’s
10. States and Federal agencies may may stay the 160-day period for 60 days, objection to a proposed Federal agency
seek mediation by the Secretary to and has a 60–75 day period to issue a activity existed prior to the 2000 rule,
resolve serious federal consistency decision after the record is closed. was further clarified in the 2000 rule
disputes. CZMA section 307. CZMA section 319. and remains unchanged by this final
11. An activity proposed by a non- These are the statutory parameters of rule.
Federal entity for a required federal federal consistency. Since 1979, The CZMA requires that when a
license or permit (including an OCS oil NOAA’s federal consistency regulations lessee seeks MMS approval for its EP or
and gas plan) is subject to federal have interpreted CZMA requirements DPP, the lessee must certify to the
consistency if the activity will have and provided reliable procedures and affected State(s) that the activities
reasonably foreseeable coastal effects. predictability for the implementation of authorized by the licenses or permits
CZMA section 307(c)(3)(A) and (B). federal consistency. Even though the described in the plans are fully
12. An applicant for a required federal Secretary has discretion in the consistent with the enforceable policies
license or permit activity resulting in establishment of procedures to of the State’s CMP. If the State objects
coastal effects, including OCS plans, implement the CZMA’s statutory to the consistency certification, then
must provide affected States with a provisions, NOAA, in this final rule, as MMS is prohibited from approving the
consistency certification and necessary in the 2000 rule, is not altering its long- license or permits described in detail in
information and data supporting the standing interpretations of the major the EP or DPP. The lessee may appeal
certification. The State must object to or regulatory definitions set forth in the to the Secretary of Commerce to
concur with the certification within six 1979 regulations, endorsed by Congress override the State objection and allow
months or its concurrence is presumed. in the 1990 reauthorization of the MMS to issue its approvals described in
For review of OCS plans States must CZMA, relied on in court decisions and the plan. When deciding an appeal, the
first provide a three-month notice as to as described in the 2000 rule. Consistent Secretary balances the national interest
the status of its review and if the three- with the statute, the 2000 rule and court in energy development, among other
month notice is not provided, then decisions, NOAA has retained these elements, against adverse effects on
concurrence is presumed. CZMA fundamental and well-established coastal resources and coastal uses.
section 307(c)(3)(A) and (B). regulatory interpretations. The The CZMA and NOAA’s regulations
13. An applicant can appeal the improvements contained in this final ensure that the national interest in the
State’s objection to the Secretary of rule change the language of some CZMA objectives are furthered. These
Commerce, who can override the State’s regulatory provisions to provide greater safeguards are discussed below using
objection if the Secretary finds that the clarity, transparency and predictability OCS oil and gas activities as
activity is consistent with CZMA to federal consistency procedures, while illustrations.
objectives or is otherwise necessary in retaining NOAA’s long-standing The ‘‘Effects Test.’’ As discussed
the interest of national security. The interpretations of the CZMA. NOAA’s above, federal consistency review is
Secretary, in making a decision on an regulations have operated well for the triggered only when it is reasonably
appeal, must provide a reasonable Federal and State agencies and permit foreseeable that the federal action will
opportunity for detailed comments from applicants and the changes in this final have coastal effects, referred to as the
the Federal agency involved and from rule will allow them to continue to do ‘‘effects test.’’ Consistency does NOT
the State. CZMA section 307(c)(3)(A). so more efficiently and effectively. apply to every action or authorization of
14. The authorizing Federal agency a Federal agency, or of a non-federal
cannot approve a federal license or III. The Role of the CZMA in OCS and applicant for federal authorizations.
permit for an activity with reasonably Other Energy Development For OCS oil and gas lease sales, MMS
foreseeable coastal effects unless the The CZMA and the OCSLA interact determines whether coastal effects are
State concurs or the Secretary overrides both by explicit cross-reference in the reasonably foreseeable and provides
the State’s objection. CZMA section statutes and through their regulatory affected States with a consistency
307(c)(3)(A) and (B). implementation. Both statutes mandate determination. For example, MMS has
15. State agencies and local State review of OCS oil and gas established the Eastern Planning,
governments applying for Federal funds Exploration Plans (EP’s) and Central Planning and Western Planning
for activities that have reasonably Development and Production Plans Areas for the Gulf of Mexico. MMS may
foreseeable coastal effects must provide (DPP’s). Both statutes and their determine that lease sales in the Eastern
the State with a consistency certification corresponding regulations provide a Planning Area will not have reasonably
and the authorizing Federal agency compatible and interrelated process for foreseeable effects on State coastal uses
cannot issue the funds unless the State States to review EP’s and DPP’s. or resources within the Central Planning
concurs. Applicant agencies can also When MMS offers an OCS lease sale, Area. Therefore, MMS may choose not
appeal State objections to the Secretary. it is a Federal agency activity. If MMS to provide States adjacent to the Central
CZMA section 307(d). determines that the lease sale will have Planning Area with a consistency
determination. MMS could also prohibit all oil and gas activities off its State and applicant or a settlement
determine that a lease sale held far coast because such policies conflict agreement between the Federal
offshore in the Eastern Planning Area with the CZMA requirements to Government and the oil companies
would not have foreseeable coastal consider the national interest in energy involved in the projects. Of the 14
effects on Florida or Alabama coastal development, see CZMA sections decisions (1 DPP and 13 EP’s), there
uses or resources. 303(2)(D) and 306(d)(8), and to balance were 7 decisions to override the State’s
For OCS EP’s and DPP’s the CZMA resource protection with coastal uses of objection and 7 decisions not to
mandates State consistency review. national significance. override the State.
However, as with Federal agency Consistent to the Maximum Extent Since the 1990 amendments to the
activities, a coastal State’s ability to Practicable and Fully Consistent. For CZMA, there have been several OCS oil
review the Plans stops at the point Federal agency activities under CZMA and gas lease sales by MMS and only
where coastal effects are not reasonably section 307(c)(1), such as OCS Lease one State objection. In that one
foreseeable. Whether coastal effects are Sales, a Federal agency may proceed objection OCRM determined that the
reasonably foreseeable is a factual with the activity over a State’s objection State’s objection was not based on
matter to be determined by the State, the if the Federal agency determines its enforceable policies, MMS determined
applicant and MMS on a case-by-case activity is consistent to the maximum that it was consistent to the maximum
basis. extent practicable with the enforceable extent practicable with the State’s CMP,
If a State wanted to ensure that OCS policies of the State’s CMP. This means and the lease sale proceeded. Thus, all
EP’s and DPP’s located in a particular that even if a State objects, MMS may lease sales offered by MMS since the
offshore area would be subject to State proceed with an OCS lease sale when 1990 amendments have proceeded after
CZMA review automatically, a State MMS provides the State with the State federal consistency review. In
could, if NOAA approved, amend its reasons why the OCSLA and MMS’s addition, since 1990, there have been
CMP to specifically describe a administrative record supporting the six State objections to OCS plans. In
geographic location outside the State’s lease sale decisions prohibit MMS from three of those cases, the Secretary did
coastal zone where such plans would be fully complying with the State’s not override the State’s objection. In two
presumed to affect State coastal uses or enforceable policies. MMS could also of the cases the Secretary did override
resources. See 15 CFR 930.53. Or, if a proceed if it determined that its activity the State allowing MMS approval of the
State wanted to review an EP or DPP was fully consistent with the State’s permits described in the plans, and in
where the applicant and/or MMS have enforceable policies. Under NOAA’s one case the State objection was
asserted that coastal effects are not regulations, the consistent to the withdrawn as a result of a settlement
reasonably foreseeable, the State could maximum extent practicable standard agreement between the Federal
request approval from NOAA to review also allows Federal agencies to deviate Government and the oil companies
such plans on a case-by-case basis. See from State enforceable policies and involved in the project.
15 CFR 930.54 (unlisted activities). In CZMA procedures due to unforeseen
both situations, NOAA would approve With respect to FERC jurisdictional
circumstances and emergencies. This
only if the State made a factual matters, there have been two State
final rule does not change the
demonstration that effects on its coastal objections in the past three years to
application of the consistent to the
uses or resources are reasonably applications for certificates of public
maximum extent practicable standard.
foreseeable as a result of activities Appeal to the Secretary of Commerce. convenience and necessity to construct
authorized by a particular EP or DPP. For non-federal applicants for federal and operate natural gas pipelines. In one
Similarly, where the applicant or FERC authorizations, such as OCS EP and DPP of these cases, the Secretary ruled the
has asserted that a proposed project approvals and FERC certificates under project did not meet the requirements
located outside the coastal zone or the Natural Gas Act or licenses under for overriding State objections. In the
outside a geographic location described the Federal Power Act, the applicant other, the Secretary overrode State
in a state’s management program may appeal a State’s objection to the objections and ruled the project could
pursuant to 15 CFR 930.53, will not Secretary of Commerce pursuant to proceed.
have reasonably foreseeable coastal CZMA sections 307(c)(3) and (d). The Presidential Exemption. After any
effects, NOAA would not approve a Secretary overrides the State’s objection appealable final judgement, decree, or
State request to review the project if the Secretary finds that the activity is order of any Federal court, the President
unless the State made a factual consistent with the objectives or may exempt from compliance the
demonstration that the project has purposes of the CZMA or is necessary elements of a Federal agency activity
reasonably foreseeable coastal effects. in the interest of national security. If the that are found by a Federal court to be
This final rule does not change that Secretary overrides the State’s objection, inconsistent with a State’s CMP, if the
process. then the Federal agency may issue its President determines that the activity is
NOAA Approval of State CMPs. authorization. in the paramount interest of the United
NOAA, with substantial input from Since 1978, MMS has approved over States. CZMA § 307(c)(1)(B). This
Federal agencies, local governments, 10,600 EP’s and over 6,000 DPP’s. States exemption was added to the statute in
industry, non-governmental have concurred with nearly all of these 1990 and has not yet been used.
organizations and the public, must plans. In the 30-year history of the Mediation. Mediation has been used
approve State CMPs and their CZMA, there have been only 18 to resolve federal consistency disputes
enforceable policies, including instances where the offshore oil and gas and allowed federal actions to proceed.
subsequent changes to a State’s CMP. industry appealed a State’s federal In the event of a serious disagreement
NOAA’s required approval ensures consistency objection to the Secretary of between a Federal agency and a State,
consideration of Federal agency Commerce. The Secretary issued a either party may request that the
activities and federal license or permit decision in 14 of those cases. The Secretary of Commerce mediate the
activities, including OCS plans. For Secretary did not issue a decision for dispute. NOAA’s regulations also
example, NOAA has denied State the other 4 OCS appeals because the provide for OCRM mediation to resolve
requests to include policies in its appeals were withdrawn due to disputes between States, Federal
federally approved CMP that would settlement negotiations between the agencies, and other parties.
IV. Explanation of Proposed Changes to to take an action or initiate a series of determination to a State or where a State
the Federal Consistency Regulations actions that have reasonably foreseeable has already concurred with a Federal
Rule Change 1: § 930.1(b) and (c) coastal effects, and not to agency agency’s consistency determination for a
Overall Objectives. This change moves deliberations or internal tasks related to proposed action, planning activities
the parenthetical with the description of a proposed agency action. See e.g., related to the agency’s deliberative
‘‘federal action’’ from § 930.11(g) to the sections in NOAA’s 2000 regulations process may occur before or after the
first instance of the term in § 930.1(b). that refer to ‘‘proposed’’ activities: 15 State’s federal consistency review that
Federal action is used throughout the CFR 930.36(a), 930.35, 930.39(a), are incidental to the proposed action. In
regulations to refer, when appropriate, 930.46(a), 930.1(c), 930.11(d). See also these cases the interim or preliminary
discussion in the preamble to the 2000 activity would not be subject to federal
to subparts C, D, E, F and I. The final
final rule: 65 FR 77130, Col. 2–3 consistency review.
rule adds a statement to § 930.1(c) to
(December 8, 2000). Thus, a planning In the OCS oil and gas context,
encourage states to participate in the examples of interim or preliminary
document that explores possible
administrative processes of federal activities which are not Federal agency
projects or priorities for an agency is not
agencies. This would strengthen the activities include the publication of
a Federal agency activity, as there is no
early coordination objectives of the OCS 5-Year programs, as discussed
action proposed. However, a Federal
CZMA and enhance the ability of above; or rulemakings establishing
agency plan or rulemaking proposing a
federal agencies to address the administrative procedures for OCS-
new action is a Federal agency activity
enforceable policies of a state’s related activities that do not affect
subject to the effects test.
management program. Not all ‘‘planning’’ or ‘‘rulemaking’’ coastal uses or resources (e.g.,
Rule Change 2: § 930.10 Definitions activities are subject to federal rulemaking prescribing the completion
Table of Contents—Definition of Failure consistency since such planning or and submission of forms). Consistent
Substantially to Comply with an OCS rulemaking may merely be part of the with the Ninth Circuit’s decision in
Plan. The reference to section 930.86(d) agency’s deliberative process. Likewise, California ex rel. Cal. Coastal Comm’n
is incorrect. There was no 930.86(d). the plan or rulemaking may not propose v. Norton, 150 F. Supp.2d 1046 (N.D.
The reference is now to 930.85(c). There an action with reasonably foreseeable Cal. 2001), aff’d, 311 F.3d 1162 (9th Cir.
is no change from the proposed rule. coastal effects and would therefore not 2002), MMS action to grant or direct
Rule Change 3: § 930.11(g) be subject to federal consistency. If, suspensions of OCS operations or
Definitions—Effect on any coastal use or however, an agency’s administrative production is an interim or preliminary
resource (coastal effects). This change deliberations result in a plan to take an activity and not a Federal agency
moves the parenthetical for ‘‘federal action, or a rulemaking proposing an activity subject to federal consistency
actions’’ to the first instance of federal action or a directive, then that plan or when the lease suspension would not
action in § 930.1(b) and inserts more rulemaking could be subject to federal have reasonably foreseeable coastal
specific language for Federal agency consistency if coastal effects are effects. If the State had previously
activity and federal license or permit reasonably foreseeable. For example, reviewed any reasonably foreseeable
activity. There is no change from the MMS produces a 5-year Leasing coastal effects of a lease suspension
proposed rule. Program ‘‘Plan,’’ pursuant to the during the State’s review of the lease
Rule Change 4: § 930.31(a) Federal OCSLA. MMS has informed NOAA that sale, EP or DPP for federal consistency,
agency activity. This change does not the 5-Year Program Plan is a then the lease suspension would not be
alter the current application of the preliminary activity that does not set the subject of a new consistency review.
definition of Federal agency activity, but forth a proposal for action and thus, In this sense, the lease suspension is an
clarifies that a ‘‘function’’ by a Federal coastal effects cannot be determined at interim or preliminary activity. See
agency refers to a proposal for action. this early stage. Accordingly, MMS’ NOAA’s response to comments 25 and
The examples included are also re- proposal for action would occur when 26 for further discussion on lease
written to emphasize that a proposed MMS conducts a particular OCS oil and suspensions and California v. Norton
action is an essential element of the gas lease sale. and NOAA’s conclusion that in all
definition. In response to commenters’ Once a Federal agency proposes an foreseeable instances, lease suspensions
concerns that Federal agencies may action, it is the proposal for action would not be subject to federal
view this change as a basis to exempt which is the subject of the consistency consistency review since (1) in general,
some activities from the effects test, review. The State only reviews the they do not authorize activities with
NOAA reiterates that this change does proposed action and does not review all coastal effects, and (2) if they did
not affect the application of the effects tasks, ministerial activities, meetings, contain activities with coastal effects,
test. Congress amended the CZMA in discussions, and exchanges of views the activities and coastal effects would
1990 to make it clear that no federal incidental or related to a proposed be covered in a State’s review of a
actions are categorically exempt from action, and does not review other previous lease sale, an EP or a DPP. If
federal consistency and that the aspects of a Federal agency’s a State believes that a particular lease
determination of whether consistency deliberative process. In addition, suspension should be subject to federal
applies is a case-by-case analysis of Federal agency activities do not include consistency, the State should notify
whether a Federal agency activity will interim or preliminary activities MMS. MMS could (1) agree with the
have reasonably foreseeable effects on incidental or related to a proposed State that coastal effects are reasonably
any coastal use or resource. See H.R. action for which a consistency foreseeable and provide the State with
Conf. Rep. No. 964, 101st Cong., 2d determination has been or will be a consistency determination; (2) provide
Sess. 968–975, 971; 136 Cong. Rec. H submitted and which do not make new the State with a negative determination
8076 (Sep. 26, 1990); and 65 FR 77125 commitments for actions with coastal pursuant to 15 CFR 930.35; and/or (3)
(December 8, 2000). The change to this effects. Such interim or preliminary determine that the lease suspension is
section is consistent with Congressional activities are not independent actions an interim activity that does not propose
directives. subject to federal consistency review. a new action with coastal effects.
It has always been NOAA’s view that For example, where a Federal agency In another example of what is subject
federal consistency applies to proposals has not yet submitted a consistency to State consistency review, consider
the situation when the Navy proposes to agency activity. In this final rule, NOAA and requiring an individual who wants
construct a pier. The project involves has removed the option to allow Federal to use the general permit to submit an
compliance with numerous federal agencies to treat their general permits as individual consistency certification to
laws, e.g., National Environmental a federal license or permit activity for the State agency in compliance with 15
Policy Act (NEPA) documents, purposes of complying with CZMA CFR part 930, subpart D. However, all
Endangered Species Act (ESA) section 7 § 307 and 15 CFR part 930. If a general provisions of the license or permit
consultation, a Rivers and Harbors Act permit is proposed by a Federal agency sections would apply, including the
section 10 permit from the Army Corps and coastal effects are reasonably ‘‘listing,’’ ‘‘unlisted,’’ and ‘‘geographic
of Engineers (Corps), contracts with a foreseeable, then the general permit is a location description’’ requirements in
construction company to build the pier, Federal agency activity under CZMA §§ 930.53 and 930.54. Once the State
etc. These various authorizations and § 307(c)(1) and 15 CFR part 930, subpart concurs with the certification, then an
activities related to the Navy’s proposal C. NOAA’s determination that general individual user may undertake the
to build the pier are not separate Federal permits are Federal agency activities activity(ies) authorized by the general
agency activities subject to federal and not federal license or permit permit in accordance with the State’s
consistency. The Federal agency activity activities under CZMA § 307 is for concurrence. If the State objects to the
for purposes of 15 CFR 930.31 is the CZMA purposes only and is based on individual user’s (now an applicant
proposal to build the pier. Under 15 the reasons described below, which are under subpart D) consistency
CFR 930.36(b), the Federal agency specific to the requirements of the certification, then the individual cannot
determines when it has sufficient CZMA. Therefore, this determination undertake the activity(ies) authorized by
information to provide the State with a does not affect the status of general the general permit, unless the
consistency determination. For instance, permits under the Administrative individual user (now the applicant)
in this example of the Navy pier, the Procedure Act or under any other appeals the State’s objection to the
Navy could conclude that under Navy federal statute. For example, while Secretary of Commerce, pursuant to
procedures the pier is not a proposed general permits issued under the Clean subpart H, and the Secretary overrides
action until the proposed activity Water Act are Federal agency activities the State’s objection.
requires analysis under NEPA. The State under these revised regulations, NOAA NOAA reiterates that if a State
reviews only the pier proposal. The recognizes that EPA continues to concurs with a consistency
State uses the information provided by consider those same permits to be determination for a general permit, then
the Navy, pursuant to 15 CFR 930.39(a), licenses or permits for purposes of the the State has no authority under the
to evaluate coastal effects and determine APA and for purposes of State CZMA to review individual uses of the
consistency with the State’s enforceable certification under Clean Water Act general permit under subpart C or D. For
policies. The State may request, or the section 401. example, in the OCS oil and gas context,
Navy may provide, the Corps section 10 There are several reasons why a
if a State has concurred with the
permit application, or the Biological general permit should not be a federal
Environmental Protection Agency’s
Opinion under the ESA or the NEPA license or permit activity under CZMA
consistency determination for an OCS
document, in addition to the Navy’s § 307. Under NOAA’s regulations,
National Pollutant Discharge
consistency determination. Information Federal agencies are not ‘‘applicants’’
Elimination System (NPDES) general
in these documents may be used as part within the meaning of 15 CFR 930.52.
permit under the Clean Water Act, then
of the necessary information required by See 65 FR 77145 (col 1&2) (Dec. 8,
2000). Even if NOAA were to change its the State may not review the use of the
15 CFR 930.39, but they are not required
regulations to allow a Federal agency to NPDES general permit for consistency at
to be part of the information required in
be an ‘‘applicant,’’ it is not clear how the OCS EP or DPP stage of reviews or
§ 930.39(a) and are not reviewed as the
the Federal agency could appeal the when a facility files a notice of intent to
proposed Federal agency activity for
State’s objection to the Secretary of be covered by a general permit under
consistency.
NOAA has changed ‘‘event(s)’’ to Commerce. the NPDES regulations. If, however, a
‘‘activity(ies)’’ since the term Further, even if a general permit were State objects to the OCS NPDES general
‘‘activities’’ more closely follows the treated as a federal license or permit permit, then each user, or ‘‘applicant’’
statute and NOAA’s regulations. activity for CZMA § 307 purposes and a in CZMA parlance, must file a
The final rule makes minor changes State objected, it would be problematic consistency certification with the State
from proposed rule. There is no change for the potential users of a general pursuant to subpart D, and obtain the
in meaning from the proposed rule. The permit to appeal the State’s objection State’s concurrence before it may
first sentence in this section in the since there would be no case specific undertake the activities authorized by
proposed rule language was factual inquiry on which the Secretary the NPDES general permit.
grammatically awkward. The final rule could base an appeal decision. Minor editorial changes were made
merely breaks the first sentence into two Other changes clarify that if a State from the proposed rule with no change
sentences and makes minor grammatical objects to a consistency determination in meaning. The term ‘‘approval’’ was
corrections to the second sentence. for a general permit, the general permit replaced with ‘‘issuance’’ since issuance
Rule Change 5: § 930.31(d) Federal would, pursuant to the consistent to the more accurately describes the
agency activity—General Permits. In the maximum extent practicable standard as distinction between a general permit
2000 rule, NOAA acknowledged the described in 15 CFR 930.32, still be in and case-by-case permits. The last
hybrid nature of general permits and legal effect for that State, but that 15 sentence was not clear regarding when
gave Federal agencies the option of CFR part 930, subpart C of the someone had to provide the State with
issuing a general permit under either consistency regulations would no longer a certification after a State objected to a
CZMA § 307(c)(1) (Federal agency apply. Thus, a State objection to a general permit. The change provides a
activity) or CZMA § 307(c)(3)(A) (federal consistency determination for the clearer statement that only applicants
license or permit activity), even though issuance of a general permit would alter and persons who want to use a general
NOAA has opined that, for CZMA the form of CZMA compliance required, permit would have to provide the
purposes, a general permit was more transforming the general permit into a certification, and not all potential users
appropriately treated as a Federal series of case-by-case CZMA decisions in the State. The general permit section
would only apply to subpart D and E Federal agency, the conflict resolution extension), request additional
applicants. provisions of subpart G are available. information during the State’s 60-day
Rule Change 6: § 930.35(d) General A minor editorial change was made review, or object for lack of information
negative determination. Section from the proposed rule. NOAA replaced at the end of the 60-day review period.
930.35(d) is changed to (e) and a new the word ‘‘specified’’ with ‘‘specific.’’ A minor editorial change was made
section 930.35(d) is added. The general Rule Change 7: § 930.37 Consistency from the proposed rule. The last
negative determination (General ND) determinations and National sentence was grammatically awkward so
has been developed as an administrative Environmental Policy Act (NEPA) it was broken into two sentences, with
convenience when Federal agencies requirements. The change clarifies no change in meaning.
undertake repetitive activities that, information needs related to NEPA Rule Change 9: § 930.51(a) Federal
either on an individual, case-by-case documents by providing more specific license or permit. The language changes
basis or cumulatively, do not have direction of the long-standing emphasize and clarify NOAA’s long-
coastal effects. The General ND does not understanding of the distinction standing view of the elements needed
alter the factual basis required for between NEPA and CZMA. Federal determine that an authorization from a
federal consistency reviews. agencies are required to submit Federal agency is a ‘‘federal license or
A General ND does not alter the information to support a consistency permit’’ within the meaning of the
requirement for Federal agencies to determination, pursuant to the CZMA and therefore subject to State
provide consistency determinations to requirements in § 930.39, and may do so federal consistency review. First,
coastal States when there are reasonably in any manner it chooses. Thus, even Federal law must require that the
foreseeable coastal effects, the ‘‘effects though a Federal agency may provide a applicant obtain the federal
test.’’ The Federal agency must still NEPA document to support its authorization. Second, the purpose of
consistency determination, States the federal authorization is to allow a
make an analysis of coastal effects for
cannot require Federal agencies to do non-federal applicant to conduct a
the repetitive activities, individually
so. proposed activity. Third, the activity
and cumulatively. The General ND is an Rule Change 8: § 930.41(a) State
analogue to the existing General proposed must have reasonably
agency response. This change clarifies foreseeable effects on a State’s coastal
consistency determinations (15 CFR when the State’s consistency review
930.36(c)) (which is for repetitive uses or resources, and fourth, the
period begins for Federal agency proposed activity was not previously
activities which do have cumulative activities. The changes provide
effects). For example, a General ND may reviewed for federal consistency by the
additional clarification that the State’s State agency (unless the authorization is
apply to activities far away from the determination of whether the
coastal zone because coastal effects are a renewal or major amendment pursuant
information provided by the Federal to § 930.51(b)). All four of these
not foreseeable, but might not apply to agency pursuant to 15 CFR 930.39(a) is
the same set of activities if proposed in elements are required to trigger federal
complete, is not a substantive review. consistency review.
or near the coastal zone where the Instead, it is a ‘‘checklist’’ review to see For CZMA federal consistency
proximity of the activities to coastal if the description of the activity, the purposes, ‘‘federal license or permit’’
uses or resources may have coastal coastal effects, and the evaluation of the does not include federal authorizations
effects and require a General State’s enforceable policies are included for activities that do not have coastal
consistency determination or individual in the submission to the State agency. If effects. Federal consistency does not
consistency determination. the items required by § 930.39(a) are apply to a required federal certification
A Federal agency is not required to included, then the 60-day review starts. of an applicant’s ministerial paperwork
use a General ND. If any one of the This review does not determine or which is merely incidental or related to
conditions for a negative determination evaluate the substantive adequacy of the an activity that either does not have
are met, then a Federal agency could information. The adequacy of the coastal effects or an activity that is
choose to provide the State with either information is a component of the already subject to federal consistency
an individual Negative Determination, State’s substantive consistency review review. Ministerial certifications which
or if applicable, a General ND. The which occurs during the 60-day review are merely incidental to an activity
conditions for a Negative Determination period. undertaken by the applicant and which
are when a Federal agency determines To help resolve disputes as to when has already or will soon be the subject
that its proposed action will not have the 60-day review period started when of a full federal consistency review are
coastal effects and the activity is (1) a State later claims that required not federal license or permit activities
listed in the State’s program or the State information was not provided, NOAA for subpart D purposes. The following
has notified the Federal agency that it replaced the requirement to examples are authorizations which are
believes coastal effects are reasonably ‘‘immediately’’ notify the Federal not a ‘‘federal license or permit’’ under
foreseeable, (2) the activity is the same agency that information required by the CZMA:
as or is similar to activities for which § 930.39(a) is missing with a 14-day
consistency determinations have been notification period. If the State agency Example 1. MMS makes certain
prepared in the past, or (3) the Federal determinations such as the qualification of
has not notified the Federal agency of bidders for OCS lease sales, bonding
agency undertook a thorough missing information within this 14-day certifications, certifications of financial
consistency assessment and developed period, then the State waives the ability responsibility, approvals of departures from
initial findings on the coastal effects of to make that claim and the 60-day regulations in order to enhance safety.
the activity. See 15 CFR 930.35(a)(1)– review period is deemed to have started Example 2. A Federal agency certifies
(3). when the State received the initial equipment to be used for an activity where
If a State subsequently finds that a determination and information. This the activity has already been the subject of
a consistency review.
General ND may no longer be means that State agencies should pay

Example 3. MMS issuance of ‘‘Notification
applicable, the State agency may request close attention to the date they receive requirements’’ which merely require the
that the Federal agency reassess the consistency determinations. States operator to notify MMS of an activity and
General ND. In the case of a retain the ability to conduct a full 60- where MMS’ approval is not required are not
disagreement between the State and the day review (or 75-day review with subject to federal consistency.
Example 4. When the Coast Guard merely Rule Change 10: § 930.51(e) consistency certification.’’ The language
reviews the transportation plan of an energy Substantially different coastal effects. removed is viewed as ambiguous
company transporting spent nuclear waste by Section (e) was added in the 2000 rule because it could refer to the other
ship, there is no ‘‘license or permit’’ under to emphasize that determining whether paragraphs in this section or to other
CZMA section 307(c)(3)(A) because Coast
Guard authorization is not required by
the effects from a renewal or major undefined information, and could create
Federal law. See New Jersey v. Long Island amendment are substantially different is uncertainty in the determination of
Power Authority, 30 F.3d 403 (3d Cir. 1994) a case-by-case factual determination when the six-month review period
(Coast Guard review of vessel transportation requiring the input of all parties. NOAA starts. Section 930.58(a)(2) allows the
plans was not a Federal agency activity or used the phrase ‘‘the opinion of the State to describe in its CMP the
federal license or permit activity). State agency shall be accorded necessary specific information in
However, a lease issued by a Federal deference,’’ (emphasis added) to help addition to that required by NOAA
agency to a non-federal entity which is ensure that the State agency has the regulations.
the only federal authorization for the opportunity to review coastal effects These changes do not affect a State’s
use of the federal property for a non- which may be substantially different ability to specifically describe
federal activity is a ‘‘federal license or than previously reviewed. NOAA ‘‘necessary data and information’’ in the
permit,’’ pursuant to section expected that the parties would discuss State’s federally approved management
307(c)(3)(A), if the applicant is required the matter and agree whether effects are program (§ 930.58(a)(2)), or to request
substantially different. NOAA did not additional information during the six-
to obtain a lease from the Federal
intend to use the phrase to have the month review period (§ 930.60(c)), or to
agency for use of the Federal property,
State agency make the decision on object for lack of information
the proposed activity will have coastal
whether coastal effects are substantially (§ 930.63(c)).
effects, and the State did not previously
different. Thus, to provide clarification, There is no change from the proposed
review a required federal authorization
NOAA has amended the section so that rule.
for the same activity.
the Federal permitting agency makes Rule Change 12: § 930.58(a)(2)
Thus, the language changes to the rule
this determination after consulting with Necessary data and information (State
ensure that the definition of ‘‘federal
the State and applicant. If a State permits). In the 2000 rule, NOAA
license or permits’’ is not overly-
disagrees with a Federal agency’s
inclusive or beyond the commonly allowed States to describe State permits
determination concerning substantially
understood meaning of license or as necessary data and information.
different coastal effects, then the State
permit, while at the same time retaining Unfortunately, implementation of this
could either request NOAA mediation
the phrase ‘‘any required authorization’’ provision revealed the potential for
or seek judicial review to resolve the
to capture any form of federal license or States to require applicants to obtain
factual dispute.
permit that is: (1) Required by Federal A minor editorial change was made State permit approval before the six-
law, (2) authorizes an activity, (3) the from the proposed rule breaking the month consistency review period could
activity to be authorized has reasonably second sentence into two sentences, begin. This could result in a State
foreseeable coastal effects, and (4) the with no change in meaning. consistency decision before the six-
authorization is not incidental to a Rule Change 11: § 930.58(a)(1) month review period even begins, thus
federal license or permit previously Necessary data and information. This potentially defeating the statutory time
reviewed by the State. Thus, the change provides more specific frames in the CZMA. In addition, the
removal of the forms of approvals listed information requirements for federal public comment on federal consistency
in the current language does not exclude license or permit activities. The purpose could be rendered moot because
any category of federal authorizations of § 930.58 is to identify the information necessary State approvals would already
from federal consistency, but instead needed to start the six-month have been obtained. NOAA did not
emphasizes that any form of federal consistency review period and to the intend the 2000 rule to create a potential
authorization must have the required extent possible, identify the information conflict between the statutorily defined
elements to be considered a ‘‘federal needed by the State agency to make its six-month consistency review process
license or permit’’ for CZMA purposes. concurrence or objection. Thus, the and State permit requirements. While it
Factual disputes concerning whether more specific the information may be appropriate or necessary for a
a federal authorization is subject to requirements are, the more predictable State to require completed State permit
federal consistency can be addressed and transparent the process. applications as necessary data and
through NOAA’s procedures for the Section 930.58(a)(1) is reorganized to information, it is not appropriate to
review of listed or unlisted federal clarify that ‘‘necessary data and require a State approved or issued
license or permit activities. 15 CFR information’’ means (1) a copy of the permit. Therefore, NOAA has removed
930.53 and 930.54. federal application, (2) all supporting ‘‘State permits’’ as eligible necessary
The effects test language previously at material provided to the Federal agency data and information requirements, but
the end of the definition is deleted as in support of the application, (3) has retained State permit applications.
superfluous since subpart C contains the information that is required and This change, as described in the
effects analysis for Federal agency specifically described in the State’s proposed rule, contemplated
activities. management program, and (4) if not ‘‘complete’’ State permit applications,
A minor editorial change was made included in 1 or 2, a detailed and NOAA has included ‘‘complete’’ in
from the proposed rule with no change description of the activity, its associated the final rule. When appropriate, the
in meaning. The proposed language was facilities and the coastal effects of the applicant and the State could agree,
somewhat redundant and awkward. activity. The evaluation of the State’s pursuant to § 930.60, to stay the six-
NOAA moved the end of the first enforceable policies is retained under month period until a specific date to
sentence to the beginning, providing a § 930.58(a)(3). allow for issuance of the State permit.
clearer flow for the sentence. In NOAA removed the clause in A State, at the end of the six-month
addition, a minor correction was made § 930.58(a)(1) that said ‘‘and review period may, of course, object if
to add the phrase ‘‘federal license or comprehensive data and information the applicant has not yet received the
permit’’ to the second sentence. sufficient to support the applicant’s State permit.
In addition, NOAA added language to writing to stay the review period until a state of its authority pursuant to CZMA
clarify that when a Federal statute a specific end date. NOAA deleted the section 307(c)(3)(A). However, filing a state
requires a Federal agency to initiate the word ‘‘extend’’ to avoid potential objection without an underlying consistency
certification provided by the applicant is
CZMA review prior to its completion of conflicts with the six-month period set
neither a remedy for the applicant’s failure to
NEPA compliance, NEPA documents by statute. Thus, the State agency and comply with the CZMA, nor a valid exercise
will not be considered necessary data applicant can stay or ‘‘toll’’ the running of [the State’s] own CZMA authorities.
and information pursuant to of the six-month review period for an The statutory language and scheme of the
§ 930.58(a)(2). For example, when the agreed upon time ending on a specific CZMA presumes that the applicant has the
operation of a Federal statute precludes date, after which the remainder of the first opportunity to demonstrate that its
a Federal agency from delaying the start six-month review period would activity is consistent with the enforceable
of the CZMA process because the NEPA continue. Such agreements must be set policies of the state CMP. Section
document is not complete, NEPA forth in writing so that it is clear there 307(c)(3)(A) provides in pertinent part: ‘‘[a]t
the earliest practicable time, the state or its
documents listed in a State’s is a meeting-of-the-minds between the
designated agency shall notify the Federal
management program cannot be State and the applicant. Ideally, the agency concerned that the state concurs with
considered necessary data and written agreement should be one or objects to the applicant’s certification.’’
information. This issue has come to document that both parties sign. The The NOAA regulations also require a state
light in the case of the Outer written agreement for a stay must refer objection be made in response to the
Continental Shelf Lands Act (OCSLA). to a specific end date and should not be applicant’s consistency certification. 15 CFR
See explanation of rule change 15: written to require a later event or 930.64. Likewise, consistency cannot be
§ 930.76(a) and (b) Submission of an condition to be satisfied to end the stay. presumed without the receipt of a
OCS plan, necessary data and If a State wants to require information consistency certification. 16 U.S.C.
information and consistency in addition to that required by NOAA in 1456(c)(3)(A) and 15 CFR 930.63. Finally,
NOAA’s regulations anticipate that the
certification. In addition, neither the § 930.58(a) prior to starting the six-
applicant will have the first opportunity to
CZMA nor NEPA require the Federal month review period, the only way the provide the state with the necessary
agency to include CZMA consistency State can do so is to amend its information and data to demonstrate
determination information in NEPA management program to identify consistency with the state CMP and that only
documents. Therefore, States cannot specific ‘‘necessary data and after the receipt of that information can the
delay the start of the CZMA review information’’ pursuant to § 930.58(a)(2). state consistency review process begin. See
period because CZMA consistency This is not a new requirement, but was 15 CFR 930.58.
information is not included in a NEPA required in the 1979 rule and clarified Given the language and structure of the
document. in the 2000 rule. statute and NOAA’s implementing
Two minor changes were made from NOAA also has removed a State’s regulations, it is clear that an applicant’s
option of starting the six-month review consistency certification is essential to a
the proposed rule. As discussed in the
state’s Federal consistency review. Therefore,
preamble to the proposed rule and in period when a consistency certification
I conclude that a State may not ‘‘object’’
this final rule NOAA intended the rule has not been submitted. See below within the meaning of the CZMA, to an
to refer to ‘‘completed’’ State permit under Collier Decision for further application for a federal license or permit
applications. Thus, ‘‘completed’’ is information. The rest of the re-write of when no consistency certification has been
added to the third sentence. The second the section more clearly sets forth the submitted. Florida’s objection in this case has
change is the language regarding NEPA existing provisions for starting the six- no effect or is not valid.
documents discussed above. month review period when (1) the A coastal state is not without remedy,
Rule Change 13: § 930.60 applicant has not provided a however, when a recalcitrant applicant
Commencement of State agency review. consistency certification, but has declines to provide the necessary consistency
These changes clarify when the State’s certification. First, both the statute and the
provided the necessary data and
regulations make it clear that a Federal
six-month review period begins for information described in § 930.58(a), (2) agency cannot issue a license or permit until
federal license or permit activities. The the applicant has provided the ‘‘the state or its designated agency has
changes clarify that the State’s consistency certification, but not all concurred with the applicant’s consistency
determination of whether the necessary data and information certification or until by the state’s failure to
information provided by the applicant described in § 930.58(a), or (3) the act, the concurrence is conclusively
pursuant to 15 CFR 930.58 is complete applicant has not provided either the presumed.’’ 16 U.S.C. 1456(c)(3)(A). In
is not a substantive review. Instead it is consistency certification or all necessary addition, a state may seek enforcement of the
a ‘‘checklist’’ review to see if the data and information. The paragraphs CZMA in federal court. Unlike the Secretary
application, description of the activity, of Commerce, the federal courts have the
have been renumbered accordingly.
the coastal effects, the evaluation of the authority to require compliance with federal
The Collier Decision. Under the 2000
law through the issuance of mandamus,
State’s enforceable policies, and specific rule, § 930.60(a)(1)(ii) allowed a State to injunction and other relief.
information described in the State’s start the six-month consistency review Optimally, in matters such as this, where
federally approved program are period even if the applicant had not an applicant disagrees that its permit or
included in the submission to the State provided a consistency certification or license activity is subject to the provisions of
agency. If the items required by § 930.58 the necessary data and information. a state CMP can be resolved through the
are included, then the six-month review However, now, as described in Collier, availability of mediation services of NOAA’s
starts. This review does not determine NOAA has determined that a State Office of Ocean and Coastal Resource
or evaluate the substantive adequacy of could not start the six-month review Management (OCRM), 15 CFR 930.55, or an
the information. The adequacy of the advisory letter issued by OCRM pursuant to
without the applicant’s consistency
information is a component of the 15 CFR 930.142 (15 CFR 930.3(2001)). While
certification. See NOAA’s Dismissal these informal procedures do not carry the
State’s substantive review which occurs Letter in the Consistency Appeal of weight of a federal court order, they represent
during the six-month review period. Collier Resources Company (April 17, the views of the expert agency charged with
The change also further clarifies that a 2002). In Collier, NOAA determined the implementation of the CZMA. These
State may not stop, stay or otherwise that: informal remedies are also more expedient
alter the consistency review period once An applicant’s failure to provide a state and less costly than the Secretarial appeals
it begins, unless the applicant agrees in with a consistency certification cannot divest process or federal litigation.
While not central to the decision The waiver and last statement in the EA to the State when the EA is
made in Collier, NOAA opined in paragraph (a)(2) more clearly describes completed. Since the State receives the
Collier that the six-month review period the requirements that were in (a)(1)(ii), EA within a very short period (20–30
could also only start after receipt of the allowing the State to choose to start the days) after the start of the six-month
necessary data and information. Id. review period before receiving all review period, the CZMA process is not
However, NOAA has determined that a necessary data and information. The last delayed unnecessarily.
State could, if it wished to, waive the sentence in paragraph (a)(3) is needed For DPP’s, States can amend their
requirement that all necessary data and when the State starts the six-month programs, pursuant to 15 CFR
information be received and start the review period before receiving all 930.58(a)(2), to include draft NEPA
six-month review upon receipt of a necessary data and information (i.e., the documents as data and information
consistency certification, but without ‘‘waiver’’ described in (a)(2)) to make necessary to start the six-month review,
the necessary data and information (but clear that the review period does not because there is additional time in the
could not then later stop the six-month start anew when the State receives the OCSLA process. See 43 U.S.C. 1351(h)
time period without agreement from the missing necessary data and information. and 30 CFR 250.204(1). States can not
applicant). NOAA makes this Minor edits were made to paragraph amend their programs to require final
distinction because, as discussed in (a)(3), which was (a)(2) in the proposed NEPA documents for OCSLA purposes
Collier, a consistency certification is rule; paragraph (b), which was (a)(3) in as part of the necessary data and
central to the State’s jurisdiction and the proposed rule; and paragraph (c), information because the OCSLA
authority under the statute to conduct a which was (b) in the proposed rule. requires MMS to approve or deny a DPP
consistency review. Allowing necessary Rule Change 14: § 930.63(d). The within 60 days after completion of the
data and information to be submitted cross reference to 930.121(d) is final EIS. Id. This 60-day OCSLA period
after the six-month period has begun incorrect. There is no 930.121(d). The does not provide sufficient time for the
provides flexibility to the State and reference is to 930.121(c). There is no six-month CZMA consistency review
applicant. change from the proposed rule. period.
Various edits to § 930.60 were made Rule Change 15: § 930.76(a) and (b)
Paragraph (a) is deleted and combined
from the proposed rule. These edits do Submission of an OCS plan, necessary
with (b) as (a) is redundant with (b),
not change the meaning of the proposed data and information and consistency
certification. These changes address particularly (1) and (3).
rule and do not add or remove
information requirements for OCS There is a minor correction from the
requirements that were not described in
plans. The changes provide a more proposed rule. The term ‘‘confidential’’
the proposed rule. Some of the changes
specific list of the information required. is added at the of § 930.76(b), because
to this section in the proposed rule were
Clean Air Act and Clean Water Act the phrase used throughout the
difficult to follow. Therefore, the final
permits are not included in NOAA’s regulations is ‘‘confidential and
rule somewhat reorganizes and restates
regulations as these permits are already proprietary information.’’
the requirements described in the
proposed rule. The final rule replaces required to be ‘‘described in detail’’ in Rule Change 16: § 930.77(a)
‘‘information’’ in this section with OCS plans and are covered under the Commencement of State agency review
‘‘necessary data and information’’ to be State’s review of the OCS plan. See 30 and public notice. This change clarifies
clear that the section refers to the CFR 250.203(b)(4), 203(b)(19), the time when the State’s consistency
necessary data and information 204(b)(8)(ii) and 204(b)(14). Thus, States review period begins for OCS plans. The
described in § 930.58(a), and not to should review CWA and CAA permit changes provide additional direction
other information the State may want applications concurrently with the OCS that the State’s determination of
during the six-month review. Also, the plan review. If the CWA and CAA whether the information provided by
final rule uses ‘‘review period’’ as a information is not described in detail in the person pursuant to 15 CFR 930.76 is
more accurate description than an OCS plan, then subpart D applies. complete, is not a substantive review.
‘‘timeclock.’’ While the status of the completion of Instead, it is a ‘‘checklist’’ review to see
In paragraph (a), the reference to NEPA documents is an issue raised by if the OCS plan, description of the
930.54(e) is removed because there is no coastal States when performing activity, the coastal effects, the
exception in § 930.54(e), as changed in consistency reviews, NOAA is not evaluation of the State’s enforceable
the 2000 rule. Paragraph (a)(1) is adding language requiring that NEPA policies, specific information described
rewritten to be clear that this paragraph documents be included as information in the State’s federally approved
describes the requirement that a necessary to start the six-month review program, and information required by
certification must be submitted to start period. A requirement that NEPA Interior’s regulations are included in the
the review period. Paragraph (a)(2) more documents (draft or final) be completed submission to the State agency. If the
clearly describes the cases where either prior to the start of the six-month review items required by § 930.76 are included,
the necessary data and information was period is incompatible with statutory then the six-month review starts. This
not received or both the consistency requirements in the OCSLA. 43 U.S.C. review does not determine the
certification and the necessary data and 1340(c)(1) and 1351(h). MMS must substantive adequacy of the
information are missing. The last clause make its decision whether to approve an information. The adequacy of the
in paragraph (a)(2) addresses the EP within 30 days of receipt of the EP. information is a component of the
scenario where both the certification Within that 30-day period, MMS State’s substantive review which occurs
and the necessary data and information completes its Environmental during the six-month review period.
are missing by clarifying that a Assessment (EA). Interior has informed The changes also clarify that if the
certification must be submitted, even if NOAA that, MMS submits the EP and State wants to require additional
the State elects to start the review accompanying information to the State information in addition to that required
period without all necessary data and within days of receipt of the EP to meet by § 930.76 for its review of OCS plans,
information. The requirements that were OCSLA requirements and to avoid delay it would have to describe such
in paragraphs (a)(1)(i) and (ii) in the in the CZMA process. The six-month information in an amendment to its
proposed rule are now more clearly review period starts when the State management program, pursuant to
described in paragraphs (a)(1) and (2). receives that information. MMS sends § 930.58(a)(2). This is not a new
provision, but was provided in the 1979 prior to the 2000 rule revisions, NOAA change in standards or practice, only a
rule and restated in the 2000 rule. makes this change to more closely clarification. As described in the 2000
This section is changed to address the coordinate CZMA and OCSLA rule, both the State and appellant and
circumstances where a State believes requirements. Under NOAA’s commenters on the appeal will be able
the information submitted, as required regulations and the OCSLA program, it to provide the Secretary with
by NOAA’s regulations, is insufficient is MMS that determines whether a information concerning an alternative.
(e.g., either the analysis is substantively change to an OCS plan is ‘‘significant’’ The addition of this sentence, however,
inadequate, or that the OCS plan and thus, whether the change requires makes clear that no alternative, whether
addresses new activities or effects not CZMA federal consistency review. This submitted to the Secretary by the
foreseen and for which information was determination should be the same for appellant, the State, a third party, or
not provided). In such a case a State failure to substantially comply with an identified by the Secretary will be
may request additional information. The approved OCS plan. This change would considered by the Secretary unless the
rule change requires that such a request be consistent with CZMA section State submits a written statement that
be made within the first three months of 307(c)(3)(B), and in fact the language is the alternative will allow the activity to
the six-month review period. A change taken directly from the statute. The be conducted in a manner consistent
is made from the proposed rule such previous language was developed in the with the enforceable policies of the
that, if after the three-month period, 1979 regulations as a means of management program. Otherwise, the
new activities or coastal effects not determining when a person has failed to Secretary would be required to make a
previously described and for which substantially comply. However, CZMA finding that the alternative is consistent
information was not provided become does not provide authorization to with the management program and
part of the OCS plan, then the State may NOAA to make such determinations, effectively substitute the Secretary’s
request additional information on the which should be made by MMS, judgement for that of the State. The
new activities or effects. A request for pursuant to the OCSLA and MMS Secretarial appeals process does not
additional information does not stop, regulations. Also, to be consistent with review whether the proposed activity is
stay or otherwise alter the six-month § 930.76(c), this change clarifies that it consistent with the State’s enforceable
review period. As discussed in rule is Interior, not the person, that submits policies, but is a de novo consideration
change 26, a consistency concurrence is the consistency certification and of whether a proposed activity is
limited to the scope of the activities and information to the State for OCS plans. consistent with the objectives of the
effects reviewed by the State. Three minor changes were made to CZMA or otherwise necessary in the
In addition to the minor substantive paragraph (c) from the proposed rule interest of national security. Therefore,
change from the proposed rule with no change in meaning. Grammar the Secretary relies on the State to
discussed above, two minor editorial was corrected in the first sentence by determine whether an alternative would
changes were made, with no change in reversing ‘‘substantially to’’ to ‘‘to allow the project to proceed in a manner
meaning. The first was to add the term substantially’’ and ‘‘comply’’ was consistent with the enforceable policies
‘‘certification’’ to the first sentence of changed to ‘‘come into compliance.’’ A of the management program. If a State
§ 930.77(a)(1) since the proposed third change was made to the second determines an alternative is consistent
language could be incorrectly sentence to acknowledge the applicable with its CMP and the Secretary does not
interpreted to mean that the six-month process under Interior’s regulations. override the State’s objection to the
review period could start with the Rule Change 19: § 930.121(c) proposed activity, then the applicant
necessary data and information, but not Alternatives on appeal. This provision may pursue the identified alternative
a certification. The second editorial was amended in the 2000 rule to approved by the State without further
change is to rewrite the second sentence address ‘‘confusion as to when CZMA review by the State.
of § 930.77(a)(2). The original sentence, alternatives may be raised, the A minor editorial change with no
while referring to the necessary data and consequences of a State agency not change in meaning was made from the
information section for OCS plans, providing alternatives or [sic] when it proposed rule in the beginning of the
930.76, it is not clear that this is a issues its objection, and the level of third sentence.
reference to the need to amend the specificity that the State agency needs to Rule Change 20: § 930.123
State’s program if the State wants to provide to satisfy the element on Definitions. Section 930.123 previously
require additional necessary data and appeal.’’ 65 FR 77151 (December 8, defined only ‘‘appellant’’ and ‘‘Federal
information to start the six-month 2000). Implementation of this change agency’’ for appeal purposes. The
review period as opposed to a State’s has prompted NOAA to make several Energy Policy Act described three other
request for additional information after refinements in the language. The word terms related to CZMA appeals that
the six-month review period has started. ‘‘new’’ is struck to clarify that all NOAA will use in subpart H and need
Rule Change 17: § 930.82 Amended information submitted to the Secretary to be defined as well. These three terms
OCS plans. To be consistent with during the appeal may be considered in are ‘‘energy project,’’ ‘‘consolidated
§ 930.76(c), this change clarifies that it determining whether an alternative is record,’’ and ‘‘lead Federal permitting
is Interior, not the person, that submits reasonable and available. The word agency.’’ The definition of ‘‘energy
the consistency certification and ‘‘submitted’’ is substituted for the word project’’ is broad to cover foreseeable
information to the State for amended ‘‘described’’ to reflect more accurately energy facilities related to delivery of
OCS plans. the manner in which information energy, e.g., electricity transmission,
There is a minor correction from the becomes part of the decision record of and development of energy resources,
proposed rule. The term ‘‘confidential’’ an appeal. e.g., crude oil and natural gas. For
is added at the end of § 930.82, because The last sentence is added to make example, energy project would include:
the phrase used throughout the clear that the Secretary does not nuclear power plants; offshore oil and
regulations is ‘‘confidential and substitute his judgement for that of the gas exploration, development, and
proprietary information.’’ State in determining whether an production facilities; natural gas
Rule Change 18: § 930.85 Failure to alternative is consistent with the pipelines; Liquefied Natural Gas (LNG)
substantially comply with an approved enforceable policies of the State terminals; hydroelectric facilities; wind
OCS plan. While this section existed management program. This is not a power facilities; wave and tidal energy
projects; ocean thermal energy publish its 30-day notice of the appeal to cite to. These changes are provided to
conversion projects; where these in the Federal Register before knowing encourage the appellant and State
projects would require a federal whether appellant wanted to continue agency to help the Secretary meet the
authorization under numerous federal with the appeal. deadlines established in the Energy
statutes such as the Nuclear Energy Act, Rule Change 22: § 930.127 Briefs and Policy Act.
OCSLA, Natural Gas Act, Federal Power Supporting Materials. The changes in The change to § 930.127(f) would
Act, etc. § 930.127 reflect changes in practice move language from § 930.130(d)
The Energy Policy Act defined necessary to accommodate the time regarding the appellant’s burden to
‘‘consolidated record,’’ and NOAA has frames for the closure of the decision support its appeal. NOAA has removed
adopted that definition in the record in § 930.130 and to make the language that was in the proposed rule
regulations as the record of all decisions administration of the appeals process regarding the State’s burden of
made or actions taken by the lead more efficient and transparent to the persuasion for alternatives. This is a
Federal permitting agency or by another public, States and potential appellants. minor change, since the proposed rule
Federal or State administrative agency These changes will likely mean that appeared to misstate the Secretary’s
or officer, maintained by the lead States, appellants, Federal agencies and long-standing practice in accordance
Federal permitting agency, with the the public will have to be more diligent with the Secretary’s decision in Korea
cooperation of Federal and State in providing thorough and complete Drilling Inc. at 23 (1989) (‘‘If a State
administrative agencies, related to any information to the Secretary in a shorter describes one or more consistent
federal authorization for the permitting, amount of time. The changes allow each alternatives in its objection, the burden
approval or other authorization of an party and the public, in most cases, only shifts to the appellant. In order to
energy project. one opportunity to provide their prevail on Element [three], the appellant
The term ‘‘lead Federal permitting information and arguments to the must then demonstrate that the
agency’’ as used in the Energy Policy Secretary. The changes reflect the fact alternative(s) is unreasonable or
Act, is meant to apply to the Federal that the Secretary needs only sufficient unavailable’’). Thus, the State’s burden
agency required to issue authorizations time and information to make a rational regarding alternatives is described in
under the various energy-related and well-reasoned determination of sections 930.63(d) (describing
statutes and which would be subject to each of the elements in 15 CFR 930.121 alternatives with sufficient specificity),
a federal license or permit under or 930.122. and 930.121(c) (determining if the
subparts D or I, approval of an OCS plan NOAA has retained the requirement alternative is consistent with the State’s
under subpart E, or federal financial from the proposed rule that the enforceable policies).
assistance under subparts F or I, of this appellant’s brief is due within 30 days NOAA also amended paragraph (c)(1)
part for an energy project. of the filing of the notice of appeal and to more clearly describe the content of
Rule Change 21: § 930.125 Notice of the State’s brief will be due 60 days after the decision record and that the
appeal and application fee to the appellant’s filing of the notice of appeal. Secretary takes notice of the
Secretary. In order to process an appeal It was necessary to retain these time administrative decisions and records of
within the time frames required by the periods in order to meet the 160-day the authorizing Federal agency, when
Energy Policy Act, as described in period established by the Energy Policy the information is submitted to the
§ 930.130, changes are made to various Act. In addition, NOAA provided a 20- Secretary’s appeal decision record.
sections (§§ 125, 127, 128 129 and 130) day period for the appellant to file a Paragraph (g) is amended to allow the
to ensure that briefs, information, and reply brief to the State agency’s brief. Secretary to extend the time for
public and Federal agency comment NOAA is including the appellant’s reply submission, and length, of briefs and
periods accommodate a restricted time brief, but not a reply brief from the State supporting materials for good cause.
period for developing the decision agency for the following reasons. It is NOAA has added paragraph (i) to
record and issuing a decision. These standard appellate procedure and is comply with provisions in the Energy
procedures will provide due process predicated on the fact that the State Policy Act specifying the content of the
and fair opportunity for comment to all agency’s principal brief is a reply to the Secretary’s decision record for energy
parties and the public. appellant’s principal brief. Since the projects, including projects requiring an
Changes were made from the State agency may raise issues not authorization under section 3 or a
proposed rule. The changes are meant to addressed by appellant, appellant certificate of public convenience and
further highlight that, given the 160-day should be able to reply since appellant necessity under section 7 of the Natural
deadline to close the decision record, a bears the burden of persuasion on the Gas Act (15 U.S.C. 717b and 717f). The
60-day limit on a stay of the 160-day appeals. Further, NOAA’s regulations Energy Policy Act requires that the lead
period, and a 60–75 day period to issue do provide the Secretary with flexibility Federal permitting agency, with the
a decision after the decision record to require supplemental briefs if deemed cooperation of Federal and State
closes, the appellant’s notice of appeal necessary. Therefore, if a State agency administrative agencies, maintain a
must, at least, raise all issues to be wanted to reply to a particular matter consolidated record of all decisions
addressed. These issues can be further raised in appellant’s reply brief, it could made or actions taken by the lead
explored in the appellant’s brief, but request that the Secretary authorize agency or by another Federal or State
they must at least be raised in the notice such a brief. administrative agency or officer. The
of appeal in order to be considered by NOAA has added new §§ 930.127(b) Secretary must use this consolidated
the Secretary. and (c). In paragraph (b) NOAA record for CZMA appeals. The Secretary
NOAA also changed the deadline in establishes page limits for briefs and in may supplement the consolidated
paragraph (f) that an appellant must (c) a slightly different way for the record pursuant to CZMA section 319,
submit the appeal fee if the Secretary appellant and State agency to organize as amended by the Energy Policy Act
denies a fee waiver request from 20 days the supporting documentation and and as described in § 930.130(a)(2) of
to 10 days. This change is necessary to material. By establishing an this final rule. The Secretary may
meet the new appeal deadlines ‘‘appendix,’’ as is done for judicial require any supplemental information
established by the Energy Policy Act. proceedings, the parties and the specifically requested by the Secretary
Otherwise, NOAA would likely have to Secretary would have a common record to complete a consistency review under
the CZMA, or any clarifying information § 930.130(a)(2). Therefore, to have their the proposed language regarding
submitted by a party to the proceeding views included in the consolidated ‘‘extending’’ the appeal process. By
related to information in the record, interested parties should submit establishing the new 160-day period for
consolidated record compiled by the comments on energy projects when the closing the decision record, the
lead Federal permitting agency. lead Federal permitting agency provides Secretary would not ‘‘extend’’ the
The intent of the Energy Policy Act such comment periods according to processing of the appeal beyond the 160
and paragraph (i) is to provide a more applicable Federal law, and through the days, but would stay (or ‘‘toll’’ the
efficient and less time consuming State agency’s CZMA review, including running of) the 160-day period,
process to develop a decision record for comments related to the CZMA and pursuant to the stay provisions in
CZMA appeals. Relying principally on potential appeals to the Secretary. 930.130. In paragraph (d) NOAA
the lead Federal permitting agency’s Rule Change 23: § 930.128 Public removed the ‘‘20-day’’ period giving the
consolidated record should help. NOAA notice, comment period, and public Secretary more flexibility to determine
has determined that in order to hearing. The changes to § 930.128 the time period for remand back to the
effectively and efficiently frame and would accommodate the 160-day period State during the 160-day period to
evaluate CZMA arguments needed to to develop the decision record in develop the decision record.
decide the grounds for appeal described § 930.130. Other changes promote Rule Change 25: § 930.130 Closure of
in § 930.121 for an appeal of an energy clarity and efficiency in obtaining the decision record and issuance of
project, briefs required in § 930.127(a), comments from the public and decision. NOAA’s proposed 270-day
(b) and (c) are required. This is interested Federal agencies, and in period to develop the decision record,
consistent with Energy Policy Act processing the appeal. In addition, and the stays for NEPA and ESA
requirements for the consolidated NOAA makes explicit the Secretary’s purposes, were superceded by the
record. NOAA recognizes that the practice of giving additional weight to a Energy Policy Act. The provisions in
Energy Policy Act is a limitation on the Federal agency’s comments when the § 930.130 now follow the wording of the
Secretary’s evidentiary record. NOAA comments concern topics within the Energy Policy Act. The section now
does not believe such limitation area(s) of the agency’s technical provides 160 days as a definitive date by
includes appeal briefs. The consolidated expertise. which the Secretary shall close the
record is the background materials and Other changes were made from the decision record in appeals filed from
comments compiled as part of the lead proposed rule. In paragraph (b), NOAA State objections under 15 CFR part 930,
Federal permitting agency, other Federal established a definitive 30-day comment subparts D, E and F. The Secretary may
and State agency processes, and period for both the public and Federal stay the 160-day period for a period not
maintained by the lead Federal agencies. Pursuant to the requirements to exceed 60 days: (1) If the parties
permitting agency. The CZMA appeal of the Energy Policy Act, NOAA will not mutually agree to stay the 160-day
briefs are needed so appellants and provide a public or Federal agency period or, (2) to ensure that the
State agencies can use the consolidated comment period for appeals of energy Secretary has any supplemental
record and argue their case before the projects. Supplemental public or information specifically requested by
Secretary; otherwise, parties would not Federal agency comment during the the Secretary to complete a consistency
be able to argue their CZMA case. Secretary’s review of an appeal for an review under the CZMA, or any
Moreover, the Energy Policy Act clearly energy project may only be provided if clarifying information submitted by a
expects CZMA appeals to be processed the Secretary determines such party to the proceeding related to
since it describes decision record opportunity for comment is needed information in the consolidated record
deadlines. If no briefs were allowed pursuant to § 930.130(a)(2). The 30-day compiled by the lead Federal permitting
there would be no reason to have any comment period will be noticed in the agency. This could include relevant
decision record deadlines for energy Secretary’s Notice of Appeal. This is NEPA and ESA documents, if the
projects. needed to accommodate the 160-day Secretary determines that such
Further, in order for the Secretary to period to develop the decision record. information is needed to decide the
have sufficient time within the 160-day The Secretary will be able to provide a appeal. NOAA continues to emphasize
decision record period to evaluate the longer comment period, if necessary, that if NEPA or ESA documents are
decision record, the appellant must pursuant to § 930.127. Minor edits were needed, this does not mean that the
submit the lead Federal permitting made to the last sentence of paragraph Secretary would create NEPA or ESA
agency’s consolidated record along with (c)(1) to be more precise about documents for the appeal. The Secretary
appellant’s notice of appeal. NOAA has comments from Federal agencies. A would only be seeking NEPA and/or
provided that, notwithstanding minor change was made to paragraph ESA documents required for the Federal
§ 930.125(e), the Secretary, for good (d) changing the time period from 45 agency authorization or funding which
cause shown, may extend the time days to 30 days for submitting a request is the subject of the appeal. The
required for filing a notice of appeal for for a public hearing. In addition, NOAA Secretary’s action in deciding a
an energy project to allow appellant clarified that if a public hearing is held, consistency appeal does not require the
time to prepare the consolidated record the comment period shall be reopened preparation of environmental analyses
for filing. and public and Federal agency pursuant to NEPA and ESA.
Finally, in keeping with the comments must be submitted 10 days Other changes are made to more
timeframes mandated by the Energy after the hearing. These changes will accurately track the existing statutory
Policy Act, NOAA will not provide a help the Secretary process appeals in a language. Minor grammatical edits were
public or Federal agency comment timely manner. made from the proposed rule, with no
period for appeals of energy projects. Rule Change 24: § 930.129 Dismissal, change in meaning.
The appellant, State agency, Federal remand, stay, and procedural override. Rule Change 26: §§ 930.46(a)(3),
agencies or the public may only submit The additions to 930.129 accommodate 930.66(a)(3), 930.101(a)(3)
supplemental materials when the the 160-day period to develop the Supplemental coordination for
Secretary requests such information decision record in § 930.130. Two proposed activities. The changes to
after a determination that the changes were made from the proposed these sections were not in the proposed
information is needed pursuant to rule. In paragraph (c), NOAA deleted rule. However, these changes address
the objectives and proposed changes in Comment 2. We find many of the address ‘‘limited and specific
the proposed rule to improve the clarity changes to be worthwhile both in terms procedural changes or guidance’’ as
of the consistency process related to of clarity and streamlining the called for in the ANPR and as needed
commencement of the States’ review consistency process. In particular we to clarify offshore energy activity and
periods and changes to information note that many of the proposed changes siting information needs and deadlines.
needs. This change recognizes the fact are intended to speed the appeals There is a danger, if not likelihood, that
that if a State concurs or concurrence is process; we recognize the need, for all resorting to regulatory changes to
presumed, the concurrence is valid only parties involved, for an efficient and ‘‘solve’’ perceived problems or to
for the activities and effects described predictable process. We support ‘‘clarify’’ well established language from
by the Federal agency, applicant or NOAA’s rule modification and guidance current regulations will result in
applicant agency submitted to the State to develop an expedited appeals process creating unforeseen conflicts, confusion,
during the State’s review. This change that is fair and equitable both to States and possibly increase litigation. Ad hoc
addresses the problem posed by a State and to applicants. regulatory changes should be avoided
concurrence for a project which was NOAA Response to Comments 1 and and more resources should be dedicated
substantially changed during the State’s 2. NOAA notes these comments. to developing memoranda of
review period, but the State was not Comment 3. The proposed changes understanding with the States, working
privy to the change, the change would are inconsistent with, and fail to with States and assisting agencies and
have coastal effects and the State has implement, the CZMA and would applicants with understanding their
enforceable policies applicable to the substantially weaken the States’ abilities consistency responsibilities.
change or its effects. The rule also to safeguard their coastal resources. For Comment 5. For many years, this
reflects the importance of ensuring that example, the proposed changes would: legislative delegation has fought off
the State is provided with timely notice —Make it more difficult for a State to numerous attempts by government and
of project changes and related obtain the information it needs to private industry groups whose planned
information during the States review evaluate a proposed plan, and impose actions would have caused detrimental
periods. This rule change does not unrealistic deadlines for State review; effects to the water quality of the
apply to subpart E because amended —Reduce the weight given to a State’s Atlantic Ocean, the ocean floor, the air
OCS plans are already covered under opinion on the application of above and our shoreline. New Jersey’s
§ 930.82. consistency to a federal action; tourism industry, as well as our overall
—Potentially exempt major proposals environment, would suffer greatly if the
V. Comments Received by NOAA on the from State review, such as offshore oil Federal Government would allow the oil
Proposed Rule and gas development, even though the and gas industries to explore our ocean
NOAA received 3066 comments on projects may impact the coastal zone of waters. We share the Federal
the proposed rule from the House of the affected State; Government’s desire for this great
Representatives, the Senate, States, the —Virtually eliminate States from the nation to be less dependent on foreign
Energy Industry, Environmental Groups, process of considering appeals from oil, but not at the high price of ocean
Federal agencies, and the public. Most States’ objections to CZMA approvals; and coastal water quality. We strongly
comments strongly oppose any changes and urge NOAA to withdraw the proposed
to NOAA’s rules. NOAA appreciates —Overturn recent Federal court changes that would expedite the
these comments and understands, and decisions upholding States’ authority to issuance of permits to those who would
agrees with, the concern that NOAA not review certain Federal offshore oil ravage our ocean waters and shorelines.
‘‘weaken’’ the federal consistency drilling decisions. Reducing the review time which States
authority as provided in the CZMA and Taken together, these changes would and local governments have to properly
the 2000 rule. However, NOAA believes essentially strip the coastal States of any and thoroughly investigate ocean
that neither the proposed rule nor this meaningful authority to control the drilling applications would certainly
final rule affect a State’s ability to ways in which their coastal areas are send the wrong signal to citizens of the
review federal actions that have coastal used. The proposed changes would turn United States of America, as well as the
effects. In addition, it is NOAA’s view the CZMA into a partnership between entire world, that the USA is a rubber-
that the clarifications and improvements the Federal Government and oil and gas stamp for energy interests, not for its
in this final rule do not change the interests, to the detriment of coastal citizens nor its natural beauty.
agency’s long-standing interpretation of States. The proposed rule is a clear NOAA Response to Comments 3, 4
the CZMA. NOAA carefully reviewed attempt to short-circuit procedures and 5. NOAA concludes that the
each comment in developing this final designed to ensure State participation in changes in the final rule do not, in any
rule. Below are NOAA’s responses to decision-making. The rule changes will way, change the authority granted to
comments on the proposed rule. strip States of an equal voice in States to review Federal actions
Comments 1–19 are general comments decisions that could have significant affecting the coastal zone. Neither do
on the proposed rule. Comments 20–113 adverse effects on local coastal the changes short-circuit procedures,
are comments on specific sections of communities and coastal resources. The reduce the State review period or
NOAA’s consistency regulations. A list proposed rules will, if enacted, do otherwise diminish the ability of States,
of commenters by comment will be irreparable harm to this Federal-State or other interested parties, from
posted on OCRM’s Federal Consistency partnership so effectively implemented participating in the Federal consistency
Web site: http:// during the past three decades. process as provided for in NOAA’s 2000
coastalmanagement.noaa.gov/czm/ Therefore, we strongly urge you to rule and the Energy Policy Act. The
federal_consistency.html. withdraw the proposed rule changes. CZMA State-Federal partnership is
Comment 4. There is no demonstrated strengthened by bringing greater clarity,
General Comments
need for these rule changes particularly transparency and predictability to

Comment 1. Overall, we feel that the when comprehensive consistency rule NOAA’s CZMA regulations.
proposed changes will go far to clarify changes were approved just over two In drafting the proposed rule and in
the confusion which exists in the years ago. To the extent that changes are issuing this final rule NOAA has
current regulations. made, they must be targeted only to carefully sought to avoid upsetting the
long-standing, basic tenets of Federal planning of a Federal agency activity. geographic area of review. The right of
consistency. State CZMA review Early coordination and identification of such review, if ever justified by actual
authority is, and has always been, applicable State CMP enforceable ‘‘effects,’’ should be confined instead to
centered on a Federal agency activity or policies should help determine what a case-by-case consideration under the
Federal license or permit activity having measures, if any, need to be taken so procedures provided in 15 CFR 930.54
coastal effects. The rule changes that the activity is consistent with the (review of unlisted activities). We urge
steadfastly retain this ‘‘effects test’’; State policies. If a Federal law provides NOAA and MMS to implement an MOA
continues to emphasize early little discretion to modify a Federal process whereby objective criteria can
coordination between Federal agencies, agency activity, then the Federal agency be employed to determine what are
applicants and States; maintains the should be better able to demonstrate ‘‘reasonably foreseeable effects.’’
time frames for State review; further that it is consistent to the maximum NOAA Response to Comment 10.
emphasizes the ability of States to extent practicable. NOAA continues to believe that a
define information needs specific to Comment 8. We concur with NOAA’s regulatory change is not needed to
their State; does not exempt any Federal changes and explanations for § 930.31(a) address State review of OCS plans
action from the ‘‘effects test’’; does not (Federal agency activity); § 930.35(d) located far offshore. As discussed in the
significantly alter the States’ ability to general negative determination); proposed rule, such conflicts are
participate in appeals to State § 930.51(a) (Federal license or permit); isolated examples and can be dealt with
objections; and is fully consistent with § 930.58(a)(1) (Necessary data and on a case-by-case basis should an issue
recent Federal court decisions. information); and subpart H (Appeals to arise. A new regulatory process to
While NOAA completed a the Secretary). determine when an OCS plan will have
comprehensive rulemaking in 2000, NOAA Response to Comment 8. reasonably foreseeable coastal effects on
NOAA determined that some targeted NOAA notes this comment. a particular State would likely increase
improvements could be made based on Comment 9. NOAA should clarify its administrative and fact-finding burdens
the Energy Report and comments response to General Comment 3 in the on industry, the States and Federal
received on the ANPR questions. Some proposed rule regarding Virginia’s agencies. Finally, the case-by-case
of the improvements addressing these statement describing information needs nature of Federal consistency review
issues, while initiated to respond to related to Virginia’s Chesapeake Bay precludes rigid definitions of effects and
energy matters, will improve the Preservation Act Program. what is reasonably foreseeable. 65 FR
consistency process in general, while NOAA Response to Comment 9. In the 77130, 2d col. (Dec. 8, 2000).
other changes affect only the OCS proposed rule NOAA informed the State The determination of coastal effects
subpart of the regulations. that for Federal license or permit for Federal license or permit activities is
Comment 6. CZMA section 307(c) has activities under 15 CFR part 930, made by NOAA through the listing and
evolved into a program that, in many subpart D, the State could amend its geographical location description
States, is used to ‘‘regulate’’ Federal program to require that the detailed requirements in NOAA’s regulations at
activities through the consistency maps and delineation of Chesapeake 15 CFR 930.53. Each State must list the
review process. Bay Preservation Areas on non-Federal Federal license or permit activities it
NOAA Response to Comment 6. The lands be included as ‘‘necessary data believes will affect its coastal uses or
CZMA does not authorize States to and information,’’ pursuant to 15 CFR resources. The list becomes part of the
regulate Federal agency activities. States 930.58(a)(2). NOAA emphasizes that State’s management program
may review Federal agency activities this is only for Federal license or permit development and may be revised
with reasonably foreseeable coastal activities and does not apply to required through NOAA’s program change
effects and concur with or object to an information for Federal agency procedures. See 15 CFR 930.53(c), and
activity, but the CZMA does not give the activities. Thus, a Federal agency could 15 CFR part 923, subpart H. When
States any regulatory or enforcement not be required to provide this listing Federal license or permit
authority over Federal agencies. information to Virginia for a Federal activities, States must demonstrate
Comment 7. NOAA has made some agency activity. For Federal agency whether the activity to be listed would
progress in clarifying the ambiguities of activities, a Federal agency is only have reasonably foreseeable coastal
the 2000 final rule. However, because of required to provide the information effects, when conducted inside the
the great degree of latitude given States described in 15 CFR 930.39, necessary coastal zone. Once listed in the State’s
in interpreting what are reasonable and to support its consistency federally approved program, all
practicable information needs, Corps determination. Since the CZMA does applications for the listed Federal
project managers are having difficulty not grant States authority to regulate authorizations in the coastal zone are
meeting navigation project maintenance activities on Federal lands, there would automatically subject to the consistency
schedules established by the Congress be no Chesapeake Bay Preservation process.
through the budget process, while Areas to delineate on Federal lands States interested in reviewing
complying with coastal zone located within Virginia. activities located outside the coastal
management programs. The Comment 10—Geographical zone must provide to NOAA for
fundamental question for Corps Considerations. The rule does not make approval a description of the geographic
operations and maintenance activities any revisions regarding the location outside its coastal zone where
becomes one of how, rather than identification of offshore projects having activities will be presumed to have
whether, the project can be reasonably foreseeable coastal effects. coastal effects. Federal agencies and
accomplished. Often, Federal agencies Considering NOAA’s repeated other interested parties may comment to
have little discretion to modify projects observations that State reviews of OCS NOAA during the approval process.
re-authorized by the Congress through projects at distances far from a State’s NOAA’s approval is based on whether
the annual budget process. coastline would entail ‘‘case-by-case’’ effects on the coastal zone from the
NOAA Response to Comment 7. The consideration, API believes it would be described geographic area are
comment demonstrates the need for inappropriate for NOAA to ever allow a reasonably foreseeable.
Federal agencies and States to State to amend its program to A State may also review a listed
coordinate as early as possible in the automatically include such a general activity located outside the coastal zone
that is not in a described geographic ‘‘technical amendments’’ were to to override based on the State’s ‘‘lack of
location as an ‘‘unlisted’’ activity on a conform all of CZMA section 307 with information’’ contentions. This
case-by-case basis, pursuant to 15 CFR the changes made to CZMA § 307(c)(1). experience seems to belie NOAA’s
930.54. NOAA’s approval is required Moreover, ‘‘direct’’ effects were not a insistence found elsewhere in its June
and is based on whether coastal effects limiting factor to the pre-1990 CZMA 11th notice that the Secretary has given,
of the proposed activity are reasonably application of Federal consistency for and will continue to give, particular
foreseeable. Federal license or permit activities—the deference to comments from agencies
The purpose of these listing ‘‘effects test’’ was always the controlling with expertise over the activities which
requirements is to provide predictable factor. The Conference Report contains are the subject of the override appeals.
procedures to determine when a Federal authority for NOAA’s position, which is NOAA Response to Comment 13.
license or permit activity is subject to also supported by the discussion in the NOAA maintains that, at this time, it
CZMA Federal consistency review. September 26, 1990, Congressional cannot foresee a case where OCS oil and
These procedures have been in place Record, incorporated by reference into gas activities do not further the national
since 1979 and provide reasonable the Conference Report. interest in a significant or substantial
notice to Federal agencies and Comment 12—Geographical manner. NOAA cannot, however, say
applicants for Federal authorizations as Considerations. Earlier comments to the that this will always be the case or will
to when and how Federal consistency ANPR also questioned NOAA’s be the case in any particular situation.
applies. revisions to the definition of a ‘‘coastal NOAA can only speak, as a general
The geographic location description use or resource’’ within 15 CFR 930.11. matter and to the foreseeable future. As
requirement for Federal license or NOAA has taken no specific action to for the Manteo decision, all Secretarial
permit activities has not been used for remedy this overbroad definition and in appeal decisions are made on a case-by-
Federal authorizations described in the proposal does not acknowledge that case basis and rely on the record
detail in OCS plans when coastal effects adding terms such as ‘‘scenic and developed for that case. NOAA does not
are reasonably foreseeable because these aesthetic enjoyment’’ broadens this anticipate that the Secretary will
activities are specifically described in definition, and thereby inappropriately reexamine the Manteo decision. Further,
the CZMA. 16 U.S.C. 1456(c)(3)(B). In expands the reach of the effects test. as discussed in response to comment
the past, most OCS oil and gas plans NOAA Response to Comment 12. The 100, the Secretary gives the expert
were for projects located near shore and definition of coastal use or resource did Federal agency’s view more weight in
coastal effects were readily identifiable. not create new thresholds, but is based the areas of its technical expertise than
Now, however, technology allows oil on the effects test as described in the the views of other commenting Federal
and gas projects to be located far CZMA and the Conference Report for agencies. NOAA reiterates that each
offshore and the connection between a the CZMA 1990 amendments. See 65 FR Secretarial decision is based on its
project and its effects on a State’s 77123–77133 (Dec. 8, 2000). individual decision record and evidence
coastal uses or resources is less certain. Comment 13—Secretarial Appeal in that record may controvert an agency
In cases where a person demonstrates Criteria and Past Secretarial Appeal opinion.
that its project will not have coastal Decisions. In the June 11th notice, Comment 14. API supports NOAA’s
effects and the State disagrees, then the NOAA comments that the term acknowledgment of its responsibility
question of whether the ‘‘effects test’’ is ‘‘development’’ was used as a ‘‘general under the President’s National Energy
met can be resolved through the descriptor for OCS oil and gas Policy (NEP) to promote coordination
mediation provisions of the CZMA, activities’’, and further, that: ‘‘[a]t this between NOAA and MMS in OCS
OCSLA provisions and/or litigation. Of time, NOAA cannot foresee a case energy development. We believe,
course, this does not preclude the where OCS oil and gas activities do not however, that the agency should more
ability of a State to seek NOAA approval further the national interest in a fully implement the requirement that
to describe an offshore area for OCS significant or substantial manner, the Departments of the Interior and
plans under § 930.53, or request to inclusive of the exploration, Commerce work together to solve
review a project as an unlisted activity development and production phases.’’ interagency conflicts and develop
under § 930.54. While NOAA’s comment is a positive mechanisms to address differences in
Comment 11—Geographical statement, its position is still modified the OCSLA and the CZMA. API
Considerations. The rule overlooks the by the critical words ‘‘[a]t this time,’’ reiterates that any revisions to the
distinction made in the legislative and remains in marked conflict with the Federal consistency process should
history of the 1990 amendments precedential finding in the Manteo incorporate a permanent mechanism for
between Congress’s focus on the Secretarial override decisions that an close consultation and coordination
reversal of the California v. Watt OCS exploration plan targeting a between NOAA and MMS such as a
decision and the expansion of State potential natural gas reserve of 5 trillion formal Memorandum of Agreement
review of Federal agency activity to cubic feet—which would constitute the (MOA). The MOA could outline the
include lease sales, and the largest find of domestic hydrocarbons respective responsibilities of the two
corresponding recognition by Congress since Prudhoe Bay—would make only a agencies, institute procedures for
that there would be no change in the ‘‘minimal’’ contribution to the national ensuring decisions consistent with
status quo for State review of private interest. Because this inconsistency national energy policy and explain how
permitting activity. We continue to take cannot be reconciled, the particular each agency would meet the objectives
issue with NOAA’s reading of the Manteo findings should be formally of the NEP and Executive Order 13211,
Congressional history of the 1990 rescinded by the Secretary of Commerce on streamlining energy project
amendments and Congress’s various in order to conform to NOAA’s current permitting, (Actions Concerning
‘‘endorsements’’ of NOAA’s consistency articulation of CZMA national policy. Regulations that Significantly Affect
policies at that time. Although Interior officials were quoted Energy Supply, Distribution, or Use,
NOAA Response to Comment 11. as describing the Manteo EP as the most May 18, 2001), and Executive Order
NOAA disagrees. The 1990 CZMA comprehensive exploration plan 13212 stressing the importance of
amendments apply to all the prepared in the history of the U.S. assessing impacts of government
consistency requirements. The offshore program, the Secretary refused decisions on energy supplies (Actions to
Expedite Energy-Related Projects, May and West coasts—where, indeed, quite without disclosing such documents will
18, 2001). heated consistency battles have be in violation of the Federal
NOAA Response to Comment 14. As occurred in the past. Certainly, there are Administrative Procedure Act (5 U.S.C.
described earlier, this rulemaking is no ‘‘flourishing’’ OCS operations along 551 et seq.).
designed to address the CZMA coastal North Carolina, Florida, NOAA Response to Comment 16.
recommendations in the Energy Report. California, or New England. NOAA’s rulemaking implements the
Specifically, that report directed the NOAA Response to Comment 15. The recommendations stated in the publicly
Secretaries of Commerce and Interior to CZMA requires States to consider the available Energy Report (http://
‘‘re-examine the current Federal legal national interest when developing their www.whitehouse.gov/energy/
and policy regime (statutes, regulations, management programs. When approving index.html). The rulemaking is not
and Executive Orders) to determine if State programs and when evaluating based on any particular information
changes are needed regarding energy- proposed changes to State programs underlying the Energy Report. NOAA
related activities and the siting of energy NOAA carefully considers elements of has developed its own administrative
facilities in the coastal zone and on the management program that may affect record to support this rulemaking. That
Outer Continental Shelf (OCS).’’ Energy the national interest, particularly in record includes the ANPR, which asked
Report at 5–7. This rulemaking similarly energy facility siting. There is a large what changes, if any, should be made in
implements Executive Order 13212, offshore oil and gas presence in the response to the Energy Report
which mandates that ‘‘agencies shall Gulf, and thus, statistics from MMS are recommendations. In addition, the
expedite their review of permits or take undoubtedly representative of the OCS proposed rule sought public comment
other actions as necessary to accelerate activities in the Gulf. However, OCS EPs on NOAA’s proposed changes. This
the completion of such projects, while and DPPs have been regularly approved final rule is based on public comments
maintaining safety, public health, and off Alaska and California as well. Even to the proposed rule and NOAA’s
environmental protections.’’ NOAA is after the Supreme Court’s decision in analysis of its administrative record.
also coordinating with the President’s 1984 that OCS lease sales were not Comment 17. The preamble to the
Council on Environmental Quality on subject to Federal consistency review, proposed rule says that in certain
implementation of this Executive Order. California found that most of the 150 or instances, OCS oil and gas lease sales
Executive Order 13211 requires that so wells associated with the Court’s may not affect the coastal zone, thereby
agencies prepare and submit a decision were consistent with the suggesting that there will be a case-by-
Statement of Energy Effects to the State’s CMP. In addition, in the limited case review of whether lease sales
President’s Office of Management and instances where a State has raised a require a consistency analysis. The
Budget for certain actions, and NOAA CZMA objection, the Secretarial appeals County’s position is that, given the
continues to comply with this process provided an appropriate impacts eventually caused by the
requirement when applicable. (Please remedy. Thus, the CZMA does support development that follows lease sales, it
see the Classification section, below.) the national energy policy. Moratoria will always be reasonably foreseeable
Neither executive order has created a that currently preclude OCS oil and gas that such lease sales will adversely
need for a separate MOU with Interior exploration in offshore areas are the affect the coastal zone in a manner that
or with other Federal agencies. An MOU result of Executive Orders or will require a consistency review. The
is not necessary between MMS and congressional enactments, and do not development implications of lease sales
NOAA on CZMA-OCSLA interaction, as result from the CZMA. are far too great to ever support a
the agencies have already established an Comment 16. Rule changes should not finding that they would have no adverse
interagency working group and policy be based on unseen information. The impact on the coastal zone.
decision group to facilitate interagency preamble states that the proposed rule NOAA Response to Comment 17. All
coordination concerning the CZMA and will implement recommendations of the Federal agency activities are subject to
OCSLA. NOAA will maintain this Energy Report prepared by the National the effects test. The CZMA does not
effective arrangement. Energy Policy Development Group that obligate MMS to automatically provide
Comment 15. We question NOAA’s was established by Vice President States with a consistency determination
characterizations in its June 11th notice Cheney. The process that led to the for all OCS lease sales, but, rather,
of the widespread success of the CZMA preparation of the Energy Report often requires that MMS determine whether a
consistency process in the review of was not a public process and, indeed, particular lease sale will have
OCS activity. NOAA’s statements do not the United States Department of Energy reasonably foreseeable coastal effects. If
make clear that the scope of offshore still refuses to release many of the MMS determines coastal effects are
activity since 1990—and for that matter documents that were created for and reasonably foreseeable, it must provide
since the mid-1980s—has been severely considered by the Task Force. If the the affected State(s) with a consistency
curtailed. Indeed, the ‘‘offshore recommendations of the Energy Report determination.
statistics’’ promoted by NOAA have are to be the basis for the rule Comment 18. In Skokomish Indian
been overwhelmingly generated by amendments, then all documents and Tribe v. Fitzsimmons, 97 Wn. App. 84,
activities mainly occurring offshore records relevant to the Energy Report’s 982 P.2d 1179 (1999), the Washington
Texas, Louisiana, Mississippi, and preparation and recommendations must Court of Appeals invalidated the
Alabama—four States with combined be made available to the public as part Department of Ecology’s ‘‘waiver’’ of its
coastlines barely exceeding seven per of the public docket for this rulemaking right to object to the City of Tacoma’s
cent of the length of the entire coastal action and the comment period must be consistency certification, while
shoreline of the continental United extended to afford members of the simultaneously objecting to the adverse
States. It cannot be accurately public an opportunity to review and coastal effects of Tacoma’s proposed
represented that the CZMA consistency comment on this information and hydroelectric license for the Cushman
review process for OCS activity serves evidence. The County is particularly Dam project. The court held that a State
the national interest unless and until interested in any documents that detail CMZA agency illegally ‘‘renders
that process is realistically employed the need for the changes to the NOAA meaningless’’ the federal and State
and tested against offshore activities regulations that are now being CZMA regulatory schemes, when it
proposed to be conducted off of the East proposed. For NOAA to proceed ‘‘choose[s] not to follow procedures
prescribed by law to ensure’’ that cannot be developed to challenge its view or seek to mediate an
federally licensed projects comply with ‘‘illegal State maneuvers.’’ If there is a agreement.
State CZMA laws. Id. at 95. The CZMA procedural issue, any party can
Section 930.4—Conditional
Washington Supreme Court raise the issue to NOAA and NOAA may
Concurrences
unanimously denied Ecology’s petition offer its views on the CZMA and its
for review. 143 Wn.2d 1018 (2000). implementing regulations. See 15 CFR Comment 21. The proposed rules do
NOAA’s proposed rule must incorporate 930.3. The CZMA does not grant NOAA not address the States’ use of
this principle, which (1) is fully enforcement authority to override a conditional concurrences. We would
consistent with the CZMA, and (2) State’s decision during the six-month like OCRM to clarify in the regulations
carries out NOAA’s desired effect in its review period. NOAA can require the that conditional concurrences are
rule change of providing greater State to take corrective actions as part of simply not contemplated under the
‘‘transparency and predictability’’ to the the CZMA section 312 evaluation CZMA.
federal consistency regulations. First, process and/or the Secretary can NOAA Response to Comment 21.
NOAA should amend its rules to clarify override a State’s objection on NOAA determined in the 2000 rule that
that State agencies must either clearly procedural grounds if a State’s objection conditional concurrences were
concur (through express statement or by is appealed to the Secretary. allowable under the CZMA within
complete silence) or object to certain parameters. NOAA’s regulation,
consistency certifications. Second, the Section Specific Comments § 930.4, contains adequate standards to
rules must clarify that State CMZA ensure State conditions are based on
Section 930.3—Review of the specific enforceable policies. If the
agencies cannot expressly waive their Implementation of the Federal
CZMA rights if they have previously requirements for a conditional
Consistency Requirement concurrence are not met within the six-
raised objections regarding coastal
impacts that the proposed license does Comment 20. We continue to propose month review period, then the State
not address. Third, the rules must that NOAA should undertake a more decision is automatically treated as an
expressly acknowledge NOAA’s and the active review of State programs than the objection. For instance, if an applicant
federal licensing agency’s respective current three-year rotation undertaken does not agree with a condition and
duties to actively inquire into the pursuant to 15 CFR 930.3, and does not amend its application to the
legality of a State CZMA concurrence or specifically suggest that such review Federal agency, then the State decision
objection that circumvents or should be conducted on a semi-annual is automatically an objection. Likewise,
contradicts the CZMA’s goals and basis. NOAA asserts that it does not if a Federal agency finds a condition is
procedures, before the six month review the validity of the State’s contrary to its statutory mandate and
window closes. Fourth, the rules must underlying objection in a consistency refuses to accept the condition, then the
provide an appeal and/or mediation appeal, but rather in a State program State decision is automatically an
mechanism for the licensing agency, objection. The benefit is that it allows a
review. NOAA’s ‘‘de novo’’ approach to
NOAA, and the participating public to State to concur when it might otherwise
appeals does not include a review of the
challenge illegal State maneuvers. object. If the conditions are acceptable
underlying State’s objection should be
Comment 19. NOAA should adopt to the applicant and the Federal agency,
reevaluated in light of NOAA’s
regulations to provide a mechanism for then the Federal agency can approve the
statements regarding resource
applicants to invoke NOAA’s project. All elements of the conditional
constraints NOAA says it faces in
intervention and effective oversight concurrence process must be completed
conducting section 312 program
during consistency review if a State prior to the expiration of the State
reviews. An important oversight
attempts to request information beyond agency’s review period. If each element
function of the statutory scheme is not
what is specified in NOAA and MMS in the conditional concurrence process
being effectuated, if the State’s manner is not complete prior to the expiration
requirements. of carrying out their consistency
NOAA Response to Comments 18 and of the State’s review period, the
responsibilities is not undergoing conditional concurrence becomes an
19. A rule change is not needed to
thorough review under section 312, as objection automatically. NOAA’s
address this issue as the current rules
well as not reviewed as part of the regulations, section 930.4(a)(1–3), set
provide sufficient guidance. NOAA
consistency appeal process. forth each element necessary to make
agrees that States cannot expressly
waive their consistency responsibilities. NOAA Response to Comment 20. As the conditional concurrence effective.
The State has an obligation to enforce its discussed in the proposed rule, the First, the State agency must state in its
federally-approved CMP and to provide CZMA section 312 evaluation process is concurrence letter each of the
public input into those decisions. The the primary means for NOAA to review conditions to be met and identify and
preamble to the 2000 final rule State programs. When conducting these explain how and why each condition is
discussed at length the requirement that reviews, NOAA, among other things, necessary to satisfy the enforceable
States implement their programs and to evaluates the State’s use of federal policies of the State’s CMP. Second, the
conduct federal consistency reviews. consistency. As for the Secretarial Federal agency (subpart C) or applicant
See 65 FR 77126–77127 (Dec. 8, 2000). appeals, the CZMA specifically sets out (subpart D, E, F or I) must change or
Likewise the 2000 rule discussed the the criteria for override. In addition, the modify its proposed activity,
need for States to either concur with or Secretary reviews State procedural application or plan to incorporate and
object to a proposed activity for which compliance as an aspect of the appeal satisfy the conditions set forth in the
a State received a consistency process, e.g., did the State meet the concurrence letter. Third, the Federal
certification (or concur with conditions statutory and regulatory time frames. agency (subparts D, E, F or I) must
pursuant to § 930.4). Additional oversight can be, and often approve the amended application or
NOAA and the authorizing Federal is, provided on a day-to-day basis when amend its approval to include the
agency do not, however, have the a Federal agency, State or applicant conditions set forth in the concurrence
authority to dictate to a State its bring a specific consistency issue to the letter. If these three elements are not
interpretation of its own State law. attention of NOAA. NOAA may then satisfied within the State agency’s
Thus, a new CZMA appeal process investigate the matter and either provide review period, the State’s conditional
concurrence letter automatically defined terms in the regulations and following ‘‘The Federal agency activity
becomes an objection and the State’s should pose no confusion. NOAA for purposes of 15 CFR 930.31 is the
concurrence is not presumed pursuant believes that in this particular section proposal to build the pier.’’ (add):
to CZMA section 307(c). Thus there is using the more specific terms as ‘‘Until this activity is sufficiently
no delay in the six month review period opposed to the general ‘‘federal action’’ concrete to require analysis under the
and there is clear direction regarding term is more appropriate. National Environmental Policy Act, it is
time frames, the substance of the not subject to a consistency
Section 930.31(a)—Federal Agency
conditions and whether the State has determination.’’
Activity NOAA Response to Comment 24.
objected or concurred.
If a State agency issues a conditional Comment 23. This section is all- Plans have always been included in the
concurrence under subpart D, but there inclusive and could mean ‘‘any’’ Federal definition of Federal agency activity.
is no response from the applicant and/ agency activity. We do not believe the The retention of plans as a Federal
or the authorizing Federal agency Congress intended for routine agency activity does not add ambiguity
within the six-month review period, maintenance or other non-consequential and the revisions to this section make
then the State’s conditional concurrence activities to be subject to State the application of consistency to plans
automatically becomes an objection. If a consistency review. The language as more clear. As described above in the
State agency issues an objection within proposed could give States authority to explanation for the changes to this
the six-month review period, then determine colors of paint for section, some federal plans will be used
subsequently issues a conditional Government buildings or where to initiate a proposal for action and
concurrence, the State’s original Government employees might park on some federal plans will be part of the
objection remains in effect and the government property, for example. At Federal agency’s pre-decisional
Federal agency cannot issue its subsection 930.51 of the proposed rule deliberations and not be subject to
authorization unless the objection is OCRM defined certain categories of federal consistency. NOAA cannot add
withdrawn by the State agency (or the federal license and permit activities that the suggested sentence to the preamble
Secretary, on appeal by the applicant, do not meet the test for requiring since the application of NEPA is not
overrides the State’s objection). A consistency determinations. Similar necessarily a trigger for federal
conditional concurrence letter issued language should be included in this consistency. However, NOAA has added
subsequent to an objection letter after proposed subsection as well. the following two sentences to the Navy
the six-month review period has expired NOAA Response to Comment 23. This example in the explanation for rule
has no effect upon the objection. final rule does not identify categories of change 4: ‘‘Under 15 CFR 930.36(b), the
For purposes of an appeal to the federal license or permit activities that Federal agency determines when it has
Secretary pursuant to CZMA section are exempt from consistency. NOAA sufficient information to provide the
307(c)(3), an applicant’s time to file a emphasizes, again, that the effects test is State with a consistency determination.
notice of appeal (or person’s under the determinative factor. Congress For instance, in this example of the
subpart E or applicant agency’s under clearly intended for ‘‘Federal agency Navy pier, the Navy could conclude that
subpart F) begins under one of the activities’’ to be interpreted broadly. under Navy procedures the pier is not
following three scenarios: (1) 30 days NOAA did clarify in the proposed rule a proposed action until the proposed
after receipt of the State agency’s and in this final rule that a Federal activity requires analysis under NEPA.’’
conditional concurrence if the applicant agency activity is a proposal for action Comment 25. The proposed changes
does not agree with the conditions; (2) that has coastal effects. This is would narrow the definition of federal
30 days after receiving notice from the discussed in detail above. This activities. The addition of the phrase
Federal agency that the application for clarification is not a new standard, but ‘‘makes a proposal for action’’ is
the approval as amended to meet the emphasizes long-standing agency troublesome since it could reduce the
State agency’s conditions is not interpretation. type of federal activity which may be
approved; or (3) 30 days after the end of Comment 24. The proposed section’s subject to review for consistency. In the
the State’s six-month review period if recitation of a ‘‘plan’’ as an example of preamble, NOAA explains that the
neither the applicant nor the Federal an action requiring a consistency change is intended to eliminate review
agency respond to the conditional analysis would introduce considerable of pre-decisional activities such as
concurrence within the six-month ambiguity into the interpretation of the planning documents. However, the
review period. regulations. A ‘‘plan’’ can be many explanation goes on to mischaracterize
things to many people, as can something the recent Ninth Circuit Court of
Section 930.11(g)—Definitions—Effect that ‘‘direct[s] Federal agency action.’’ Appeals decision, State of California v.
on Any Coastal Use or Resource As a practical matter, any proposal Norton, 311 F.3d 1162 (9th Cir. 2002),
Comment 22. We believe that the would have to have a certain degree of in which the Court embraced a broad
proposed change is unusually specificity in order for a meaningful definition of federal activities subject to
complicated and therefore oppose it. We coastal consistency analysis to be federal consistency review. The change
suggest that because OCRM proposes to undertaken at all. The revised rule’s appears to be a thinly veiled attempt to
move the definition of ‘‘federal action’’ proposed language of ‘‘proposal for eliminate review of certain activities,
to § 930.1(b), the use in § 930.11(g) of action which initiates an activity or such as lease suspensions, in direct
the previously defined term ‘‘federal series of activities * * *’’ adequately contravention of the Ninth Circuit’s
action’’ would be sufficient. As drafted, captures those plans that would be ripe decision. NOAA characterizes such
the language is confusing because it for analysis. Accordingly, the planning federal activities as interim or
appears to use two distinct phrases, i.e. example should be stricken from the preliminary and thus not rising to the
‘‘federal action’’ and ‘‘Federal agency rule as revised. If NOAA believes it is level of a federal activity for purposes of
activity or federal license or permit necessary to retain the current language consistency review. The Ninth Circuit
activity’’ to refer to the same thing. in the rule, the following statement expressly rejected the argument that
NOAA Response to Comment 22. should be added to the preamble lease suspensions do not grant new
Federal agency activity and federal discussion of the Navy pier project on rights or authority and are merely
license or permit activity are well- page 34855 of the Federal Register, ministerial. The Court held that the
lease suspensions are discretionary and (1984), is that lease suspensions are not suspensions at issue in California v.
their approval involves the exercise of subsidiary to exploration plans and Norton are subject to consistency
judgment and implicates policy choices. development and production plans (and review.
Because the decision to extend leases thus are not barred from consistency The heart of the Ninth Circuit’s
through the suspension process is review by CZMA section 307(c)(3)(B)), decision is that lease suspensions
discretionary, it does grant new rights to and that activities with coastal effects cannot be categorically exempt from
the lessees when, absent the preceding exploration plans and CZMA review. Applying the CZMA
suspensions, all rights would have development and production plans are ‘‘effects test,’’ the Ninth Circuit found
terminated. (State of California v. subject to consistency review. In making that the 36 lease suspensions at issue
Norton, supra, at p. 1173, fn. 6.) The this finding, the Ninth Circuit stated: had coastal effects. It is NOAA’s view
proposed change is also contrary to In subjecting lease sales to consistency that the Ninth Circuit’s coastal effects
Congress’s express statement in the review, Congress has made it clear that the determination is limited to the 36 leases
1990 amendments in which Congress statute [CZMA] does not prohibit consistency in that case. NOAA believes that in all
unequivocally stated its intent to adopt review of federal agency activities that are other foreseeable instances, lease
a broad interpretation of federal activity not subsidiary to exploration and suspensions would not be subject to
subject to consistency review. NOAA development and production plans. The federal consistency review since (1) they
should not undermine Congressional exploration and development and production do not generally authorize activities
plan stages are not the only opportunities for
intent by adopting a crabbed with coastal effects, and (2) if lease
review afforded to States under the statutory
interpretation of Federal agency activity. scheme. suspensions did result in activities with
Comment 26. NOAA is not required to coastal effects, they should be addressed
adopt a decision of the Ninth Circuit Referring to the fact-specific inquiry in a State’s consistency review of the
(California v. Norton) and extend such necessary to determine whether a lease sale, EP or DPP.
decision nationwide. federal action has coastal effects and, Comment 27. In its earlier ANPR
NOAA Response to Comments 25 and thus, is subject to federal consistency comments, API pointed out that
26. On June 20, 2001, the U.S. District review, the Ninth Circuit, quoting from NOAA’s previous remarks treating MMS
Court for Northern California ordered the preamble to NOAA’s 2000 rule, activities such as five-year leasing plans
Interior to provide California with a agreed ‘‘with the reasoning of the as potential ‘‘Federal agency actions
consistency determination pursuant to National Oceanic and Atmospheric subject to consistency review’’ were not
CZMA section 307(c)(1) for the lease Administration that a lease suspension only inconsistent with CZMA legislative
suspensions it issued for 36 leases or set of lease suspensions might ‘‘affect history, but also an incorrect application
located offshore California. California ex the uses or resources of the State’s of the definition of ‘‘Federal agency
rel. Cal. Coastal Comm’n v. Norton, 150 coastal zone, and thus CZMA bars activity.’’ API notes that NOAA has
F. Supp.2d 1046 (N.D. Cal. 2001), aff’d, * * * categorically exempting receded from this position and
311 F.3d 1162 (9th Cir. 2002). The Court suspensions from consistency [review.]’’ acknowledges that MMS pre-leasing
also ordered Interior to provide, As described above in the explanation activity is typically more in the nature
pursuant to NEPA, a reasoned of the changes to § 930.31(a), and of preliminary or interim agency action
explanation for its reliance on a elsewhere in this preamble, NOAA has not considered to have reasonably
categorical exemption for the lease not altered the consistency effects test foreseeable coastal effects. API also
suspensions. On appeal by the United nor has it altered the long-standing notes NOAA’s recognition in its June
States, the Ninth Circuit affirmed the application of federal consistency to 11th notice that application of the
District Court’s finding that the lease Federal agency activities. The revisions ‘‘effects test’’ for purposes of Federal
suspensions, in the case of these 36 to the definition in no way narrow or agency consistency determinations is to
leases, whether granted or directed by limit the types of Federal agency be conducted by that particular Federal
Interior, were Federal agency activities activities subject to review. The changes agency. API supports NOAA’s
under CZMA section 307(c)(1), and not more clearly state the long-standing articulation of consistency review
‘‘federal license or permit activities’’ NOAA interpretation of this section: policy on this issue. API also supports
under CZMA section 307(c)(3)(A). The that consistency applies to proposed NOAA’s deference to an MMS
Ninth Circuit found that the activities and not to what a Federal determination that lease suspensions
suspensions allowed the leases to agency might be thinking about doing. should be considered ‘‘interim
continue for lengthy additional terms Likewise, the change does not eliminate activities’’ having no coastal effects.
and, more importantly, these leases had planning activities from the ‘‘effects NOAA Response to Comment 27.
not been previously reviewed by test.’’ Indeed, the preamble to the NOAA has not ‘‘receded’’ from previous
California under the CZMA. The Court proposed rule and this final rule clearly and long-standing interpretations of
viewed the suspensions as an extension state that some planning activities will Federal agency activity. NOAA’s
of the leases and thus any suspension of be used by Federal agencies to propose preamble to the proposed rule reported
the lease was, in the Court’s view, a an action with coastal effects and at that Interior informed NOAA that the 5-
Federal agency activity under CZMA other times the planning activities will year leasing plan did not propose an
section 307(c)(1). The Ninth Circuit not, but will be part of an agency’s action which would have reasonably
further found that the lease suspensions deliberative process to determine foreseeable coastal effects. This is
at issue would have coastal effects whether it will propose an activity. The consistent with the long-standing
since, among other things, the definition of Federal agency activity definition of Federal agency activity that
suspensions required lessees to engage articulated by the Ninth Circuit is not the Federal agency determines whether
in certain milestone activities which affected by these changes. coastal effects are reasonably
could affect coastal resources. The NOAA’s view and the changes in this foreseeable. Regarding lease
Ninth Circuit also determined that the final rule are consistent with the Ninth suspensions see response to Comments
effect of the 1990 amendments to the Circuit’s decision. NOAA is not 25 and 26.
CZMA in overturning the decision of exempting lease suspensions from Comment 28. Without explanation,
the Supreme Court in Secretary of the consistency review and is not the proposed revision deletes
Interior v. California, 464 U.S. 312 determining whether the lease ‘‘exclusion of uses’’ among listed
examples. We request that you reinstate objective of federal consistency is to State-proposed condition or if other
this example to reflect the full purpose facilitate early State-Federal conditions of the federal permit conflict
and intent of the CZMA. Conflicts coordination. Many of the modifications with or override the State-proposed
between coastal uses can and do result in this final rule are, however, made to condition, this should cause the general
from some Federal agency activities. clarify when consistency must attach. federal permit to be a federal licensing
NOAA Response to Comment 28. If a As pointed out in the comment, MMS’ or permitting action and not a Federal
Federal agency activity proposed an 5-year planning process is mandated by agency activity. With such clarification,
action that would exclude uses of the statute and is an initial exploration into we do not oppose the proposal.
coastal zone, then that activity would whether and where OCS leasing might NOAA Response to Comment 31.
have coastal effects and the Federal occur. As such, the 5-year plan looks at Section 930.4 is clear that State
agency would be required to provide the numerous issues, but, according to conditions of concurrence for a general
affected State with a consistency MMS, does not determine which leases permit must be based on enforceable
determination. NOAA did not delete may actually be offered for bid. MMS is policies and if the conditions are not, to
this example, but more broadly captured the agency conducting the activity and the maximum extent practicable,
the concept (exclusion of uses) and NOAA must continue to rely on MMS’s included in the general permit, then the
other aspects of coastal uses in the determination that the 5-year program State has objected and the general
revised example that says ‘‘a proposed does not propose an action with coastal permit will not be available to an
rulemaking that alters uses of the coastal effects. This is consistent with NOAA’s individual who wants to use the general
zone.’’ statements regarding the 5-year permit until the individual user has
Comment 29. The 5-Year Leasing planning process in the preamble to satisfied the requirements of subpart D.
Program is a poor example and its use NOAA’s 2000 rule. Comment 32. We have concerns about
in this context unreasonably prejudices NOAA’s proposed amendments to
California’s right to seek a Section 930.31(d)—Federal Agency section 930.31(d) to clarify that if a State
determination of consistency. Five-Year Activity objects to a Federal agency’s consistency
Leasing Programs culminate in a formal Comment 30. The primary change determination for a general permit, all
decision pursuant to the OCSLA, as to proposed in this section is to eliminate potential users of that general permit
the location, concentration and timing the Federal option to treat a proposed would thereafter have to furnish
of OCS leasing nationwide that is general permit as a federal license or individual consistency certifications for
believed necessary to meet the nation’s permit, rather than as a Federal agency State review. This procedure counters
energy needs. By law, this decision is activity. It is not clear whether a Federal the fundamental purpose of the general
based upon several factors, explicitly agency has ever availed itself of this permit process. Indeed, NOAA’s
including a determination of coastal option or what advantages it might position conflicts with its own
effects. Each 5-Year Leasing Program is have. The final rule should further recognition of the nature of the federal
accompanied by an Environmental explain the significance of this change. approval involved in an MMS lease sale,
Impact Statement, which assesses In addition, the final rule should clearly whereby MMS can with justification
impacts of different leasing alternatives affirm that when a State issues a proceed to conduct the lease sale even
that affect the distribution and consistency objection to the general in the face of State consistency
concentration of proposed lease sales permits, or other conditions are objections. NOAA has consistently
around the nation. Additionally, each imposed on general permits that require recognized that individual lessees, in
program is subject to a formal public case-by-case review, then the applicant taking their leases from the MMS after
review and comment process that does must obtain the State’s concurrence such a sale is conducted, would not
not meet the narrow exceptions of before relying on the general permit. have to furnish individual consistency
‘‘agency deliberations or internal tasks.’’ NOAA Response to Comment 30. certifications.
Subsequent lease sales provide an NOAA’s explanation of this change is Comment 33. A general permit may
opportunity to address the effects on provided in its explanation for rule have adverse impacts on the coastal
coastal resources from developing only change 5. Summarizing that zone that are only revealed on a case-
those leases involved in the lease sale. explanation, NOAA removed the option by-case review. Therefore, while a State
However, the lease sale is not the to allow Federal agencies to treat their may not find a basis to object to a
earliest time where consultation should general permits as a federal license or general permit, such as an NPDES
commence and it occurs too late to permit activity for purposes of permit, the actual application to a
consider alternative distributions and complying with CZMA § 307 and 15 particular situation involving sensitive
concentrations of leasing to best balance CFR part 930. A State objection to a coastal resources may make a
the nation’s energy needs with consistency determination for the consistency review appropriate and
protection of coastal resources. Those issuance of a general permit alters the necessary. The rule amendments should
alternatives were finalized in the 5-Year form of CZMA compliance required, reflect this possibility.
Leasing Program. Accordingly, Santa transforming the general permit into a Comment 34. Some general permit
Barbara County believes much earlier series of case-by-case CZMA decisions conditions necessitate case-by-case
consultation on issues, which the and requiring an individual who wants reviews to verify that the project meets
federal consistency review process is to use the general permit to submit an the requirements for coverage.
intended to address and resolve through individual consistency certification as NOAA Response to Comments 32, 33
better alternatives, can and should occur an ‘‘applicant’’ in compliance with 15 and 34. The purpose of a general permit
during the 5-Year Leasing Program. The CFR part 930, subpart D. is to develop conditions of use so as to
5-Year Leasing Program does initiate a Comment 31. We suggest that the eliminate individual case-by-case
series of actions with reasonably phrase ‘‘[i]f the State’s conditions are reviews. Thus, if a State concurs with
foreseeable coastal effects. If it did not, not incorporated into the general the general permit (including those
it would not comply with the permit’’ should be clarified. If the conditions of use), then the State is not
requirements of the OCSLA. language used by the Federal agency to allowed to review case-by-case uses of
NOAA Response to Comment 29. incorporate the State-proposed the general permit. As noted in the
NOAA agrees that an important condition varies in any way from the explanation to rule change 5, the general
permits are a hybrid between a Federal provide Federal agencies with complete period is already included in
agency activity and a federal license or discretion as to whether their activities § 930.35(c).
permit activity. Thus, NOAA added this would be consistent with a State’s Comment 37. This provision would
section in the 2000 rule requiring that enforceable policies. Such a change shift the emphasis away from a case-by-
when a State objects to a general permit, would violate the statute and cause case consideration of consistency and
even though the general permit is still ambiguity in the application of the reasonably foreseeable coastal effects to
issued, it is not available for use in that section. deciding what are ‘‘repetitive
State until an individual who wants to A recent Federal court decision has activities.’’ The proposed change
use the general permit provides the addressed NOAA’s definition of effectively creates a consistency
State with a consistency certification ‘‘consistent to the maximum extent exemption for an undefined category of
pursuant to subpart D, and the State practicable.’’ In California Coastal ‘‘repetitive activities.’’ The proposed
concurs or the Secretary overrides a Commission v. Dept. of the Navy, 5 F. rule does not provide adequate
State’s objection to the individual Supp. 2d. 1106 (S.D. Cal. 1998), the parameters to determine what are
consistency certification. There is no Navy argued that it complied to the ‘‘repetitive activities,’’ and how similar
conflict with NOAA’s regulations. A ‘‘maximum extent practicable’’ with in nature the activity must be for
Federal agency could, pursuant to the California’s dredging and disposal agencies to avail themselves of this
consistent to the maximum extent policies because it was obligated to option. There is a concern that issuing
practicable standard, still proceed with follow a modified § 404 permit issued a general negative determination may
issuing a general permit, but individual by the Corps. The court noted that the have the practical effect of minimizing
users could not avail themselves of the federal permit was ‘‘not existing Federal full consideration of ‘‘cumulative
general permit if the State objected, law’’ that would excuse compliance impacts’’ that may be increasingly
until after the requirements of 15 CFR with the State policies and consistency significant for ongoing activities.
part 930, subpart D are met. requirements of the CZMA. Id. at 1111. Several States also raised a concern that
NOAA has modified the proposed Congress partially waived the Federal a general negative determination would
language to clarify that it is an Government’s supremacy over State law effectively limit public notice and
individual intending to conduct an when it created the CZMA. As such, the review of these repetitive activities.
activity pursuant to a general permit only objective means to determine There is strong opposition to the lack of
who would become an ‘‘applicant’’ ‘‘consistent to the maximum extent adequate procedural safeguards in this
pursuant to subpart D and must provide practicable’’ is based on the legal proposed change. Any final rule
the consistency certification to the requirements of Federal agencies and providing for a general negative
objecting State. their administrative records. The 2000 determination must be amended to
rule, in response to requests by Federal provide: (1) A clear definition of what
Section 930.32—Consistent to the
agencies, provided clear guidance as to constitutes ‘‘repetitive activities’’ and a
Maximum Extent Practicable
when a Federal agency can proceed over requirement that Federal agencies
Comment 35. The proposed rule does a State’s objection: Due to an unforeseen closely monitor activities to assure that
not address use of the terms ‘‘consistent circumstance or emergency, or when a there are no cumulative or unforeseen
to the maximum extent practicable’’ and Federal agency asserts, based on its own impacts; (2) In describing in detail the
‘‘fully’’ consistent. We interpret the administrative decision record, it is activity it is not adequate to set out
latter term to be absolute. The plain fully consistent, or because of the ‘‘expected number of occurrences over a
definition of ‘‘fully’’ means requirements of other Federal law. specified period of time.’’ Additional
‘‘completely.’’ We have not found NOAA has provided, and will continue safeguards must be added to the final
anywhere in the CZMA or subsequent to provide, advice to Federal agencies rule requiring agencies to provide
amendments of 1990 and 1996 where on how to effectively use the consistent sufficient details about when and where
the Congress explicitly mandates that to the maximum extent practicable the activity would occur, and requiring
Federal agencies comply with every standard in connection with their that the States and public should be
State coastal zone requirement statutes and individual case-by-case advised in advance of the actual
regardless of cost or national decision records. occurrence and location of such activity
implication. We ask that the OCRM to assure that it is being carried out as
revise the proposed rule to clarify that Section 930.35(d)—General Negative
originally represented; and (3) Agencies
budget authority may limit a Federal Determination
should not have the option (‘‘may’’) of
agency’s ability to be fully consistent. Comment 36. NOAA should consider periodically reviewing the general
NOAA Response to Comment 35. The written notification response negative determination. The final rule
definition of ‘‘consistent to the requirements for States under Section must provide that Federal agencies are
maximum extent practicable’’ clearly 930.35(c) similar to that under required (‘‘shall’’) to reassess at least
reflects the language and intent of the § 930.41(a), thereby requiring States to every three years or sooner if deemed
CZMA and was not changed in 2000 provide written notification to a Federal necessary by the State or Federal
from its 1979 definition. NOAA’s agency if a State objects to a negative agency.
language was specifically endorsed by determination. Any such State response Comment 38. New Jersey’s Coastal
Congress in the conference report to the should also be required to provide Management Program does not object to
1990 CZMA reauthorization and has supporting information regarding the the concept, provided that the Federal
been upheld by Courts since then. In State’s assertion that coastal effects are agency be required to reassess whether
addition, NOAA discussed the reasonably foreseeable. the general negative determination
relationship between statutory NOAA Response to Comment 36. The remains applicable every five years.
requirements regarding the consistent to 14-day response in § 930.41(a) is merely Comment 39. We do not oppose the
the maximum extent practicable a completeness notification to the concept of a general negative
standard and appropriations law at Federal agency. It is not a substantive determination, and we generally
length in the preamble to the 2000 rule. response. The substantive response for a support the proposed rule text. We do,
See 65 FR 77133–77135 (December 8, consistency determination is the 60-day however, support the concept of a
2000). The suggested changes would period in § 930.41(a). This same 60-day mandatory periodic review of the
general negative determination, but the Federal agency would be obligated to clarify the provision in the existing
suggest that prior to undertaking each to provide the affected State(s) with a regulations that provides that the time
review the Federal agency should be consistency determination under period for a State to review a
permitted to request an affirmative § 930.34(a)(1). A State could also notify consistency submittal does not start
waiver of the review from each affected the Federal agency if the State later until the State receives the necessary
State. This should relieve the Federal maintains that an activity subject to a data and information. However, the
agency from unnecessary paperwork previous negative determination is proposed change eliminates any
where there is no disagreement having coastal effects. If the Federal meaning of this provision and will
regarding the effects of the activity. agency agreed, the Federal agency allow the time period to begin upon
Comment 40. We recommend that this would have to conduct the activity receipt of the submittal in almost all
paragraph include consideration of consistent to the maximum extent situations, effectively eliminating the
situations in which an activity practicable with the State’s enforceable States’ ability to evaluate the content of
conducted under a general negative policies. a consistency submittal before acting on
determination actually does have or Comment 41. We endorse and it. The purpose of this ‘‘clarification’’
may have coastal impacts. Specifically, appreciate NOAA’s proposed appears to be removing discretion from
we suggest that the Federal agency rulemaking establishing a general States to seek the information
should be required to immediately negative determination option for requirements they need to analyze
discontinue the use of the general Federal agencies. Federal agency activities. This
negative determination and conduct a NOAA Response to Comment 41. clarification would render the
new review of the activities to see NOAA notes this comment. information requirements virtually
whether a general negative meaningless and contravene their
determination or an individual Section 930.41(a)—State Agency intent. For example, in many cases, a
consistency determination is more Response consistency submittal will include an
appropriate. Comment 42. We support the analysis of some of the relevant policies,
NOAA Response to Comments 37, 38, requirement for States to provide a but fail to consider other relevant
39, 40. The general negative written response within 14 days if more provisions of the State’s coastal
determination category does not create information is required pursuant to program. The changes will require the
an exemption. It can only be used when 930.39(a). Written responses will State to initiate the time period for
a series of Federal agency activities do alleviate the scheduling ambiguity that consistency review despite the fact that
not have coastal effects, either direct, can occur based on informal the submittal is missing analysis of
indirect or cumulative. The general discussions. important coastal program policies. To
negative determination is consistent NOAA Response to Comment 42. date, we have never received any
with the case-by-case analysis embodied NOAA agrees that the 14-day objections or concerns raised by Federal
in federal consistency reviews because notification will alleviate discrepancies agencies when we have asked for
the general negative determination in determining when the 90-day review additional information necessary to
covers a single activity which occurs period has begun. support the agency’s conclusion. Like
frequently or repetitive activities related Comment 43. We understand the many of the proposed changes, this
to a single action or project. Likewise, intent of OCRM, but this subsection, as change is a solution in search of a
a definition of ‘‘repetitive’’ is not written, is likely to cause more problem. The proposal is unnecessary,
needed; this can be determined on a confusion than clarity. We recommend erodes the State authorities, and renders
case-by-case basis. The new section, that the last full sentence be broken into the information requirements
along with the rest of the negative two separate but modifying sentences to meaningless.
determination section, provides read as follows: ‘‘Thus, if a Federal Comment 46. The 14-day period
sufficient guidance to Federal agencies agency has submitted a consistency should be 21 or 30 days to assure that
for adequately describing the activity at determination and information required States have adequate time to review
issue. by 930.39(a), then the State agency shall more complex proposals. It is in both
Federal agencies should not be not assert that the 60-day review period the agency and the State’s interest that
required to reassess their negative has not begun because the information the consistency determination and
determinations within a specific time contained in the items required by supporting information be as complete
frame. Currently, Federal agencies are 930.39(a) is substantively deficient. as possible to assure expeditious and
not required to reassess their Additionally, the failure to submit qualitative review. The final rule should
consistency determinations, general information that is in addition to that also clarify that failure of a State to
consistency determinations or negative required by 930.39(a) shall not be a notify the agency of missing information
determinations. Therefore, a basis for asserting that the 60-day within 21 or 30 days shall not bar the
reassessment every few years should not review period has not begun.’’ State from subsequently seeking
be required for general negative NOAA Response to Comment 43. necessary information and/or objecting
determinations. The CZMA does NOAA agrees that breaking the sentence to a consistency determination for lack
require, of course, that Federal agencies into these two sentences is clearer and of adequate information.
provide States with a consistency has done so in the final rule. Comment 47. It is anticipated that,
determination if its activity, subject to a Comment 44. Replacing the word with minor clarification, the proposed
previous negative determination or ‘‘immediately’’ with a 14-day period is 14-day notification to the Federal
general negative determination, later has a positive change. This time period is agency that the 60-day review has not
coastal effects. Such matters would be more realistic considering the begun due to insufficient information
covered by the pre-existing sections for workloads of State consistency review will not impede Texas’ review process.
previously reviewed Federal agency staff. It is in both the agency and the State’s
activities under §§ 930.45 and 930.46. If NOAA Response to Comment 44. interest that the consistency
a Federal agency finds that activities NOAA notes this comment. determination and supporting
covered under a general negative Comment 45. The proposed information be as complete as possible
determination are having coastal effects, modifications to the regulation purport to assure expeditious and qualitative
review. However, the final rule should the 60-day review period. For Federal therefore, existing language should be
clarify that failure of a State to notify the agency activities under CZMA section retained. Alternatively, the definition of
agency of missing information within 14 307(c)(1), the Federal agency has always ‘‘lease’’ could be transferred to 930.11.
days shall not prevent the State from made the initial determination of coastal NOAA Response to Comment 51. As
subsequently seeking necessary effects and it is the Federal agency’s described in the explanation for this
information and/or objecting to a decision that it has sufficient revision, the change to the rule ensures
consistency determination for lack of information to provide the State with a that the definition of ‘‘federal license or
adequate information. consistency determination. See 15 CFR permit’’ is not overly-inclusive or
NOAA Response to Comments 45, 46, 930.36 and 930.39. beyond the commonly understood
and 47. The State has 60 days (plus Comment 48. NOAA should ensure meaning of license or permit, while at
applicable extensions) to issue its that the requirements of § 930.39(a) are the same time retaining the phrase ‘‘any
consistency concurrence or objection. clear enough to provide a complete required authorization’’ to capture any
The State would not have to issue its project description adequate for State form of federal license or permit that is:
concurrence or objection during the 14- review purposes, as well as the (1) Required by Federal law, (2)
day ‘‘completeness/checklist’’ review. information requirements of the authorizes an activity, (3) the activity
The completeness/checklist review is applicants, agencies, and States. NOAA authorized has reasonably foreseeable
not the State’s substantive review of the should clarify the relationship between coastal effects, and (4) the authorization
activity, and does not preclude the State this section and other sections of the is not incidental to a federal license or
regulations that provide information permit previously reviewed by the State.
from requesting additional information
requirements (i.e., § 930.58—necessary Thus, the removal of the forms of
during the 60-day review period or
data and information, and § 930.60— approvals listed in the current language
objecting for lack of information.
commencement of State agency review). does not exclude a category of federal
Requesting additional information and NOAA Response to Comment 48. authorizations from federal consistency,
objecting based on lack of information Section 930.39(a) contains a clear but emphasizes that any form of federal
are covered by § 930.43(b), which is not statement to Federal agencies of the authorization must have the required
being changed. The completeness/ information they must submit with a elements to be considered a ‘‘federal
checklist review is merely to clarify consistency determination. There is no license or permit’’ for CZMA purposes.
when the 60-day review period begins relationship between subpart C and Thus, ‘‘leases’’ are also removed from
by determining if the information subpart D regarding information needs. the rule, but are still a federal
required by § 930.39(a) is submitted to Subpart C is for Federal agency authorization if the four-part test is met.
the State. This would not always result activities and subpart D for federal
in the time period starting on receipt of Section 930.51(e)—Substantially
license or permit activities. The
whatever the Federal agency provides to Different Coastal Effects
requirements are distinct because of the
the State. Using the commenter’s different standards in the statute for Comment 52. The proposed change
example, if the Federal agency failed to determining consistency, i.e., consistent would limit the State’s review of
address applicable enforceable policies to the maximum extent practicable for federally licensed or permitted activities
in the State’s federally approved CMP in Federal agency activities and fully where substantially different effects
its consistency determination, then the consistent for federal license or permit than those contemplated during
Federal agency’s submission would not activities. This distinction allows States consistency review occur and a new or
be complete. The State could so notify flexibility to describe ‘‘necessary data amended submittal is warranted. Where
the Federal agency within the 14-day and information’’ for subpart D and E, an activity was previously approved, the
completeness/checklist notification whereas it does not for subpart C. Federal agency (not the State) would
period, and the 60-day review period determine whether the effects are
would not begin until the Federal Section 930.51(a)—Federal License or substantially different and warrant State
agency addressed the enforceable Permit review. Although the State’s opinion
policy. If, on the other hand, the Federal Comment 49. The revisions do not would be given considerable weight, it
agency submitted all information appear to significantly alter the original would not be given any deference.
required by § 930.39, including an intent of the rule. The State does not NOAA proposes this change because it
evaluation of all applicable enforceable object to the proposed rule changes. considers the Federal agency, rather
policies, then the 60-day review period Comment 50. We support this change than the State, to be the expert on
began when the State received that because it will ensure that the definition whether a permitted activity is having
information, even if the State believed of the term ‘‘federal license or permit’’ effects different than those effects
that the Federal agency’s analysis was is clearly and narrowly defined, and anticipated during review. However,
not an adequate evaluation the policies. will not include activities that have no this change substantially erodes the
Otherwise, a State could delay the start coastal effects. State’s authority and its ability to review
of the consistency review period NOAA Response to Comments 49 and federal license or permit or permit
indefinitely by claiming the Federal 50. NOAA notes these comments. activities which are not proceeding as
agency’s information was not good NOAA also notes, however, that the originally represented or which are
enough. Such a result would directly change in definition did not ‘‘narrow’’ having unexpected effects. It will likely
conflict with Congressional intent to the definition, but clarified NOAA’s encourage disagreement and lead to
balance State needs with federal long-standing interpretation. See also litigation. It is also contrary to
interests in efficient and timely response to comment 51. Congress’s expressed intent that the
decision-making. In addition, to further Comment 51. We do not understand federal consistency process be a joint
clarify, while the State may request the decision to delete ‘‘certification, and equal partnership between the State
additional information during its 60-day approval, lease, or other form of and Federal agencies. NOAA states in
review and may object for lack of permission’’ and the definition of the preamble that the ‘‘expert permitting
information, States have never had the ‘‘lease’’ from the existing definition of Federal agency’’ will make the
ability to describe information for Federal License or Permit. The proposed determination about whether the effects
Federal agency activities needed to start deletions do not clarify the definition; are substantially different on the State’s
coastal zone. The State, rather than the NOAA Response to Comment 53. This the effects analysis that an applicant
Federal agency, should be considered comment raises a connection between must submit is still included. If the
the expert on the effects on the State’s determining substantially different State needs information that is in
coastal zone and whether the effects are coastal effects under § 930.51(e) and addition to the necessary data and
substantially different than previously amended OCS plans. These sections are information required by § 930.58(a)
reviewed. not ‘‘entirely different standards,’’ but prior to the start of consistency reviews,
NOAA Response to Comment 52. The are complementary. The change to then the State must amend its
change to this section does not limit a § 930.51(e) creates a more consistent management program pursuant to
State’s ability to review federal license standard with changes to OCS plans § 930.58(a)(2). Once the State’s six-
or permit activities. This change since, pursuant to the OCSLA, MMS month review begins, the State may
provides a more clear process. This determines whether an amended OCS make a written request for additional
section, added in the 2000 rule, was plan rises to the level where another information pursuant to § 930.63(c), if
designed to provide some guidance in consistency review is warranted. the State needs the information to
determining when a ‘‘renewal’’ or Comment 54. We support this determine consistency with its
‘‘major amendment’’ of a previously improvement because it leaves the enforceable policies.
reviewed federal authorization would decision making relative to a federally Comment 56. We support the
have substantially different coastal issued license or permit with the expert proposed revisions to § 930.58 as adding
effects, and thus the renewal or major Federal agency that initially issued such specificity to what an applicant is
amendment would be subject to permit or license. required to provide to obtain a State’s
consistency review. The 2000 language NOAA Response to Comment 54. consistency decision in a timely,
did not establish a decision maker, but NOAA notes this comment. responsible fashion. However, we urge
encouraged a joint consultation process Section 930.58—Necessary Data and NOAA to further amend § 930.58 to
to make this determination. NOAA, as Information clarify that a Federal agency’s NEPA
stated in the proposed rule, meant for process is separate and distinct from the
Comment 55. It is important that the State’s CZMA process unless the
the State’s view to be accorded current language in subsection (a)(1)(ii)
considerable weight in making this Federal agency, State, and applicant
requiring the applicant to submit agree to address consistency
decision. However, NOAA now believes information ‘‘sufficient to support the
that there needs to be finality to this requirements in NEPA documentation,
applicant’s consistency certification’’ be and that a State may not delay
determination, requiring a decision- retained. It is not necessarily sufficient, processing an applicant’s consistency
maker, and believes that the authorizing as provided in the proposed revisions, certification pending completion of the
Federal agency is in the best position to that the applicant ‘‘relied on the Federal agency’s NEPA or other
make this determination. As provided information’’ or that it was included in environmental processes. This change is
for in the new section, the Federal permit application material prepared to needed because applicants for FERC
agency must consult with the State determine compliance with Federal certificates have recently experienced
agency and the applicant, give permit requirements. What if the problems and delay in trying to obtain
considerable weight to the State applicant ‘‘relied on’’ information that is consistency decisions for proposed
agency’s view, and shall broadly unrelated to the applicable enforceable projects. In one particular case, prior to
construe the effects test to ensure that policies or is provided in error to beginning its consistency review, the
States have the opportunity to review support its consistency determination? State required the applicant to submit:
activities with coastal effects not It is important to retain the link between (1) A federal consistency Assessment
previously reviewed under the CZMA. information provided by the applicant Form; (2) a copy of the application(s)
Comment 53. Under the proposed and the standard that it support an along with any supporting
regulations, the Minerals Management applicant’s consistency determination. documentation filed with FERC; and (3)
Service (MMS) would determine This reflects an important objective of a copy of FERC’s Draft Environmental
whether a change is significant and the CZMA, which is to assure that Impact Statement (DEIS). Subsequently,
would submit the amended plan to the agency and applicants substantively the State informed the applicant that
State. The proposed revisions confuse incorporate applicable State policies FERC’s DEIS should include a narrative
the determination that the MMS makes into their planning process. assessment of the effects of the entire
under section 25(i) of the OCSLA (43 NOAA Response to Comment 55. The project on, and its consistency with, all
U.S.C. 1351(i)) as to whether or not a necessary data and information of the applicable State Coastal Policies
proposed modification of a DPP or other described in the revised rule contains related to land and water uses, natural
OCS plan is or is not ‘‘significant’’ for specific and clear requirements for resources, energy development and
purposes of the OSCLA (see 30 CFR information needed to start the six- cultural resources. The State further
250.204(q)(2)) with the entirely different month review process. These stated that its review of the consistency
standard under sections 930.51(b)(3) requirements are sufficient to provide certification would not begin until after
and (c) of the CZMA regulations of for a thorough State review. Applicants this information was received and it
whether or not a proposed OCS plan must submit any information relied on determined whether it and all other
modification will have effects in making their consistency certification necessary data and information were
‘‘substantially different than those to the State. This requirement is adequate to address the effects of the
originally reviewed by the State intended to capture all information proposal on the coastal zone. At a later
agency.’’ Thus, whether or not a relevant to the certification, but exclude date, the State informed the applicant
proposed modification of a DPP is or is information an applicant is not able to and FERC that it would not begin its
not ‘‘significant’’ for purposes of the obtain or is not relevant to the consistency review of the project until
OCSLA has little or nothing to do with applicant’s certification for consistency. the FEIS had been issued. In fact, the
the completely separate and distinct The requirement for applicants to State did not commence its consistency
determination of whether or not the consider the State’s enforceable policies review until after FERC issued its FEIS.
modification satisfies the standard of 15 is not changed by this rulemaking and Tying a State’s commencement of its
CFR 930.51(b)(3) and (c). can be found at § 930.58(a)(3). Likewise, consistency review to a Federal agency’s
completion of its NEPA review subverts considered necessary data and submissions would only be acceptable if
the six-month time frame provided in information. This issue has come to the timeline for federal consistency
the CZMA and harms applicants and light in the case of the Outer review is significantly extended to be
Federal agencies in their efforts to Continental Shelf Lands Act (OCSLA). consistent with the time it actually takes
review and approve proposed projects See explanation of rule change 15: to process State and local permits
in a timely fashion. § 930.76(a) and (b) Submission of an (anything less than 12–18 months
Comment 57. API supports NOAA’s OCS plan, necessary data and would be unreasonable.); or 3. The rules
general recognition that it would be information and consistency could be changed to provide States the
impractical to require any NEPA certification. In addition, neither the ability to issue phased federal
documents in draft or final form to be CZMA nor NEPA require the Federal consistency concurrences with the
included as information necessary to agency to include CZMA consistency preliminary or conceptual concurrence.
start the six month review period with determination information in NEPA NOAA Response to Comments 59, 60
regard to OCS plans, considering the documents. Therefore, States cannot and 61. As described in the explanation
OCSLA’s explicit requirements for MMS delay the start of the CZMA review for rule change 12, elimination of State
to make decisions regarding an EP, as period because CZMA consistency permits from necessary data and
well as a DPP, within shortened time information is not included in a NEPA information is needed to address an
periods. However, the proposal appears document. See also explanation to rule untenable situation where the six-month
inconsistent to then indicate that a State change 12. review process could only begin at the
could nevertheless seek to amend its Comment 58. A State delay in same time the State determines the
CZM program to require its receipt of commencing, or completing, activity is consistent by issuing a State
any draft EIS prepared in connection consistency review of a project pending permit. Such a procedure has the
with a DPP, in order for its consistency an applicant obtaining permits from a potential to defeat the statutory six-
review period to begin. county or other local government month review requirement. It would
NOAA Response to Comments 56 and agency has the potential to unduly delay also prejudice both the applicant and
57. NOAA agrees that the CZMA and the approval of projects involving the public since it would preclude
NEPA processes are separate and that coastal issues. public comment during the six-month
the effects analyses for CZMA and NOAA Response to Comment 58. review if the State has already issued a
NEPA are different. NOAA also agrees NOAA’s change to § 930.58(a)(2) permit representing the State process for
that, while addressing the requirements removing State permits from necessary determining consistency.
of other Federal statutes in NEPA data and information addresses this Removing State permits from
documents is usually administratively concern. necessary data and information only
efficient and encouraged by NEPA, the Comment 59. It is the States’ affects starting the six-month review
CZMA does not authorize States to understanding that the elimination of period. This change does not affect the
require that CZMA-related information ‘‘permits’’ from the list of necessary data States’ ability to require that a State
be included in the NEPA document. and information will not limit the permit (which contains State
However, while States cannot describe State’s right subsequently to object to enforceable policies) be issued in order
necessary data and information for the consistency determination if an to find a project consistent or object to
Federal agency activities under CZMA applicant fails to secure necessary an activity because the applicant did not
section 307(c)(1), States may do so for permits. The final rule should expressly obtain the State permit within the six-
federal license or permit activities under affirm this understanding. month period. This does not result in
CZMA section 307(c)(3). The ability of Comment 60. We disagree with the ‘‘pre-judging’’ the State permit if the
States to include DEIS’s or FEIS’s that proposed deletion of the words ‘‘permit permit is not acted upon within the six-
are required for a federal license or or’’ in § 930.58(a)(2). As one of many month CZMA review. States may object
permit activity as necessary data and existing networked CZM programs, we to the consistency certification while
information under § 930.58(a)(2), does base our consistency decisions in part, providing that the objection will become
not subvert the two statutes or confuse on the receipt of local or State permits. a concurrence if the State permit is
the separate CZMA and NEPA If a local or State permit exists we need issued.
processes. The NEPA documents are to know. Asking for this information in NOAA cannot extend the federal
only being included since they contain a subsequent letter will cause time consistency review period beyond the
environmental information that the delays. Therefore, providing proof of statutorily mandated six-month period
State believes is important to make its issued local and State permits is to accommodate State permit processes.
consistency decision. Since the Federal necessary data and information needed As suggested by the comment, a State
agency cannot make its decision until to make a timely consistency decision. could issue a ‘‘preliminary’’ decision
the NEPA process is complete, there is Comment 61. Concurrent submissions within the six-month time frame so long
little or no time lost to the applicant. with no change in the time frames of the as its final decision is issued within the
However, NOAA added language to respective administrative processes will same six-month period. A State and
clarify that when a Federal statute lead to a State making a decision on the applicant could also agree to stay the
requires a Federal agency to initiate the federal consistency application prior to six-month period to a date certain, to
CZMA review prior to its completion of making a decision on the related State allow the State’s permit process to be
NEPA compliance, NEPA documents permit, and will result in the completed. See discussion of rule
will not be considered necessary data perception, if not the reality, that the change 13, § 930.60, for staying the six-
and information pursuant to State permit has been pre-judged. This month review period.
§ 930.58(a)(2). For example, when the is not likely to be acceptable to the Comment 62. If a proposed federal
operation of a Federal statute precludes regulated community. Accordingly, we activity has already received State or
a Federal agency from delaying the start have identified three alternatives, any of local government permits, applicants
of the CZMA process because the NEPA which would resolve this issue: 1. should be required to provide the State
document is not complete, NEPA Federal consistency review should with those permits along with the data
documents listed in a State’s commence only after the State permit and information developed during the
management program cannot be process is complete; 2. Concurrent review and approval of the State or local
government permit. Therefore, (a)(2). In addition, the applicant should information must be submitted and
additional language is required to clarify bear the responsibility of promptly received by the State.
that the States can request permitting responding to a State request for missing Comment 66. Proposed paragraph
information for projects that may information in order to assure that (a)(2) specifies the State’s responsibility
already be permitted. States have adequate time to review all of notifying the applicant of the receipt
NOAA Response to Comment 62. If an information. It is not sufficient for the of the necessary data and information.
applicant received a State permit prior applicant to provide the information According to the new language, the date
to the six-month consistency review and ‘‘during the review period.’’ There is the information previously deemed
the State has described ‘‘permit also a concern about the deletion of missing is received by the State is the
applications’’ in its program as language requiring that missing date the State’s review begins. Thus, the
necessary data and information information or other deficiencies be proposed language at (a)(2) contradicts
pursuant to § 930.58(a)(2), then the ‘‘corrected’’ or ‘‘cured’’ by the applicant. that of (a)(1)(ii).
applicant would merely have to provide Comment 67. The term ‘‘information’’
There is some concern that eliminating
the State with the previously issued in subsection (a)(1)(i) must be read as
these requirements could result in
permit to show it met the information something different than ‘‘necessary
turning the applicant’s review from a information and data’’ in subsection (ii).
requirement. No change to the rule is
substantive consideration of State After all, subsection (i) specifically says
necessary.
Comment 63. API endorses NOAA’s policies into a ministerial action. that the clock does not start if the State
attempted clarification of the definition NOAA Response to Comment 65. The does not receive the ‘‘certification or
of a ‘‘federal license or permit’’ completeness/checklist review is not the information * * *.’’ However, this
requiring consistency review, as well as State’s substantive review of the interpretation is incongruous with
the deletion of the confusing phrase activity, and does not preclude the State subsection (ii) which appears to use the
‘‘comprehensive data and information from requesting additional information term ‘‘information’’ as a short form for
sufficient to support the applicant’s during the six-month review period or ‘‘necessary information and data.’’
consistency certification’’ presently objecting for lack of information. Further, subsection (2) specifically
appearing in 15 CFR 930.58(a)(1). API Requesting additional information and contemplates that the clock will not
requests clarification that the objecting based on lack of information start if the State has not received the
protections now afforded in § 930.58(c) are covered by § 930.63(c), which is not ‘‘necessary data and information.’’ The
to an applicant’s confidential and being changed. The checklist review only harmonious reading of this rule is
proprietary information still remain in serves only to clarify the date when the that subsection (ii) is completely
place if this substituted language is six-month CZMA federal consistency optional. That is, if the State has
adopted. API would also suggest that review period begins by determining received the certification but not all of
NOAA consider restating the protection whether the certification and necessary the necessary data and information, the
found in subpart (c) of § 930.58 by data and information required by State may elect to start the clock anyway
rephrasing the substituted language in § 930.58 has been submitted to the State. and await the information. We believe
subpart (a) to read ‘‘any other non- Further cross-references are not needed that having this option removes
confidential and non-proprietary given the clarifying edits made in the certainty from the process and would be
language relied upon.’’ final rule. See explanation of rule exercised extraordinarily infrequently if
NOAA Response to Comment 63. change 13 for a detailed description of at all. The passage should be redrafted
Section 930.58(c) was not proposed to to indicate plainly that the clock does
the changes made from the proposed
be modified and the protections not start until the State receives all
rule. Under (a)(1)(ii) of the proposed
afforded by paragraph (c) remain in necessary data and information required
rule, a time period for the applicant to
effect. No re-wording is necessary. pursuant to § 930.58.
provide missing information is not NOAA Response to Comments 66 and
Comment 64. We support the new
needed for two reasons: First, such a 67. Paragraph (a)(2) does not contradict
specific information requirements
time frame would unnecessarily restrict (a)(1)(ii) in the proposed rule. However,
because they will make the process
State flexibility and second, starting the this has been clarified in the re-edited
predictable and more transparent.
NOAA Response to Comment 64. review period before receipt of all final rule to recognize that the State has
NOAA notes this comment. necessary data and information is an chosen to start the six-month review
option for the State. It would not then period without all of the necessary data
Section 930.60—Commencement of make sense to give the State this option and information. See explanation for
State Agency Review and then remove that flexibility by rule change 13 for a detailed description
Comment 65. The States reject the specifying by rule a date by which the of the requirements.
characterization that State review is missing information must be submitted. Comment 68. It is unclear why ‘‘or
merely a ‘‘checklist.’’ The information If a State is concerned with getting extend the six-month review period’’ in
should be adequate to address missing information early in the review the first line is proposed for deletion. It
applicable State coastal policies, and to period, then it should only start the seems that ‘‘staying the consistency time
‘‘support the applicant’s consistency review period when the State receives clock’’ is not the same as extending the
determination.’’ The final rule should both certification and all necessary data review period. The former means
also be amended to clarify the relation and information described in § 930.58. It ‘‘stopping the time clock’’ which
between the timelines established in is not clear why the applicant’s review presumably re-starts at the agreed upon
subsections (a)(1)(i) and (a)(2). The of State enforceable policies would time or action while the latter is not
provisions in (a)(2) provide that the become a ‘‘ministerial’’ review. The keyed to the time clock and, thus, it
State agency’s consistency review deletion of ‘‘deficiencies must be cured’’ provides additional flexibility and could
commences on the date that any missing in paragraph (a)(1)(ii) is replaced with be beneficial to either the Federal
information was received by the State the requirement that missing necessary agency or the State agency or, in many
agency. The language in (a)(1) should be data and information must be received instances, both. Provided any alteration
amended to include a specific cross- in paragraphs (a)(2) and (3). This change of the time frame is agreed to in writing
reference to the timeline provided in provides direction that the missing by State agencies and applicants, the
regulations should continue to provide regulations, there is significant providing any additional information
for this flexibility. uncertainty in determining when the other than that required by § 930.58(a).
NOAA Response to Comment 68. The six-month federal consistency review
statute is explicit that there is a six- Section 930.71—Federal License or
process commences because the States
month period for the State to conduct its Permit Activity Described in Detail
are free to deem an application
review. The statute does not provide the incomplete as they seek additional data Comment 73. We appreciate NOAA’s
flexibility to extend the six-month after the application is filed. This delays general endorsement of API’s suggestion
review period for federal license or the running of the time clock. Under the that CZMA consistency review of OCS
permit activities. Rather, the statute proposed rule, the States would activities described in detail in OCS
provides that if the State has not continue to have the ability to request plans should include federal approvals
objected prior to the expiration of the the information they need, so long as for individual permits under the Clean
six-month review period, the State’s they specifically describe such Water Act and Clean Air Act, and
concurrence with the consistency information in their management plans, therefore States should not and need not
certification is presumed. As such, making all potential applicants aware of conduct a separate consistency review
staying or ‘‘tolling’’ the time clock is the requirements prior to application. for those additional federal permits.
allowable as it does not extend the six- Thus, the States would be precluded While NOAA’s preamble comments will
month review period. The six-month from delaying federal consistency provide helpful guidance to the States,
review period is tolled until a specific review either before or after the six- API suggests that the MMS, States, and
date after which the remainder of the month period begins simply because industry would be better served by
six-month review period continues. they want more information. NOAA building that particular
Comment 69. The proposed language NOAA Response to Comments 70 and requirement into its consistency
for this section references ‘‘documents 71. This section does not require States regulations, and by the agency preparing
required by section 930.58.’’ However, to amend their programs when they special regulatory guidance to prevent
that section does not specify documents need additional information during the any further confusion in this regard. API
that must be submitted, but rather six-month review. This section does also points out what inadvertently could
identifies the information that must be refer to § 930.58(a)(2), which requires be misleading language in the
provided. The proposed language States to amend their programs if they preamble’s discussion of the effects of a
should be corrected. want to require information in addition State’s objection to an OCS plan
NOAA Response to Comment 69. to the ‘‘necessary data and information’’ certification. At one point, NOAA
NOAA agrees that the language should described in §§ 930.58(a)(1) and (3) to remarks that ‘‘[i]f the State objects to the
be consistent and has made this change. start the six-month review period. consistency certification, then MMS is
Comment 70. In order for a State to NOAA strongly encourages States to prohibited from approving the license or
require additional information for its amend their programs to be more permits described in the EP or DPP.’’ Of
review process, NOAA suggests a State specific regarding information needs, course, in the case of an expanded
must amend its State management and some States have done so. Once the ‘‘single consistency certification’’
program and have the amendment six-month consistency review period including individual air and water
approved by NOAA. The County begins, States can request additional permits, the EPA, and not the MMS,
believes the proposal is far too information needed to determine could be the subject of the statute’s
structured and formal a requirement for consistency with their enforceable restrictions on approval of the license or
the States to fulfill for the simple policies, but such requests cannot stay permit.
purpose of obtaining the information or otherwise alter the running of the six- NOAA Response to Comment 73.
necessary to review proposed projects. month review period unless the NOAA continues to emphasize the
In particular, the County notes that applicant and the State agree in writing administrative efficiency gained by
NOAA has not processed many to a stay until a specific date, as including CWA and CAA reviews in the
amendments to State approved required in § 930.60. State’s review of the OCS plan, and not
management programs, nor is NOAA Comment 72. Current regulations conducting separate reviews. However,
committing to provide the resources require applicants to provide NOAA cannot mandate such a
necessary to process such amendments. information deemed necessary for the requirement in its regulations. Such a
Further, the information needs of the review to begin, while the proposed requirement would have to be included
States to review proposed Federal revisions provide only that the by Interior in OCSLA regulations in its
licenses and permits is often driven by requested information be received by description of what federal approvals
developing environmental studies about the State. It is important that States have are ‘‘described in detail’’ in OCS plans.
the character and nature of the coastal the opportunity to review and analyze As for the federal authorizations
environment. Requiring the States to the adequacy of the information described in detail in OCS plans, a State
request and NOAA to approve formal provided, and assist the applicant in objection to a particular federal
amendments to the approved State providing additional information for the authorization precludes the authorizing
management plan every time additional review. Federal agency from issuing its
informational needs are identified will NOAA Response to Comment 72. This approval, not MMS (unless MMS is the
undercut the effectiveness of the review section is concerned with determining authorizing Federal agency).
process by the States. It will actually when the six-month review period
lengthen the review process as States begins based on when the State has Section 930.76(a) and (b)—Submission
seek time extensions to obtain needed received the consistency certification of an OCS Plan, Necessary Data and
information to review activities for and necessary data and information Information and Consistency
consistency with coastal management described in § 930.58. Thirty days is Certification
programs. Further, the requirement is sufficient time for a State to determine Comment 74. Because the proposed
unnecessary and, therefore, should not whether the necessary data and changes would rely on submission of
be imposed. information has been submitted. The necessary data and information
Comment 71. We support these State has the remainder of the six-month ‘‘required pursuant to § 930.58,’’ it is
changes because under the current review period to assist the applicant in important that the changes
recommended in rule change 10 and the should be able to describe such review period. States do have to amend
clarification requested in rule change 11 information needs in their programs their CMPs pursuant to § 930.58(a)(2) if
or comparable language be included in based on years of experience and they want to describe necessary data
the final rule. Without these changes, continues to encourage States to do so. and information in addition to that
we would object to the removal of the Comment 77. API urges NOAA to required by NOAA’s regulations. States
language in the current subsection (a) require the States to identify need the ability to ask for additional
for the reasons stated above. information needs in their CZM information during the review period to
Comment 75. This Change would programs, not just encourage them to do address relevant matters not covered in
drop an essential requirement of so. NOAA should also ensure State the necessary data and information. See
§ 930.76(a), which is to ‘‘identify * * * compliance by recognizing that a failure also response to comment 79, regarding
activities described in detail in the to timely seek NOAA’s ongoing State requests for information beyond
[OCS] plan which require a federal approval of a specific and current list of the three-month period when applicants
license or permit and which will have information needs will prevent a State make substantial modifications to
reasonably foreseeable coastal effects.’’ from requesting supplemental projects late in the six-month review
NOAA Response to Comments 74 and information beyond what is currently period. As for MOU’s with Federal
75. The required assessment of described in the State’s approved CZM agencies or Federal agency ‘‘guidance,’’
enforceable policies is contained in plan, or in the permitting Federal if States want to bind themselves with
§ 930.58(a)(3). Likewise, the effects agency’s regulations and guidance. MOU’s or guidance regarding
analysis that the applicant must submit Moreover, API asks NOAA to ensure consistency reviews they can do so.
is also contained under § 930.58(a)(3). that this process is open to public NOAA, of course, throughout the
These requirements are not changed by review. API again urges NOAA to adopt consistency regulations strongly
this rulemaking. regulations to provide a mechanism for encourages States and Federal agencies
Comment 76. The changes do not applicants to invoke NOAA’s to closely coordinate consistency
ultimately affect a State’s ability, under intervention and effective oversight reviews and to develop agreements that
current CZMA regulations, to make during consistency review if a State will increase the efficiency of the
continuing requests for new data and attempts to request information beyond reviews for a particular State or Federal
information that increase the what is specified in NOAA and MMS agency. NOAA is not requiring States to
uncertainty of the consistency process. requirements or State CZM plans. To submit completeness checklists for
As the proposed rule states, these further promote other federal agencies’ NOAA approval, because the
changes ‘‘would not affect a State’s use of information guidelines such as information requirements in §§ 930.39,
ability to specifically describe those now used by MMS, API also 930.58, and 930.76 contain sufficient
‘‘necessary data and information’’ in the suggests that NOAA regulations should guidance as to what information must
State’s federally approved management be changed to specifically recognize that be submitted to the State in order to
program * * * or to request additional in cases where the federal permitting start the consistency review periods.
information during the six-month agency has promulgated specific
review period * * * or to object for lack Comment 79. We disagree with
consistency review guidance, in
of information.’’ API believes that this NOAA’s proposal to require each State
consultation with the States, a State will
open-ended authority in NOAA’s to list the NEPA EIS in their State
carry the distinct burden of
regulations is not needed, given that management plan as an informational
demonstrating a particular need for any
MMS has promulgated extremely supplemental information in conducting requirement in order for the State to be
thorough environmental review its review and that such State able to receive the EIS as part of a
regulations and agency guidance for coordination with the authorizing complete informational submittal to the
OCS Plans, and information generated Federal agency is not advisory but a State. Where possible, rulemaking
by this process should be honored by required feature for State management should standardize the informational
the States. MMS developed its programs. requirements needed for State
requirements in consultation with the Comment 78. API endorses NOAA’s consistency review. Any EIS prepared
Gulf coastal States. API suggests that clarification of the State’s completeness/ for the project will obviously be useful
information now being provided to checklist review. API submits that the and even essential information for the
MMS should be sufficient for the State’s ‘‘checklist’’ nature of the completeness State’s consistency determination.
purposes. In addition, States should be review be confirmed in specific Therefore, the County requests that, for
able to identify in their CZM programs regulatory language, so that the States a project that requires an EIS, the draft
the information that will be required if will be required to prepare such a EIS be submitted as part of the
different from MMS requirements, so checklist—that is, a checklist submitted information submitted to the State
that applicants have this information at to NOAA for approval with input by the under this section.
the beginning of the process. States have appropriate Federal agencies and NOAA Response to Comment 79.
enough experience with implementation affected industry—for inclusion in their NOAA has only mandated CZMA-
of their CZM programs over the last 15 coastal zone management programs. specific information as ‘‘necessary data
years, and the types of projects they NOAA Response to Comments 77 and and information.’’ NEPA documents
evaluate for consistency and do not 78. NOAA does not have the authority that may be required for a Federal
need to evaluate, on a project-by-project to require States to amend their permit action may or may not be
basis, what information is needed. programs. California Coastal Com’n v. included as necessary data and
NOAA Response to Comment 76. Mack, 693 F. Supp. 821 (N.D. Cal. 1988). information and some States may want
Information obtained for Interior’s NOAA can only require a State to flexibility to develop their own
OCSLA purposes may not be sufficient submit a change that the State has made information needs. See also
for State CZMA purposes. Thus, States to its Federally approved program. 16 explanations to rule change 12 and rule
need flexibility to amend their programs U.S.C. 1455(e). Submission of the change 15 regarding limitations on
to describe necessary data and necessary data and information, along listing NEPA documents as necessary
information for OCS plans. NOAA with the consistency certification, is data and information. Therefore, NOAA
agrees with the comment that States what triggers the start of six-month has not mandated that NEPA documents
be included as necessary data and information after three months. This federal actions with coastal effects
information. change implies that unless a State within specific time frames. While the
Comment 80. The OCSLA, CZMA and requests information within the first time frames should not limit
NEPA provide opportunities for a State three months of the review period, it information necessary for a State to
to review proposed OCS activities. may be prohibited thereafter from make a reasonable decision, States
These three acts and implementing objecting based on lack of information. should not, and by statute, cannot, have
regulations contain different Given the emphasis in the previous unlimited time to review a project. The
requirements and timelines. Before regulatory changes on maximizing issue is what is necessary for the State’s
proceeding with any changes to Subpart public participation in the federal review. NOAA’s regulations, since 1979
F of the federal consistency regulations, consistency process, this proposal and as amended in 2000 and now in this
a complete analysis of the interaction represents a policy reversal and would final rule, provide reasonable
among these three acts should be have the effect of stifling public input parameters for what is necessary data
undertaken. In addition, a meeting of into the process. It would also clearly and information to start the consistency
State and federal representatives should diminish State authorities by removing review periods for Federal agency
be convened to discuss the ramifications the ability of the State to object based on activities, federal license or permit
of the proposed changes to the federal lack of information (or at a minimum, activities and OCS plans. These
consistency regulations and how these invite litigation over the question of ‘‘necessary’’ information requirements
regulations interrelate with the other whether the State retains this authority). are not significantly changed by this
two acts and implementing regulations. It may require states to hold an rulemaking. If the information required
NOAA Response to Comment 80. The additional hearing within three months, by NOAA in § 930.58(a)(1) and (3), and
CZMA regulations, including the solely for identifying information needs. information required by the State
regulations as revised by this final rule, Alternatively, it may simply compel a pursuant to 15 CFR 930.58(a)(2), is not
in addition to MMS regulations, contain State to act within three months, just to sufficient for the State to complete its
the coordination needed to address the preserve its options, thus halving the review the State can request additional
interaction of the CZMA and OCSLA. effective review period from six months information during the six-month
The NEPA connection was thoroughly to three. The idea that no new period. In most cases the information
discussed in the preamble to the 2000 information need could or should arise submitted pursuant to §§ 930.39, 930.58
rule, and further discussed in this final after three months is not realistic, from and 930.76, should be all the
rule. Further analysis of the CZMA– a practical perspective gained from information needed for a State to
OCSLA–NEPA interactions is not reviewing highly complex projects. In complete its review. To avoid situations
needed. See explanation of rule change addition, interested members of the where information requests are made
15 for further details on the NEPA public may alert the State to impacts or late in the six-month review of OCS
limitations for OCS plans and CZMA information about which it was not plans, States must determine whether
review. initially aware. We strongly oppose this additional information is needed in the
Comment 81. This section requires change as unworkable, impractical, and first three months. However, NOAA has
the applicant to send the State a copy unrealistic, and one that will lead to added a caveat to the rule allowing the
of the OCS Plan when the OCS Plan is increased litigation, rather than a State to request additional information
submitted to Interior. Receipt of a copy streamlined process. after the three-month period if the
of the initial plan by the State will NOAA Response to Comment 82. The person or Interior changes the OCS plan
encourage early cooperation among the completeness/checklist review is not the
such that the plan addresses activities or
State, Interior and the applicant. Early State’s substantive review of the
coastal effects not previously described
cooperation will help the State respond activity, and does not preclude the State
or for which information was not
to concerns and ensure that the from requesting additional information
previously provided. This should
consistency review proceeds in a timely during the review period or objecting for
address the main point of the comment
manner. lack of information. Requesting
NOAA Response to Comment 81. and also foreclose attempts to withhold
additional information and objecting
NOAA cannot require the applicant to project changes until after the three-
based on lack of information are covered
send its initial OCS plan to the State. month period. NOAA’s consistency
by § 930.77(a)(3). The completeness/
The submission to the State is by regulations have always required that if
checklist review merely clarifies when
Interior once Interior determines the the six-month review period begins by a State wants to object for lack of
submission to be complete for OCSLA determining whether the information information, it must first have provided
purposes. As it could be changed to required by § 930.76 has been submitted the applicant/person with a written
comply with OCSLA standards, the to the State. As stated in the proposed request for the information and describe
initial OCS plan may not be the version rule and in this final rule, a primary why the information is needed to
that the State will eventually review for purpose of this rulemaking is to provide determine consistency with its
consistency. NOAA does, however, greater clarity, transparency and enforceable policies. 15 CFR 930.63(c).
encourage the applicants to consult predictability to the federal consistency However, a State concurrence is
early with the State about its proposed process. The final rule meets those effective for the plan as reviewed by the
OCS activities. objectives by providing clear State and not to changes in the plan not
expectations regarding the start of available for review by the State.
Section 930.77(a)—Commencement of review periods and information needs. Therefore, the person should ensure that
State Agency Review and Public Notice NOAA found these changes were the State has all information relevant to
Comment 82. For OCS activities, needed because there were increasing a consistency certification before the
which by their very nature are complex instances of State attempts to prolong end of the three-month period.
and controversial, the proposed rule the six-month review period by Comment 83. We believe that
would limit requests for information by continual requests for additional requiring a program change to get
the State to the first three months of the information. additional information would be unduly
six-month review period, and thus The CZMA is intended to provide burdensome to State agencies,
prohibit a State from asking for any States with an opportunity to review especially in light of the other changes
proposed in the Notice. The proposed process. It is very important that, if this OCS activities. The amended plan
new sub-section (a)(3) would require the new requirement or some variation referred to under this section is a plan
State coastal agency to provide minute thereof is maintained to encourage to which the State objected and the
detail, in writing, of the reasons why States to amend their programs, it not be Secretary did not override the State’s
additional information is requested— open to interpretation as a bar or limit objection. The provision for Interior to
shifting the burden of proof to the State to the applicant providing or State provide the amended plan to the State
agency from the applicant. requesting all necessary information is merely a determination that the
NOAA Response to Comment 83. The supporting the consistency amended plan has met OCSLA
rules, since 1979, have required States determination, when it has not been requirements and is then ready to be
to amend their programs to describe included in an amended program. sent to the State.
necessary data and information if the NOAA Response to Comment 84. A
State wants information in addition to State is not required to amend its Section 930.85(b)—Failure To Comply
that described in § 930.58(a) required to program to describe State specific Substantially With an Approved OCS
start the six-month review period. This necessary data and information, thus the Plan
procedure was further emphasized in term ‘‘may’’ was used in § 930.58(a)(2). Comment 87. Although no changes
the 2000 rule and is not being changed If, however, a State wants to require are proposed to this section, this section
by this final rule. It has also always been ‘‘necessary data and information’’ in could be clearer as to who should be
required that if the State wants addition to that described in § 930.58(a) responsible for recommended remedial
additional information during the to start the six-month review period, the action. We recommend this subsection
State’s six-month review, the State must State must first amend its CMP. That is be clarified through the addition of
describe the reasons why it needs the why ‘‘shall’’ was used in § 930.77(a)(2). language at the end of the next to last
information to determine consistency NOAA has changed the language in sentence to read, ‘‘Such claim shall
with specific enforceable policies. See § 930.77(a)(2) to better reflect this long- include a description of the specific
15 CFR 930.63(c). standing interpretation. Obtaining activity involved and the alleged lack of
Comment 84. In § 930.58(a)(2), the information that is in addition to the compliance with the OCS plan, and
State ‘‘may’’ amend its program to necessary data and information required request for appropriate remedial action
include information needs. In by § 930.76 is described in by the licensee or permittee.’’
§ 930.77(a)(2), the impact of the new § 930.77(a)(3). NOAA Response to Comment 87.
requirement providing that if a State NOAA has not made this change as the
needs information in addition to the Section 930.82—Amended OCS Plans remedial action could be taken by either
information required by section 930.76, Comment 85. The proposed revision MMS or the person.
it ‘‘shall amend its management does not appear to substantially change
Section 930.85(c)—Failure To Comply
program’’ is not clear. Why is this new the process for review of amended OCS
Substantially With an Approved OCS
requirement added to the regulations plans and the State does not object.
NOAA Response to Comment 85. Plan
when the States already have the option
to amend their programs under section NOAA notes this comment. Comment 88. The proposed change
930.58(a)(2)? While it may be a good Comment 86. This section removes a would shift the authority from the
practice and one that should be requirement that the applicant send a Director of OCRM to MMS to determine
encouraged where the information copy of the amended OCS plan to the whether an OCS plan has not been
needs are clearly identifiable, a State State. This provision should remain substantially complied with and
agency should not be required to amend because it encourages early cooperation whether an amended plan must be
its program to request additional among the State, Interior and the reviewed by the State for consistency.
information that is needed to determine applicant. The second change is an NOAA states in the preamble that this
consistency. A State should not be addition that Interior will furnish the is needed to clarify that MMS must
required to amend its program to State with a copy of an amended OCS make the determination whether a plan
anticipate potentially unknowable plan when it is satisfied that OCSLA has been substantially complied with or
information needs. An effort by the and CZMA requirements have been met. not. In the 2000 rule changes to these
California Coastal Commission, MMS While Interior is best suited to regulations, NOAA stated in the
and industry in the early 1990’s was determine if the requirements of OCSLA preamble that one ‘‘federal agency had
abandoned by mutual agreement as are met, Interior personnel may not have commented that the CZMA does not
potentially not productive because the expertise to decide if requirements authorize NOAA to require OCS plan
information needs change over time due of the CZMA regulations are met. There amendments. NOAA disagrees. This is
to changed circumstances. A list could should be a consultation with the State an existing regulatory requirement and
be overly burdensome and wasteful for built into this process. is mandated by the CZMA, CZMA
applicants, if States tried to anticipate NOAA Response to Comment 86. § 307(c)(3)(B).’’ Also in the 2000 rule
every possible concern. A list would be NOAA’s change to this section is not a changes, NOAA added § 930.65 which
out of date relatively soon after it was substantive change. NOAA cannot authorizes the State to monitor federally
compiled. The more comprehensive and require the applicant to send its initial licensed and permitted activities to
relatively simple requirements of the plan to the State. The submission to the determine whether they are not being
CZMA benefit applicants by enabling State is by Interior after Interior conducted as originally proposed and
them to focus on the relevant issues determines the submission to be will cause substantially different effects.
rather than satisfy an exhaustive and complete for OCSLA purposes. Because NOAA’s rationale for adding the
inflexible list of information an OCS plan could be changed to remedial § 930.65 now supports
requirements that would need to be comply with OCSLA standards, the retaining § 930.85, the remedial section
satisfied. Furthermore, a list that is not initial OCS plan may not be the version upon which § 930.65 was modeled.
adequate for all States may lead to more the State will eventually review for Changing this remedial provision is a
State objections based on lack of consistency. NOAA does, however, huge step backward; it would greatly
information, which would not improve encourage the applicants to consult reduce the State’s ability to insure that
the efficiency of the consistency review early with the State about its proposed OCS plans are carried out as proposed
and approved. NOAA should retain the never expressly existed and the change substantially further the national
provisions of § 930.86 which provide is, in fact, consistent with both the interest for CZMA appeal purposes.
the State ‘‘with a more meaningful CZMA and the CZMA–OCSLA However, this conclusion is made by the
opportunity’’ to address instances where relationship. Secretary and relies on the factual
the State claims an OCS plan is not Comment 90. To clarify this section, record developed for an individual
being substantially complied with and we recommend the following appeal.
additional consistency review is modifications: (1) Insert ‘‘or to the
State’s request for appropriate remedial Section 930.121(c)—Alternatives on
mandated. Again, this change is
action’’ between ‘‘and applicable Appeal
inconsistent with both the letter and the
spirit of the CZMA. Rather than regulations’’ and ‘‘the person shall Comment 92. New Jersey’s Coastal
fostering cooperation and giving the comply with’’ in the third line of Management Program supports the
State a truly meaningful way to insure subsection (c); and (2) insert ‘‘if such proposed rule changes to this section. In
OCS plans continued compliance with has been prepared’’ between ‘‘amended particular, we strongly support the
the State’s management program, this OCS plan (excluding proprietary language clarifying that an alternative
change would reduce the State’s role information)’’ and ‘‘necessary data and shall not be considered unless the State
and abdicate the Director’s information’’ in the last sentence. submits a statement to the Secretary that
responsibility in favor of MMS. NOAA Response to Comment 90. the alternative would permit the activity
Comment 89. The proposed revision These changes are not needed. to be conducted in a manner consistent
to this paragraph eliminates all recourse Paragraph (c) now applies to instances with the enforceable policies of the
by the State or by NOAA to seek where MMS determines a person has management program.
compliance with the CZMA, in cases failed to substantially comply with an NOAA Response to Comment 92.
where an OCS operator may be acting in approved OCS plan, regardless of NOAA notes this comment. The
a manner that is not in accord with an whether the State requested remedial section’s revisions reflect the criterion
approved operating plan. MMS certainly action or not. Remedial action is relied on by the Secretary for
should have primary responsibility for covered in paragraph (b). determining whether an alternative will
ensuring that OCS Plans are followed, allow a proposed activity to be
Section 930.121(a)—Consistent With conducted in a manner consistent with
however, compliance with the approved CZMA Objectives on Appeal
State program and the CZMA is also in a state’s coastal management program—
question should an operator deviate Comment 91. FERC’s issuance of a as established by numerous CZMA
from the approved plan. We recommend certificate of public convenience and appeal decisions.
that the regulations give MMS a necessity for an interstate pipeline Comment 93. The second portion of
reasonable opportunity to review and should by definition be deemed to meet this section will prohibit the Secretary
act on a report that a person is failing the criteria that an activity significantly from considering any alternative that
to comply substantially with their OCS and substantially furthers the national the State had not determined to be
plan, but the regulations should retain interest. A FERC certificate confers on consistent with the applicable
some mechanism by which the State can its holder the ability to exercise a enforceable policies. It is unreasonable
seek review and intercession via NOAA federal right of eminent domain. The to expect a State to conduct a
authorities. fact that the Congress in the Natural Gas comprehensive analysis of alternatives
NOAA Response to Comments 88 and Act (NGA) saw fit to confer this right on to ensure complete consistency
89. As stated in the proposed rule and a private applicant acting pursuant to a especially in complex projects which
this final rule, unlike other Federal federal authorization speaks volumes are not within the expertise of a coastal
statutes, the CZMA specifically about the national interest furthered by management agency. Further, it is unfair
addresses the OCSLA oil and gas interstate pipeline projects with FERC to require the State to commit to a
program and this establishes a unique certificates. finding of consistency on an alternative
coordination between the CZMA and NOAA Response to Comment 91. that necessarily will not have been fully
the OCSLA. Where the CZMA mandates FERC findings for an interstate pipeline developed or analyzed. However, it is
certain requirements for OCS plans, will undoubtedly be an important factor often possible to identify alternatives
these are addressed in NOAA’s considered by the Secretary to with fewer impacts that, upon further
regulations. Where the OCSLA program determine whether a project furthers, in study, may prove to be acceptable.
provides Interior with certain roles not a significant or substantial manner, the Additionally, the consideration of
covered by CZMA mandates, NOAA national interest as articulated in the alternatives should include those
will rely on Interior to implement those CZMA. However, an order issued by identified by the Secretary or any party
roles, consistent with CZMA FERC pursuant to the NGA to authorize to the appeal and not be limited to those
requirements. This statutory-specific the construction and operation of an the State identifies. If the language is
relationship is distinct from other interstate pipeline remains subject to adopted as proposed, it seems entirely
Federal statutes and, thus, the remedial other federal statutes as FERC itself has likely that an applicant for Federal
action section, 930.65, is appropriate for recognized. The statutory responsibility activity could do a cursory ‘‘bare-bones’’
other federal authorizations, but not for determining whether a project is evaluation and propose an alternative
OCS Plans. As such, and as explained consistent with the objectives of the that is clearly unacceptable to the State
in the proposed rule and the CZMA rests solely with the Secretary of so that the alternatives analysis burden
explanation in this final rule for Commerce. The question of whether a would fall to the State. The
§ 930.85(c), NOAA’s rationale for project furthers the national interest as responsibility to conduct a reasonable
retaining this section in the 2000 rule articulated in the CZMA is one aspect of alternatives analysis rightly belongs to
did not fully account for CZMA section this determination. Findings by FERC the applicant, who has the original
307(c)(3)(B) and the CZMA–OCSLA under the NGA would be given burden of proof and persuasion
interaction. This rule change is needed appropriate consideration by the respecting its chosen proposal.
to more closely coordinate CZMA and Secretary and major energy projects, NOAA Response to Comment 93. This
OCSLA requirements. Thus, NOAA such as an interstate pipeline, may is an adoption of current practice, as
cannot ‘‘abidicate’’ an authority which likely be found to significantly or noted in the explanation to this rule
change. Anyone can offer an alternative Subsections (a), (b) & (c)—Clarify the issue a decision, from 135 days to 75
on appeal. However, this change relation between the initial brief and days. The appeal decision record only
clarifies that for an alternative to be reply and additional procedural or other needs to provide the Secretary with a
considered available, the State would briefs required by the Secretary. For reasonable basis to issue a decision. The
have to declare whether it is consistent. example, would separate time periods record is ‘‘complete’’ when the
The point of the Secretary’s decision is be set out for those briefs? Would the Secretary determines there is sufficient
to determine whether to allow a Federal need for these additional briefs extend information to make a reasonable
agency to authorize the proposed the briefing schedule? Subsection decision. Public input is provided for in
project, which has already undergone (c)(3)—There seems to be an error in the public comment period in § 930.128.
substantial State review. Thus, if an subsection (c)(3) that refers to sections Likewise, to issue a more timely
alternative meets the purpose of the 930.127(a) and (c)(1). The significance decision and as described in the
project and the State finds the of these cross-references is not clear. description of this rule change, there
alternative consistent, then the Subsection (e) provides for extensions of will be only one reply brief by the
applicant could adopt the alternative briefing schedules ‘‘only in the event of appellant. Additional briefs will occur
and proceed with that alternative exigent or unforeseen circumstances.’’ only as needed by the Secretary. Time
without further State CZMA review. The This provision is overly restrictive. periods to submit any additional briefs
purpose of the appeal decisions is not Comment 96. The State generally required by the Secretary would be
to begin a new round of State reviews supports these changes, but we have established by the Secretary based on
for the same project, but to bring finality particular concerns. First, we suggest the complexity of the information
to the CZMA process for that project. If that allowing the appellant 30 days to requested and the amount of time left in
a State cannot make a finding of file the notice of appeal, and an the period to complete the decision
consistency for an alternative on appeal, additional 30 days to file its brief, record under § 930.130. Thus, States
then the State would not prevail on that whereas the State is permitted only 30 should ensure that (1) they fully
element of ground I. days in which to respond is unfair to the participate in the application process
State. We recommend that the State be during the authorizing Federal agency’s
Section 930.127—Briefs and Supporting given 60 days, which equals the total proceedings and raise all State concerns
Materials time afforded the appellant. Second, we and requirements, to the extent possible,
Comment 94. Thirty days is not an ask that subsection (b)(1) of the final to the authorizing Federal agency; and
adequate time period for the State to rule clarify whether supporting (2) the States should address issues in
respond to the new issues raised at the materials must be submitted in their objection letters to the fullest
appeals level. As NOAA points out, the electronic format or whether just the extent possible, and then, again, in their
Secretary is not imposing his or her briefs must be so submitted. Third, we brief on appeal. The cross-references to
judgment on the consistency of an suggest that the Secretary’s authority to paragraphs (a) and (e) in paragraph
activity with a State’s program, but determine the scope of the record is not (e)(3) are correct, as those sections
rather is reviewing new questions of unbridled and is limited by settled describe the briefs to be filed. In order
balancing competing national interests principles of administrative and to meet the 160-day period in § 930.130,
and looking at national security needs. procedural law. Subsection (c)(1) should the Secretary will need to adhere to a
By their very nature, these issues do not state that, at a minimum, the record strict briefing schedule and, thus,
involve questions of consistency with shall be comprised of all properly filed extensions are only for good cause
the State’s coastal program. Rather, and served briefs and supporting shown. All materials should be
these are new issues that the State does materials and all timely submitted provided in electronic format, as
not (nor is required to) consider in its public and agency comments. Fourth, as required by the existing rule. When
consistency review. The consideration the rule allows for the Secretary to order some materials, e.g., large maps, do not
of these issues will require additional additional briefs, subsection (e) should lend themselves to electronic format,
data gathering and, possibly, public clarify that the Secretary may establish NOAA does not require that these
input, and thus 30 days is insufficient the filing periods for such briefs beyond materials be provided electronically.
time for the States to consider these the limits specified in subsection (a). Paragraph (e), formerly (c), already
issues. Comment 97. It would be both allows the Secretary to extend the time
Comment 95. As a general matter, it practical and helpful to allow the for submission of briefs.
would be preferable for both States and parties to submit additional response NOAA is maintaining the deadlines
the appellants to permit the Secretary to briefs within 20 days after the filing of described in the proposed rule for when
establish a briefing schedule in the State’s opening brief. This would the appellant’s and State’s briefs are
consultation with the parties as allow the parties the opportunity not due. These deadlines are needed to
provided in the current regulation. This only for important rebuttal arguments, address the deadlines established by the
would enable a schedule to be but also for the parties’ responses to any Energy Policy Act. The appellant’s brief
established to meet the case-by-case public, or Federal agency comments that is due 30 days after submitting the
needs of both parties. To the extent the had been received into the decision notice of appeal and the State’s brief
final rule sets out a specific briefing record. will be due 60 days after appellant
schedule, it is in the best interest of both NOAA Response to Comments 94, 95, submits its notice of appeal.
parties to have an adequate opportunity 96 and 97. To meet the more restricted Comment 98. While API sees
to submit information to assure a time period for closing the decision potential utility in the provisions in
complete record. Allowing for a less record, limitations are needed to the proposed section 930.127(c)(2) for the
rigid briefing schedule would not briefing schedules and time spent Secretary to have the option of
extend the time set for completion of the developing the decision record. These requesting an initial round of briefs to
record and issuance of a final decision. limitations to the briefing schedules are address only procedural or
CSO supports the following specific even more imperative now that the jurisdictional issues, followed by briefs
technical changes: Subsection (a)— Energy Policy Act has imposed a on the merits as appropriate, the
Provide at least 45 and preferably 60 shorter, 160-day, period to develop the proposed rule needs to be changed to
days for States to submit a reply brief; decision record and a shorter period to clarify that exercise of this option by the
Secretary would constitute an exception Secretary of Commerce determines that the Secretary may reopen the period for
to the otherwise uniform provision in the plan’s activity is necessary in the Federal agency comments, when there is
proposed section 930.127(a) that interest of national security. (16 U.S.C. good cause shown, but before the record
requires the appellant’s opening brief to 1456(c)(1)(B) and (c)(3)(B)(iii).) NOAA closes.
be filed within 30 days of the appeal should not thwart Congress’s intent by Comment 102. Section 930.128(b)
notice, and the State’s brief to be filed adopting narrow interpretations of laws suggests that the public could be
30 days thereafter. intended to have a broad reach. required to comment prior to the
NOAA Response to Comment 98. No NOAA Response to Comment 100. availability of NEPA documents and
change is needed to note the This section deals only with Federal other important information that clarify
‘‘exception’’ since the uniform provision agency comments on appeals to the the nature of the proposed action and
in § 127(a) is not that only one brief is Secretary in 15 CFR part 930, subpart H. the potential for impacts on the State’s
allowed, but that the parties’ one brief This section has no impact on the coastal zone.
is due at a certain time. The provisions implementation of other subparts and NOAA Response to Comment 102. As
in paragraph (e) provide for other briefs has no impact on the weight given to explained above in response to
that may be required and paragraph State agency views on appeal. This comments on § 930.127, the Secretary
(e)(4) clearly provides the ‘‘exception’’ change only means that NOAA shall needs sufficient information to make a
language requested by the comment. give greater weight to the views of decision. The Secretary does not
Comment 99. Section § 930.127(b)(2) Federal agencies commenting in their necessarily need to obtain all
states that ‘‘[a]t the same time that areas of technical expertise over the conceivable views on every item
materials are submitted to the Secretary, views of other Federal agencies who are submitted for the record. Further, the
the appellant and the State agency shall not commenting in their area of shorter deadlines imposed by the
serve at least one copy of their briefs, technical expertise. This section does proposed rule and the Energy Policy Act
supporting materials and all requests not pit Federal agency views against dictate a more streamlined appeals
and communications to the Secretary State views. For example, an process that requires NOAA to establish
and on each other.’’ (Emphasis added.) authorizing Federal agency has a revised process for input by the
API believes that the highlighted developed an EIS under NEPA for its parties, the public and Federal agencies.
language could be misread as requiring proposed action to issue a federal Section 930.129—Dismissal, Remand,
an additional obligation of service on authorization. The authorizing Federal Stay, and Procedural Override
the Secretary beyond the procedures agency certainly has some knowledge of
already outlined in § 930.127(a) and environmental impacts, but suppose Comment 103. If the Secretary
(b)(2). Thus, API requests that NOAA there is possible harm to an endangered remands the case back to the State,
consider changing the language of species or a marine mammal. In those because new information relevant to the
proposed § 930.127(b)(2) to read as cases, the expert Federal agencies would State’s objection arises, NOAA proposes
follows: ‘‘At the same time that not be the authorizing Federal agency, to reduce the period for State comments
materials are submitted to the Secretary, but would be the Endangered Species from three months to 20 days. It would
the appellant and State agency shall Act agencies (the U.S. Fish and Wildlife be virtually impossible for States to
serve on each other at least one copy of Service and the National Marine comply with this change and it is likely
their briefs, supporting materials, and Fisheries Service (NMFS)). The views of that information on the alternative
all requests and communications the Fish and Wildlife Service and NMFS would not be complete. As a new
submitted to the Secretary.’’ would be accorded greater weight than alternative, there would not be a
NOAA Response to Comment 99. the authorizing Federal agency, or complete design or adequate
NOAA agrees with this comment and another Federal agency who might also environmental evaluation. Rather, the
has made this change. happen to comment on the ESA or States will be considering a conceptual
MMPA issues. plan. In addition, the change would
Section 930.128—Public Notice, eliminate public participation in the
Comment 101. The proposed change
Comment Period, and Public Hearing process, which is one of the
would allow the Secretary to reopen the
Comment 100. The proposed change period for Federal agency comments. cornerstones of federal consistency. In
would require the Secretary of All interested or affected parties, not California’s case, the CCC and the BCDC
Commerce to give greater weight to just Federal agencies, should be able to meet only once every 30 days. Under
Federal agencies in administrative submit comments if the Secretary this proposal, insufficient time would
appeals where they provide comments reopens the period for comments. The be available for us to conduct a public
within their area of expertise. NOAA’s change appears to accommodate the hearing and determine consistency with
proposal ignores the expertise of the time extension request of a Federal our program.
State in coastal planning and permitting agency while excluding other parties NOAA Response to Comment 103.
issues. This change, along with the from submitting comments. This change is needed to address the
other changes noted above, reduce the NOAA Response to Comment 101. In new time frame for closing the decision
deference accorded to the State under order to meet the more restricted time record. The remand to the State is not
the current regulations and elevate the period for closing the decision record, a new review of the entire project and
input of Federal agencies. Congress the public comment period will not be does not require public comment at the
intended the States to play an equal role re-opened, except as described in the State level. The remand is for the State
in determining the fate of their coastal regulation if the Secretary holds a to reconsider its previous objection in
zones except in the most unusual public hearing. Parties submit their light of the new information. Public
circumstance: when either, after a views according to the briefing comment on appeals is provided by the
judicial decision finding a federal schedule. In most cases this will also Secretary under § 930.128. However, in
activity to be inconsistent with a State’s apply to Federal agencies. However, response to the comment, NOAA
management program, the President there may be instances when the believes that a maximum time for
determines that inconsistent activity is Secretary will need further input from remand is not needed and that the
in the paramount interests of the United the authorizing Federal agency or an Secretary can choose a period longer
States or, with regard to OCS plans, the expert Federal agency. In these cases, than 20 days or might choose a period
less than 20 days, depending on the alternatives, and coastal impact as the nature of the project, scale and
time remaining in the 160-day period to mitigation to satisfy court review, scope of effects on coastal uses and
develop the record. Therefore, the NOAA should close its record resources, alternatives to the proposal,
‘‘exceed 20 days’’ language has been immediately upon receiving final party etc. NOAA has amended § 930.127(c)(3)
removed. briefs (API asks for a 120–180 day to note the importance of the
Comment 104. The change to period to develop the decision record). authorizing Federal agency’s
paragraph (c) would remove the At that point the Secretary has all record administrative decision and record in
Secretary’s ability to remand the appeal evidence necessary to decide any the Secretary’s decision, when that
for reasons other than those allowed appeal. Further, NOAA’s proposed information is submitted to the appeal
under section 930.130 governing the deadline exceptions for additional decision record.
stay of closing of the decision record. environmental or biological opinions The appeal process is an important
This would have the effect of are not needed for any appellate review component of the CZMA formula to
discouraging applicant-State agency and would simply delay the appeal. We balance State-Federal-private interests.
resolution of issues through negotiation, request that NOAA change its proposal The Secretary’s consideration of the
since it would no longer allow to comply with congressional intent that national interest in the CZMA objectives
settlement or negotiation as a basis for the Secretary decide these appeals is a ‘‘check’’ on the State’s authority to
remanding an appeal. Issues would expeditiously. block projects affecting State coastal
remain unresolved, until the Secretary Comment 107. While appeals to the uses or resources. If a State objects to
decides them in favor of one side or the Secretary are relatively rare, they do the issuance of a federal authorization,
other. have the potential to significantly then the project cannot go forward
NOAA Response to Comment 104. impact proposed projects in which the unless the Secretary overrides the
Open-ended remands are no longer mere fact of delay can sometimes be State’s objection.
possible under a definitive date in fatal to the ability to continue with the An unreasonably short period for
which to close the decision record. project. In such cases, we feel that it developing the decision record and
Comment 105. Section 930.129(b) would be beneficial to process appeals relying solely on the authorizing Federal
should be modified by inserting the to the Secretary of Commerce on a fast- agency’s record could substantially
words ‘‘including the enforceable track basis. We suggest a process in weaken the Secretary’s decision to
policies of the State,’’ after the word which the record on appeal consists of override the State’s objection, thus,
Act. documentation compiled by the State significantly diminishing this important
NOAA Response to Comment 105. and the relevant Federal agencies from CZMA safeguard. Moreover, the burden
This change would be, in part, which approvals for the projects must of establishing that the Secretary should
redundant with the remainder of this be obtained and that NOAA shall give override a State’s objection generally
paragraph. While the Secretary may conclusive weight to and be bound by rests with the permit applicant. NOAA
decide whether the State has complied any prior determination by a Federal is concerned that the time period
with CZMA requirements by basing its agency having authority to authorize the proposed by the comment could limit
objection on enforceable policies and activity determining the national or the ability of the applicant/appellant to
objecting in a timely manner, the public interest or the reasonableness of develop national interest information
Secretary does not review the alternatives. After a short briefing related to CZMA objectives, by (1) not
substantive basis for the State’s period and opportunity for public allowing sufficient time, and (2) forcing
decision. The Secretary will not comment, it is important that a decision all parties to use the authorizing Federal
substitute his decision for that of the be issued as soon as possible and agency’s record which is developed for
States. Such an action would be preferably within 90 days. purposes very different than those of the
contrary to a basic principle of the NOAA Response to Comments 106 CZMA. To meet the deadlines
CZMA that, CZMA coastal management and 107. NOAA proposed a 270-day established by the Energy Policy Act,
decisions are made by the States period as a reasonable time in which to NOAA has had to further alter some of
pursuant to State law incorporated into close the decision record. NOAA felt the appeals procedures to accommodate
federally approved CMPs. Hence, the that the 270-day time period was the new deadlines, provide the parties
Secretary’s balancing of the coastal needed because the authorizing Federal with a reasonable opportunity to argue
effects with the national interest and agency’s decision record often lacks their positions, and allow the Secretary
applying the CZMA objectives is a de information needed to address CZMA sufficient time to evaluate the decision
novo review. issues. The Secretary’s review is not a record, draft a decision document and
review of the State objection, rather it is issue a decision.
Section 930.130—Closure of the As described above for rule change
a de novo determination of whether the
Decision Record and Issuance of project is consistent with the objectives 25, § 930.130, the Energy Policy Act
Decision of the CZMA or in the interest of replaces NOAA’s proposed stay
Comment 106. We have serious national security. The Secretary’s provision with a new stay provision.
concerns that the consistency appeals judgement is not substituted for that of The Secretary may still use the new stay
process has caused undue delays in the authorizing Federal agency provisions to obtain NEPA and ESA
energy projects. Furthermore, NOAA’s regarding the merits of the project, nor documents. Again, NOAA emphasizes
proposed rule, while providing clarity does the Secretary determine whether a that doing so allows the Secretary to
to some definitions, fails to ensure that proposed project complies with other obtain environmental documents from
consistency appeal decisions are made Federal law. However, because of the the authorizing Federal agency and are
in a timely fashion. NOAA’s proposal multiple national interest requirements not additional environmental
establishes an unnecessarily long 270- of the CZMA, the Secretary must documents developed by the Secretary,
day window for record closure. Since evaluate the project in light of the but are the environmental NEPA and/or
the federal permit agency’s decision competing CZMA objectives. Varying ESA documents required by operation
must have fully considered the expertise levels of information and detail are of other Federal law without which the
of all relevant federal and State required to make these determinations authorizing agency cannot complete its
agencies, as well as project need, which are dictated by many factors such permitting action. The Secretary’s
request for these documents does not regulations should be revised to require, constitutional standards and statutory
delay issuance of the federal as a condition for approval of a State’s limitations, including those arising
authorization. If the NEPA and/or ESA CZMA program, that the State under the commerce clause and the
documents are completed prior to the participate in the FERC’s certificate/ supremacy clause.
appeal or during the 160-day decision NEPA environmental review process to NOAA Response to Comment 108.
record period, then the exception need ensure that FERC has the opportunity to The NGA may preempt State regulation
not be used. The use of the exception is address the State’s concerns. To the of interstate natural gas pipeline
most likely to be used in the OCS oil extent that the CZMA or regulations permitting. However, it does not
and gas context where timelines of the thereunder require NOAA to make a preempt CZMA requirements. The
OCSLA require the CZMA six-month determination in its own name (as CZMA is part of a Federal scheme
consistency review period to start before distinguished from resolving CZMA allowing State review of federal
MMS completes NEPA or ESA matters within the FERC certificate authorizations for private activities that
compliance. Nevertheless, OCS oil and process) NOAA should accept the have effects on State coastal uses or
gas projects are not delayed by use of record developed at FERC as being resources. Thus, both the NGA and
this exception, because MMS cannot dispositive of the issues reviewed and CZMA can and must be given the full
issue any license or permit until NEPA resolved by the FERC certificate process. effect of Federal law.
or ESA compliance is complete. NOAA asserts that it has de novo Consistency with State enforceable
review authority pursuant to the CZMA, policies does not violate any preemptive
Comment 108. The Natural Gas Act
without citation to the statute. Absent effect of the NGA because the State
(NGA), which predates the CZMA by
an express statutory grant of authority review, pursuant to federally approved
decades, confers on FERC plenary
for de novo review, however, NOAA’s State enforceable policies, is part of the
authority to issue certificates of public federal CZMA scheme and is not an
authority under CZMA is appellate
convenience and necessity to authorize intrusion upon FERC’s authority under
only. It is black letter law that an
the siting, construction and operation of the NGA. No federal license or permit
‘‘appeal’’ is an examination by the
interstate natural gas pipelines. activities are exempt from federal
appropriate review body of a decision
Numerous Supreme Court decisions consistency: consistency applies if the
record to determine if there are material
validate the preemptive effect of FERC’s activity will have reasonably foreseeable
errors of fact or application of law
authority under the NGA. The Congress coastal effects. 16 U.S.C. 1456(c)(3)(A),
contained in that record. Therefore,
in 1972 made clear that enactment of NOAA lacks the authority to engage in Conference Report at 970–972. The NGA
the CZMA did not diminish, modify or a de novo review of the interstate does not explicitly repeal any part of the
supercede this preexisting federal pipeline routing alternatives considered CZMA. Congress affirmed the no
authority. CZMA section 307(e). Now, by the FERC in the NGA certificate exemption component of the CZMA
however, the pending appeals from process. NOAA’s review fails to address federal consistency requirement when it
State objections to consistency the fact that in considering alternative reauthorized the CZMA in 1996, with
certifications for proposed interstate routes for an interstate pipeline that has no mention of the NGA. See Pub. L.
pipelines that have received FERC been certificated by the FERC, NOAA is 104–150. There is also no ‘‘affirmative
certificates calls into question whether engaging in what amounts to the very showing of an intention to repeal’’ the
this clear statement by the Congress will form of de novo review of the Federal CZMA federal consistency provision in
be followed. NOAA’s final rule should agency’s decision that NOAA disclaims. whole or in part. See Southern Pacific
state clearly that it will give due weight NOAA also asserts that ‘‘through the Transportation Co., v. California
to FERC’s findings in view of the CZMA Congress gave the States the Coastal Commission, 520 F. Supp. 800,
statutory scheme in the NGA that ability to review federal actions, 805 (N.D. CA 1981). As repeal by
confers on FERC sole responsibility for independent of the Federal agencies’ implication is not favored, the CZMA
determining whether, and under what reviews.’’ This statement, however, is must be given effect so long as the
conditions, a proposed interstate inconsistent with the fact that the CZMA and NGA are not irreconcilable
pipeline is required by the public CZMA limits NOAA’s consistency and the CZMA does not stand as an
convenience and necessity. The NGA review of a federal permit activity to an obstacle to the objectives of the NGA. Id.
and NEPA require FERC to assess all examination of whether the proposed Moreover, the Energy Policy Act clearly
reasonable alternatives to a pipeline’s activity is consistent to the maximum states that State CZMA review is not
construction proposal as a key factor in extent practicable with the enforceable affected even though FERC has been
its evaluation and determination. Yet policies of a State’s coastal zone given preemptive authority over State
NOAA asserts that it must review management plan. A State policy in its regulation under the Natural Gas Act.
alternatives that the protesting coastal coastal zone management plan that has As for the State policies, NOAA must
State, in that State’s judgment, deems the effect of blocking the siting of an approve State enforceable policies.
consistent with its State coastal interstate pipeline could not be NOAA will not approve State policies
management plan. This subverts the enforceable against a federally pre- that on their face contain requirements
comprehensive federal scheme Congress emptive NGA. For instance, in the case that are preempted by Federal law. For
intended for interstate pipeline analysis. of an interstate pipeline project that is example, the State of North Carolina
State consideration of issues not already to be situated within the coastal zone of sought to regulate low level aircraft in
covered in the FERC’s Environmental a State and has been or is to be issued flight by adopting policies that
Impact Statement (EIS) should, at the a certificate of public convenience and described specific standards preempted
very least, be done within the FERC- necessity under NGA section 7(c), 15 by Federal law administered by the
imposed deadline for State agency U.S.C 717f(c), conditioned on Federal Aviation Administration. The
comments. This would continue to compliance with 16 U.S.C. State sought to impose minimum
allow for full State participation, while 1456(c)(3)(A), a State may validly object altitude and decibel levels, and other
protecting federal authority to authorize to a pipeline company’s consistency overflight restrictions. NOAA denied
interstate natural gas pipeline certification only if that objection is the State’s request to incorporate the
construction pursuant to the NGA. based on State policies that satisfy pre- policies into the North Carolina CMP
Thus, the federal consistency existing substantive federal because the policies were, on their face,
preempted. Thus, North Carolina could policies. See e.g., Mountain Rhythm would be applied to license or permit
not use the policies for CZMA federal Resources v. FERC, 302 F.3d 958 (9th activities to be authorized by other
consistency purposes. Cir. Aug. 23, 2002); FERC, Standard Federal agencies with objectives
So long as a State’s enforceable Branch Procedure SBP–4–16 (March different from those in the CZMA. It
policies do not specifically describe 1992). In Mountain Rhythm, the Court would be incongruous for Congress to
preempted restrictions the State may found that there are ‘‘federal and state provide a mechanism for State review of
apply them through the federal law concerns for protecting and Federal agency activities and federally
consistency process to interstate managing coastline that Congress has authorized activities in one section and
pipeline projects. For example, a State declared to be limitations on FERC’s then remove that requirement in another
may implement enforceable wetland power. Specifically, the [CZMA] section. Section 307(e) is merely a
protection policies, but not provides that if a hydropower project is standard savings clause ensuring that
impermissible regulations for interstate located in a state’s coastal zone, then laws administered by Federal and State
pipeline safety. If a pipeline were to FERC cannot issue the license unless agencies are not altered by the CZMA.
impact State wetlands, then the the state’s applicable agency concurs S. Rep. No. 753, 92nd Cong., 2d Sess. 20
applicant must be consistent with the that the proposed project is consistent (1972). Moreover, Congress, in
State wetland policies. Thus, mitigation with the state’s Coastal Zone discussing sections 307(f) and 307(e),
may be required or, if mitigation is not Management Program * * * .’’ stated that these sections are provided
available, then the siting of a pipeline Mountain Rhythm at 960. The Court so that Federal agencies are not shielded
may need to be altered, not because the also found that implementation of the from compliance with more stringent
State is attempting to regulate the State’s permit program, through the environmental requirements of other
pipeline, but to address coastal effects CZMA federal consistency process, does Federal or State laws by a finding that
through the federal CZMA scheme. not ‘‘strip[] the federal government of its it is consistent to the maximum extent
In another case before the Surface exclusive grant of authority to issue practicable with the CZMA. 136 Cong.
Transportation Board (STB) for the licenses for hydropower projects. But Rec. 8077 (Sep. 26, 1990).
abandonment of a railroad line in the [State] permit is not a power permit; So long as State policies do not
Massachusetts, NOAA found, and the it is merely part of the consistency include specific preempted restrictions
STB concurred, that the CZMA process evaluation process invoked by the and a State’s policies are implemented
and the applicant’s compliance with the responsible state agency, DOE, in in a manner contemplated by the
State’s enforceable policies was not exercising its authority to assess CZMA, then the State is acting properly.
preempted by the Interstate Commerce consistency with state coastal zone See Norfolk Southern Corp. v. Oberly,
Commission Termination Act of 1995 management that Congress has granted 822 F.2d 388, 394–395 (1987) (‘‘While
(ICCTA) (49 U.S.C. 701, 10501). to the states in the CZMA.’’ Mountain the CZMA states a national policy in
Pursuant to the ICCTA, the STB has favor of coastal zone management, it
Rhythm at 967. The Court further
exclusive, preemptive, jurisdiction over does not on its face expand state
elaborated that the State’s ‘‘permit does
the construction, acquisition, operation, authority to regulate in ways that would
not in any way supplant FERC’s
abandonment or discontinuance of spur, otherwise be invalid under the
authority, but is a confirmation that a
industrial, team, switching, or side Commerce Clause’’).
proposed project complies with state
tracks, or facilities, even if the tracks are The CZMA mandates that the
waterway zoning regulations. FERC
located, or intended to be located, Secretary conduct an ‘‘appeal,’’ to
remains the only authority that can
entirely in one State. See City of Auburn establish ‘‘that the activity is consistent
issue power licenses. And with the
v. The Surface Transportation Board, with the objectives of this chapter or is
deliberate concurrence of the Secretary
154 F.3d 1025, 1030–1032 (9th Cir. otherwise necessary in the interest of
1998). Nevertheless, the STB has of Commerce about consistency with the national security,’’ but says nothing
consistently determined that the CZMA, FERC may do this even over about reviewing the substantive basis of
exercise of State and local government state objection. There has been in this the State’s decision. This statutory
traditional police power functions to case no improper interference by state standard for the Secretary’s review
protect the health and safety of their or local government with federal demands a de novo review, a new
citizens may not be preempted if there authority.’’ Id. review, of the activity, even though the
is minimal impact on interstate The Ninth Circuit’s statements are State found it objectionable. If, for
commerce and the regulatory action is consistent with CZMA section 307(e), purposes of interstate pipelines, an
taken in a non-discriminatory manner. which provides that the CZMA does not alternative route considered by FERC, or
Thus, NOAA and the STB determined diminish either Federal or State not considered by FERC (e.g., an
that Massachusetts could exercise its jurisdiction, responsibility, or rights and alternative route is explored after the
CZMA consistency authority in a does not supersede, modify, or repeal FERC process, but before completion of
manner compatible with the ICCTA if existing Federal law. However, Congress the CZMA process), is found to meet
the application of the State CMP clearly envisioned that Federal agencies CZMA objectives and is reasonable and
enforceable policies would not and applicants for federal authorizations available (including a State
impermissibly burden interstate might have to modify their activities to determination that the alternative is
commerce, restrict the railroad from be consistent with State enforceable consistent with the State’s program),
conducting its necessary operations or policies. For Federal agency activities, and the Secretary then overrides the
otherwise discriminate against railroad Congress requires Federal agencies to be State’s objection, then the Secretary is
activities. consistent to the maximum extent fulfilling the duties prescribed by
Likewise, under the Federal Power practicable. For federal license or permit Congress in the CZMA to balance the
Act, FERC has preemptive jurisdiction activities, applicants must be fully State-Federal-private interests within
over the licensing of hydro-electric consistent with the State’s federally the objectives of the CZMA.
facilities. However, applicants for FERC approved enforceable policies. Congress Comment 109. The regulations should
hydroelectric licenses must be initially intended and has subsequently maintain the Secretary’s discretion as to
consistent with the affected coastal affirmed that State consistency reviews the length of time needed for issuing a
State’s federally approved enforceable based on State laws approved by NOAA judicious decision. Any effort to force
that period into a shorter time period information will be obtained during the the CZMA, Federal agencies are
may encourage additional litigation period to develop the decision record. required to carry out their activities in
(thereby lengthening the process), if an The changes to § 930.130 and the rest of a manner that is consistent to the
appellant or a State believes its interests subpart H provide sufficient time to maximum extent practicable with
were not adequately considered. develop a decision record and to issue federally approved State management
NOAA Response to Comment 109. As timely decisions. programs, and licensees and permittees
described in the explanation, NOAA are required to be fully consistent with
believes that the appeals can be Subpart I—Interstate Consistency the State programs. The CZMA and
processed in a more efficient manner Comment 113. We question the legal these implementing regulations, rather
and now has 160 days in which to authority for NOAA to establish than preempting a State, provide a
develop the decision record. interstate consistency review mechanism for it to object to federal
Comment 110. The State respects the requirements. The proposal response to actions that are not consistent with the
need for certainty in the override comments that States that the procedure State’s management program. A State
process and believes that these finds support in the ‘‘effects tests’’ is not objection prevents the issuance of the
proposals reasonably accommodate the consistent with the legislative history as federal permit or license, unless the
needs of the parties. The State does not we view it, and does not address the Secretary of Commerce overrides the
oppose these changes. fundamental constitutional infirmities objection. Because the CZMA and these
NOAA Response to Comment 110. concerning a State’s ability to review regulations promote the principles of
NOAA notes this comment. activities taking place wholly within the federalism and enhance State
Comment 111. Section boundaries of another State. authorities, no federalism assessment
930.130(a)(2)(ii), purporting to expedite NOAA Response to Comment 113. need be prepared.
other environmental analyses conducted NOAA continues to rely on the statute
pursuant to NEPA or the Endangered Executive Order 12866: Regulatory
and its legislative history for the Planning and Review
Species Act, in connection with any addition of the Interstate consistency
extension of the proposed 270-day regulations in 2000. NOAA’s view is This regulatory action is significant
period for the decision record in a summarized in the preamble to the 2000 for purposes of Executive Order 12866.
coastal consistency appeal is rule at 65 FR 77125, 77129–77133,
unnecessary, may infringe upon other Executive Order 13211
77152–77153 (Dec. 8, 2000).
coordinated agency processes, and Executive Order 13211 requires that
worse, gives the impression that review VI. Miscellaneous Rulemaking agencies prepare and submit a
pursuant to these two environmental Requirements ‘‘Statement of Energy Effects’’ to the
statutes can and should be hurried along Office of Management and Budget for
Executive Order 12372:
as interfering with the consistency certain actions. These actions include
Intergovernmental Review
review process. NOAA should delete regulations which have been designated
the phrase ‘‘on an expedited basis.’’ This program is subject to Executive as ‘‘significant’’ under Executive Order
NOAA Response to Comment 111. Order 12372. 12866 and are likely to have a
One of the oft-stated goals of CZMA Executive Order 13132: Federalism ‘‘significant adverse effect’’ on the
review is ‘‘coordination and Assessment supply, distribution, or use of energy.
simplification of procedures to ensure This action will not result in any
expedited governmental decisionmaking NOAA concluded that this regulatory adverse effect upon the supply,
for the management of coastal action is consistent with federalism distribution, or use of energy. Rather,
resources.’’ CZMA section 303(2)(G). principles, criteria, and requirements this regulation implements
This applies to State CZMA decisions stated in Executive Order 13132. The recommendations contained in the
and the Secretary’s appeal decisions. To changes in the federal consistency Energy Report, and serves to improve
that end, to the extent a NEPA or ESA regulations will facilitate Federal agency Federal-State coordination of actions
document being prepared by the coordination with coastal States, and affecting the coastal zone. The rule
authorizing Federal agency for its ensure that federal actions affecting any makes only minor, clarifying changes to
permit decision is not complete and the coastal use or resource are consistent existing regulations. To the extent these
Secretary determines the document is with the enforceable policies of changes impact energy supply,
needed, then the Federal agencies approved State coastal management distribution, or use, they should result
should endeavor to complete the programs. The CZMA and these revised in positive effects, by improving the
document in as timely a manner as implementing regulations promote the clarity, transparency and predictability
possible. principles of federalism articulated in of NOAA’s CZMA regulations.
Comment 112. Section Executive Order 13132 by granting the
930.130(a)(2)(ii) limits the Secretary’s States a qualified right to review certain Administrative Procedure Act
ability to consider important federal actions that affect the land and Pursuant to authority at 5 U.S.C.
information that may not be included in water uses or natural resources of State 553(b)(B), NOAA waives for good cause
NEPA documents or Biological coastal zones. Congress partially waived the requirement to provide prior notice
Opinions. The Secretary’s ability to the Federal Government’s supremacy and an opportunity for public comment
make a fully informed decision could be over State law when it created the on the provisions of this final rule that
compromised by limiting the Secretary’s CZMA. Section 307 of the CZMA and implement, verbatim, specific
options in this way. The Secretary NOAA’s implementing regulations provisions of the Energy Policy Act of
should be allowed to extend closure of effectively balance responsibilities 2005. Such procedures are unnecessary
the record to include any and all between Federal agencies and State as NOAA must comply with the law as
relevant information. agencies whenever Federal agencies enacted. Additional provisions of this
NOAA Response to Comment 112. propose activities or applicants for a final rule not explicitly contained in the
The Secretary needs only that required federal license or permit Energy Policy Act, though necessary for
information he determines is relevant to propose to undertake activities affecting NOAA’s compliance with that Act,
the CZMA appeal standard. That State coastal uses or resources. Through concern matters addressed in the
proposed rule and by public comment PART 930—FEDERAL CONSISTENCY (g) Effect on any coastal use or
in response to that rule. As such, these WITH APPROVED COASTAL resource (coastal effect). The term
provisions are within the scope of the MANAGEMENT PROGRAMS ‘‘effect on any coastal use or resource’’
notice previously provided and means any reasonably foreseeable effect
■ 1. The authority citation continues to on any coastal use or resource resulting
additional notice and comment are not
read as follows: from a Federal agency activity or federal
required.
Authority: 16 U.S.C. 1451 et. seq. license or permit activity (including all
Regulatory Flexibility Act ■ 2. Section 930.1 is amended by types of activities subject to the federal
The Chief Counsel for Regulation for revising paragraphs (b) and (c) to read consistency requirement under subparts
the Department of Commerce certified as follows: C, D, E, F and I of this part.) * * *
to the Chief Counsel for Advocacy of the § 930.1 Overall objectives.
* * * * *
Small Business Administration, when ■ 5. Section 930.31 is amended by
* * * * *
this rule was proposed, that the rule, if (b) To implement the federal revising paragraphs (a) and (d) to read
adopted, would not have a significant consistency requirement in a manner as follows:
economic impact on a substantial which strikes a balance between the § 930.31 Federal agency activity.
number of small entities. This rule only need to ensure consistency for federal (a) The term ‘‘Federal agency activity’’
makes minor changes to existing actions affecting any coastal use or means any functions performed by or on
regulations. The existing regulations do resource with the enforceable policies of behalf of a Federal agency in the
not have a significant economic impact approved management programs and exercise of its statutory responsibilities.
on a substantial number of small entities the importance of federal activities (the The term ‘‘Federal agency activity’’
and, thus, these clarifying changes will term ‘‘federal action’’ includes all types includes a range of activities where a
not result in any additional economic of activities subject to the federal Federal agency makes a proposal for
impact on affected entities. No consistency requirement under subparts action initiating an activity or series of
comments were received regarding the C, D, E, F and I of this part.); activities when coastal effects are
certification. Accordingly, the basis for (c) To provide flexible procedures reasonably foreseeable, e.g., a Federal
the certification has not changed and which foster intergovernmental agency’s proposal to physically alter
neither an initial nor final Regulatory cooperation and minimize duplicative coastal resources, a plan that is used to
Flexibility Analysis was not prepared. effort and unnecessary delay, while direct future agency actions, a proposed
making certain that the objectives of the rulemaking that alters uses of the coastal
Paperwork Reduction Act federal consistency requirement of the zone. ‘‘Federal agency activity’’ does not
This rule contains no additional Act are satisfied. Federal agencies, State include the issuance of a federal license
agencies, and applicants should or permit to an applicant or person (see
collection-of-information requirements
coordinate as early as possible in subparts D and E of this part) or the
subject to review and approval by OMB
developing a proposed federal action, granting of federal assistance to an
under the Paperwork Reduction Act
and may mutually agree to applicant agency (see subpart F of this
(PRA).
intergovernmental coordination efforts part).
National Environmental Policy Act to meet the requirements of these
regulations, provided that public * * * * *
NOAA has concluded that this participation requirements are met and (d) A general permit proposed by a
regulatory action does not have the applicable State management program Federal agency is subject to this subpart
potential to pose significant impacts on enforceable policies are considered. if the general permit does not involve
the quality of the human environment. State agencies should participate in the case-by-case or individual issuance of a
Further, NOAA has concluded that this administrative processes of federal license or permit by a Federal agency.
rule will not result in any changes to the agencies concerning federal actions that When proposing a general permit, a
human environment. As defined in may be subject to state review under Federal agency shall provide a
sections 5.05 and 6.03c3(i) of NAO 216– subparts C, D, E, F and I of this part. consistency determination to the
6, this action is of limited scope, of a relevant management programs and
* * * * * request that the State agency(ies)
technical and procedural nature and any ■ 3. Section 930.10 is amended by
environmental effects are too provide the Federal agency with review,
revising the following entry in the table and if necessary, conditions, based on
speculative or conjectural to lend to read as follows: specific enforceable policies, that would
themselves to meaningful analysis.
§ 930.10 Index to definitions for terms permit the State agency to concur with
Thus, this rule is categorically excluded
defined in part 930. the Federal agency’s consistency
from further review pursuant to NEPA.
determination. State agency
List of Subjects in 15 CFR Part 930 Term Section concurrence shall remove the need for
the State agency to review individual
Administrative practice and uses of the general permit for
procedure, Coastal zone, Reporting and * * * * * consistency with the enforceable
recordkeeping requirements. Failure substantially to comply policies of management programs.
with an OCS plan .................. 930.85(c).
Dated: December 21, 2005. Federal agencies shall, pursuant to the
Craig McLean, * * * * * consistent to the maximum extent
practicable standard in § 930.32,
Acting Deputy Assistant Administrator for
■ 4. Section 930.11 is amended by incorporate State conditions into the
Ocean Services and Coastal Zone
Management. revising the first sentence of paragraph general permit. If the State agency’s
(g) to read as follows: conditions are not incorporated into the
■ For the reasons stated in the preamble, general permit or a State agency objects
NOAA amends 15 CFR part 930 as § 930.11 Definitions. to the general permit, then the Federal
follows: * * * * * agency shall notify potential users of the
general permit that the general permit is presume State agency concurrence if the sales conducted by the Bureau of Land
not available for use in that State unless State agency’s response is not received Management). Lease sales conducted by
an applicant under subpart D of this within 60 days from receipt of the a Federal agency are Federal agency
part or a person under subpart E of this Federal agency’s consistency activities under subpart C of this part.
part, who wants to use the general determination and supporting * * * * *
permit in that State provides the State information required by § 930.39(a). The
agency with a consistency certification (e) The determination of substantially
60-day review period begins when the
under subpart D of this part and the different coastal effects under
State agency receives the consistency
State agency concurs. When subpart D paragraphs (b)(3), and (c) of this section
determination and supporting
or E of this part applies, all provisions is made on a case-by-case basis by the
information required by § 930.39(a). If
of the relevant subpart apply. Federal agency after consulting with the
the information required by § 930.39(a)
State agency, and applicant. The Federal
* * * * * is not included with the determination,
agency shall give considerable weight to
■ 6. Section 930.35 is amended by the State agency shall notify the Federal
the opinion of the State agency. The
redesignating paragraph (d) as agency in writing within 14 days of
terms ‘‘major amendment,’’ ‘‘renewals’’
paragraph (e) and by adding a new receiving the determination and
and ‘‘substantially different’’ shall be
paragraph (d) to read as follows: supporting information that the 60-day
construed broadly to ensure that the
review period has not begun, identify
§ 930.35 Negative determinations for State agency has the opportunity to
missing information required by
proposed activities. review activities and coastal effects not
§ 930.39(a), and that the 60-day review
* * * * * previously reviewed.
period will begin when the missing
(d) General Negative Determinations. information is received by the State * * * * *
In cases where Federal agencies will be agency. If the State agency has not ■ 10. Section 930.58 is amended by
performing a repetitive activity that a notified the Federal agency that revising paragraph (a)(1) and the third
Federal agency determines will not have information required by § 930.39(a) is sentence of paragraph (a)(2) and adding
reasonably foreseeable coastal effects, missing within the 14 day notification a new fourth sentence and a new fifth
whether performed separately or period, then the 60-day review period sentence in paragraph (a)(2) to read as
cumulatively, a Federal agency may shall begin on the date the State agency follows:
provide a State agency(ies) with a received the consistency determination
general negative determination, thereby and accompanying information. The § 930.58 Necessary data and information.
avoiding the necessity of issuing State agency’s determination of whether
separate negative determinations for (a) * * *
the information required by § 930.39(a)
each occurrence of the activity. A is complete is not a substantive review (1) A copy of the application for the
general negative determination must of the adequacy of the information federal license or permit and
adhere to all requirements for negative provided. Thus, if a Federal agency has (i) All material relevant to a State’s
determinations under § 930.35. In submitted a consistency determination management program provided to the
addition, a general negative and information required by § 930.39(a), Federal agency in support of the
determination must describe in detail then the State agency shall not assert application; and
the activity covered by the general that the 60-day review period has not
negative determination and the (ii) To the extent not included in
begun because the information paragraphs (a)(1) or (a)(1)(i) of this
expected number of occurrences of the contained in the items required by
activity over a specific time period. If a section, a detailed description of the
§ 930.39(a) is substantively deficient. proposed activity, its associated
Federal agency issues a general negative The failure to submit information not
determination, it may periodically facilities, the coastal effects, and any
required by 930.39(a) shall not be a other information relied upon by the
assess whether the general negative basis for asserting that the 60-day
determination is still applicable. applicant to make its certification.
review period has not begun. Maps, diagrams, and technical data
* * * * * * * * * * shall be submitted when a written
■ 7. Section 930.37 is amended by description alone will not adequately
■ 9. Section 930.51 is amended by
adding a new third sentence to read as describe the proposal;
revising paragraph (a) and paragraph (e)
follows:
to read as follows: (2) * * * Necessary data and
§ 930.37 Consistency determinations and information may include completed
National Environmental Policy Act (NEPA) § 930.51 Federal license or permit.
State or local government permit
requirements. (a) The term ‘‘federal license or applications which are required for the
* * * State agencies shall not require permit’’ means any authorization that an proposed activity, but shall not include
Federal agencies to submit NEPA applicant is required by law to obtain in the issued State or local permits. NEPA
documents as information required order to conduct activities affecting any documents shall not be considered
pursuant to § 930.39. * * * land or water use or natural resource of necessary data and information when a
■ 8. Section 930.41 is amended by the coastal zone and that any Federal Federal statute requires a Federal
revising paragraph (a) to read as follows: agency is empowered to issue to an agency to initiate the CZMA federal
applicant. The term ‘‘federal license or consistency review prior to its
§ 930.41 State agency response. permit’’ does not include OCS plans, completion of NEPA compliance. States
(a) A State agency shall inform the and federal license or permit activities shall not require that the consistency
Federal agency of its concurrence with described in detail in OCS plans, which certification and/or the necessary data
or objection to the Federal agency’s are subject to subpart E of this part, or and information be included in NEPA
consistency determination at the earliest leases issued pursuant to lease sales documents. * * *
practicable time, after providing for conducted by a Federal agency (e.g.,
* * * * *
public participation in the State outer continental shelf (OCS) oil and gas
agency’s review of the consistency lease sales conducted by the Minerals ■ 11. Section 930.60 is revised to read
determination. The Federal agency may Management Service or oil and gas lease as follows:
§ 930.60 Commencement of State agency the consistency review period ■ 12a. Section 930.66 is amended by
review. commenced. adding a new paragraph (a)(3) to read as
(a) The State agency’s six-month (b) State agencies and applicants (and follows:
review period (see § 930.62(a)) of an persons under subpart E of this part) § 930.66 Supplemental coordination for
applicant’s consistency certification may mutually agree in writing to stay proposed activities.
begins on the date the State agency the six-month consistency review (a) * * *
receives the consistency certification period. Such an agreement shall be in (3) Substantial changes were made to
required by § 930.57 and all the writing and state a specific date on the activity during the period of the
necessary data and information required when the stay will end. The State State agency’s initial review and the
by § 930.58(a). agency shall provide a copy of the State agency did not receive notice of
(1) If an applicant fails to submit a written agreement to the Federal agency the substantial changes during its
consistency certification, the State and the Federal agency shall not review period, and these changes are
agency shall notify the applicant and presume State agency concurrence with relevant to management program
the Federal agency, within 30 days of an applicant’s consistency certification enforceable policies and/or affect
receipt of the incomplete submission, when such a written agreement to stay coastal uses or resources.
that a consistency certification the six-month consistency review * * * * *
satisfying § 930.57 was not received and period is in effect. The State agency ■ 13. Section 930.76 is amended by
that the State agency’s six-month review shall not stop, stay, or otherwise alter removing paragraph (c), redesignating
period will commence on the date of the consistency review period without paragraph (d) as paragraph (c), and
receipt of the missing certification, such a written agreement with the revising paragraphs (a) and (b) as
subject to paragraph (a)(2) of this applicant. follows:
section. (c) The State agency’s determination
(2) If an applicant fails to submit all that a certification and necessary data § 930.76 Submission of an OCS plan,
necessary data and information required necessary data and information and
and information under paragraph (a) of
by § 930.58(a), the State agency shall consistency certification.
this section is complete is not a
notify the applicant and the Federal substantive review of the adequacy of (a) Any person submitting any OCS
agency, within 30 days of receipt of the the information received. If an applicant plan to the Secretary of the Interior or
incomplete submission, that necessary has submitted all necessary data and designee shall submit to the Secretary of
data and information described in information required by § 930.58, then a the Interior or designee:
§ 930.58(a) was not received and that (1) A copy of the OCS plan;
State agency’s or Federal agency’s (2) The consistency certification;
the State agency’s six-month review assertion that the submitted information (3) The necessary data and
period will commence on the date of is substantively deficient, or a State information required pursuant to
receipt of the missing necessary data agency’s or Federal agency’s request for § 930.58; and
and information, subject to the clarification of the information (4) The information submitted
requirement in paragraph (a) of this provided, or information or data pursuant to the Department of the
section that the applicant has also requested that is in addition to that Interior’s OCS operating regulations (see
submitted a consistency certification. required by § 930.58 shall not extend 30 CFR 250.203 and 250.204) and OCS
The State agency may waive the the date of commencement of State information program regulations (see 30
requirement in paragraph (a) of this agency review. CFR part 252).
section that all necessary data and (b) The Secretary of the Interior or
information described in § 930.58(a) be ■ 11a. Section 930.46 is amended by
adding a new paragraph (a)(3) to read as designee shall furnish the State agency
submitted before commencement of the with a copy of the information
State agency’s six-month consistency follows:
submitted under paragraph (a) of this
review. In the event of such a waiver, § 930.46 Supplemental coordination for section (excluding confidential and
the requirements of § 930.58(a) must be proposed activities. proprietary information).
satisfied prior to the end of the six- (a) * * * * * * * *
month consistency review period or the
(3) Substantial changes were made to ■ 14. Section 930.77 is amended by
State agency may object to the
the activity during the period of the revising paragraph (a) to read as follows:
consistency certification for insufficient
information. State agency’s initial review and the § 930.77 Commencement of State agency
(3) Within 30 days of receipt of the State agency did not receive notice of review and public notice.
consistency certification and/or the substantial changes during its (a)(1) Except as provided in
necessary data and information that was review period, and these changes are § 930.60(a), State agency review of the
deemed missing, pursuant to paragraphs relevant to management program person’s consistency certification begins
(a)(1) or (2) of this section, the State enforceable policies and/or affect at the time the State agency receives the
agency shall notify the applicant and coastal uses or resources. certification and information required
Federal agency that the certification and * * * * * pursuant to § 930.76(a) and (b). If a
necessary data and information required ■ 12. Section 930.63 is amended by person has submitted the documents
pursuant to § 930.58 is complete, the revising the fourth sentence in required by § 930.76(a) and (b), then a
date the certification and/or necessary paragraph (d) to read as follows: State agency’s assertion that the
data and information deemed missing information contained in the submitted
§ 930.63 State agency objection to a
was received, and, that the State consistency certification.
documents is substantively deficient, or
agency’s consistency review a State agency’s request for clarification
* * * * *
commenced on the date of receipt. In of the information provided, or

the event of a State waiver under (d) * * * See § 930.121(c) for further information and data in addition to that
paragraph (a)(2) of this section, receipt details regarding alternatives for appeals required by § 930.76 shall not delay or
of the necessary data and information under subpart H of this part. otherwise change the date on which
deemed missing shall not alter the date * * * * * State agency review begins.
(2) To assess consistency, the State described in detail in the amended plan § 930.101 Supplemental coordination for
agency shall use the information will be conducted in a manner proposed activities.
submitted pursuant to § 930.76. If a consistent with the management (a) * * *
State agency wants to augment the program. When satisfied that the person (3) Substantial changes were made to
necessary data and information required has met the requirements of the OCSLA the activity during the period of the
by § 930.76 to start the six-month review and this subpart, the Secretary of the State agency’s initial review and the
period for OCS plans, then the State can Interior or designee shall furnish the State agency did not receive notice of
only do so if it amends its management State agency with a copy of the the substantial changes during its
program to include the information amended OCS plan (excluding review period, and these changes are
under § 930.58(a)(2). confidential and proprietary relevant to management program
(3) After the State agency’s review information), necessary data and enforceable policies and/or affect
begins, if the State agency requests information and consistency coastal uses or resources.
additional information, it shall describe certification. * * * * *
in writing to the person and to the ■ 16. Section 930.85 is amended by ■ 17. Section 930.121 is amended by
Secretary of the Interior or its designee revising the section heading and revising paragraph (c) to read as follows:
the reasons why the information removing paragraph (d) and revising
provided under § 930.76 is not adequate § 930.121 Consistent with the objectives or
paragraph (b) and paragraph (c) to read purposes of the Act.
to complete its review, and the nature as follows:
of the information requested and the * * * * *
necessity of having such information to § 930.85 Failure to substantially comply (c) There is no reasonable alternative
determine consistency with the with an approved OCS plan. available which would permit the
enforceable policies of the management * * * * * activity to be conducted in a manner
program. The State agency shall make (b) If a State agency claims that a consistent with the enforceable policies
its request for additional information no person is failing to substantially comply of the management program. The
later than three months after with an approved OCS plan subject to Secretary may consider but is not
commencement of the State agency’s the requirements of this subpart, and limited to considering previous appeal
review period. The State agency shall such failure allegedly involves the decisions, alternatives described in state
not request additional information after conduct of activities affecting any objection letters and alternatives and
the three-month notification period coastal use or resource in a manner that other information submitted during the
described in § 930.78(a). However, the is not consistent with the approved appeal. The Secretary shall not consider
State agency may request additional management program, the State agency an alternative unless the State agency
information after the three-month shall transmit its claim to the Minerals submits a statement, in a brief or other
notification period if the person or the Management Service region involved. supporting material, to the Secretary
Secretary of the Interior or its designee Such claim shall include a description that the alternative would permit the
changes the OCS plan after the three- of the specific activity involved and the activity to be conducted in a manner
month notification period such that the alleged lack of compliance with the OCS consistent with the enforceable policies
plan describes activities or coastal plan, and a request for appropriate of the management program.
■ 18. Section 930.123 is amended by
effects not previously described and for remedial action. A copy of the claim
which information was not previously revising the section heading and adding
shall be sent to the person.
provided pursuant to § 930.76. new paragraphs (c), (d) and (e) as
(c) If a person fails to substantially
follows:
* * * * * comply with an approved OCS plan, as
■ 15. Section 930.82 is revised to read determined by Minerals Management § 930.123 Definitions.
as follows: Service, pursuant to the Outer * * * * *
Continental Shelf Lands Act and (c) The term ‘‘energy project’’ means
§ 930.82 Amended OCS plans. applicable regulations, the person shall projects related to the siting,
If the State agency objects to the come into compliance with the construction, expansion, or operation of
person’s OCS plan consistency approved plan or shall submit an any facility designed to explore,
certification, and/or if, pursuant to amendment to such plan or a new plan develop, produce, transmit or transport
subpart H of this part, the Secretary to Minerals Management Service. When energy or energy resources that are
does not determine that each of the satisfied that the person has met the subject to review by a coastal State
objected to federal license or permit requirements of the OCSLA and this under subparts D, E, F or I of this part.
activities described in detail in such subpart, and the Secretary of the Interior (d) The term ‘‘consolidated record’’
plan is consistent with the objectives or or designee has made the determination means the record of all decisions made
purposes of the Act, or is necessary in required under 30 CFR 250.203(n)(2) or or actions taken by the lead Federal
the interest of national security, and if § 250.204(q)(2), as applicable, the permitting agency or by another Federal
the person still intends to conduct the Secretary of the Interior or designee or State administrative agency or officer,
activities described in the OCS plan, the shall furnish the State agency with a maintained by the lead Federal
person shall submit an amended plan to copy of the amended OCS plan permitting agency, with the cooperation
the Secretary of the Interior or designee (excluding proprietary information), of Federal and State administrative
along with a consistency certification necessary data and information and agencies, related to any federal
and data and information necessary to consistency certification. Sections authorization for the permitting,
support the amended consistency 930.82 through 930.84 shall apply to approval or other authorization of an
certification. The data and information further State agency review of the energy project.
shall specifically describe modifications consistency certification for the (e) The term ‘‘lead Federal permitting
made to the original OCS plan, and the amended or new plan. agency’’ means the Federal agency
manner in which such modifications ■ 16a. Section 930.101 is amended by required to: issue a federal license or
will ensure that all of the proposed adding a new paragraph (a)(3) to read as permit under subparts D or I of this part;
federal license or permit activities follows: approve an OCS plan under subpart E
of this part; or provide federal financial appellant deems necessary for administrative decisions, including
assistance under subparts F or I of this consideration by the Secretary. The licenses or permits, related to an
part for an energy project. State agency (or appellant on reply) appellant’s proposed activity when
■ 19. Section 930.125 is amended by shall cite to appellant’s appendix or submitted to the appeal decision record.
redesignating paragraphs (b) through (e) may file a supplemental appendix to The Secretary determines the content of
as paragraphs (c) through (f), by adding include additional documentation and the appeal decision record. The
a new paragraph (b) and by revising the material as the State agency (or Secretary may determine, on the
third and fourth sentences in appellant on reply) deems necessary for Secretary’s own initiative, that
redesignated paragraph (f) as follows: consideration by the Secretary that was additional information is necessary to
not included in appellant’s appendix (or the Secretary’s decision, including
§ 930.125 Notice of appeal and application the State agency’s supplemental documents prepared by Federal
fee to the Secretary. appendix). The parties are encouraged agencies pursuant to the National
* * * * * to discuss the contents of appellant’s Environmental Policy Act (42 U.S.C.
(b) The appellant’s notice of appeal appendix in order to include in the 4321 et seq.) and the Endangered
shall include a statement explaining the appendix as much of the supporting Species Act (16 U.S.C. 1531 et seq.), and
appellant’s basis for appeal of the State documentation and material as any may request such information.
agency’s objection under § 923.121 of party deems necessary for consideration (2) To promote efficient use of time
this title, including any procedural by the Secretary. In an appeal for an and resources, the Secretary may, upon
arguments pursuant to § 930.129(b). energy project, supporting the Secretary’s own initiative, require
Bases for appeal (including procedural documentation and material shall be the appellant and the State agency to
arguments) not identified in the limited to the parts of the consolidated submit briefs and supporting materials
appellant’s notice of appeal shall not be record described in paragraph (i)(1) of relevant only to procedural or
considered by the Secretary. this section to which the appellant or jurisdictional issues presented in the
* * * * * the State agency wishes to direct the Notice of Appeal or identified by the
(f) * * * If the Secretary denies a Secretary’s attention. Secretary. Following a decision of the
request for a waiver and the appellant (d)(1) Both the appellant and State procedural or jurisdictional issues, the
wishes to continue with the appeal, the agency shall send four copies of their Secretary may require briefs on
appellant shall submit the appropriate briefs and supporting materials to the substantive issues raised by the appeal
fees to the Secretary within 10 days of Office of General Counsel for Ocean if necessary.
receipt of the Secretary’s denial. If the Services (GCOS), NOAA, 1305 East (3) The Secretary may require the
fees are not received by the 10th day, West Highway, Room 6111 SSMC4, appellant and the State agency to submit
then the Secretary shall dismiss the Silver Spring, Maryland 20910. One briefs in addition to those described in
appeal. copy must be in an electronic format paragraphs (a) and (e) of this section as
■ 20. Section 930.127 is revised to read compatible (to the extent practicable) necessary.
as follows: with the website maintained by the (4) Any briefs not requested or
Secretary to provide public information required by the Secretary may be
§ 930.127 Briefs and supporting materials. concerning appeals under the CZMA. disregarded and not entered into the
(a) Within 30 days of submitting the (2) The appellant and State agency Secretary’s decision record of the
notice of appeal, as specified in shall serve on each other at least one appeal.
§ 930.125, the appellant shall submit to copy of their briefs, supporting (f) The appellant bears the burden of
the Secretary its principal brief materials, and all requests and submitting evidence in support of its
accompanied by the appendix described communications submitted to the appeal and the burden of persuasion.
in paragraph (c) of this section. Within Secretary, at the same time that (g) The Secretary may extend the time
60 days of the appellant’s filing of the materials are submitted to the Secretary. for submission, and length, of briefs and
notice of appeal, the State agency shall (3) Each submission to the Secretary supporting materials for good cause.
submit to the Secretary its principal shall be accompanied by a certification (h) Where a State agency objection is
brief accompanied by a supplemental of mailing and/or service on the other based in whole or in part on a lack of
appendix, if any, described in paragraph party. Service may be done by mail or information, the Secretary shall limit
(c) of this section. Not later than 20 days hand delivery. Materials or briefs the record on appeal to information
after appellant’s receipt of the State submitted to the Secretary not in previously submitted to the State agency
agency’s brief, appellant may submit to compliance with this subpart may be and relevant comments thereon, except
the Secretary a reply brief accompanied disregarded and not entered into the as provided for in § 930.129(b) and (c).
by a supplemental appendix, if any, Secretary’s decision record of the (i) Appeal Decision Record for Energy
described in paragraph (c) of this appeal. Projects. The provisions of this
section. (e)(1) The Secretary has broad paragraph apply only to appeals for
(b) A principal brief shall not exceed authority to implement procedures energy projects.
30 double-spaced pages; appellant’s governing the consistency appeal (1) The Secretary shall use the
reply brief shall not exceed 15 double- process to ensure efficiency and fairness consolidated record maintained by the
spaced pages. Any table of contents, to all parties. The appeal decision lead Federal permitting agency as the
table of citations, or certifications of record is composed of the briefs and initial record for an appeal under this
mailing and/or service do not count supporting materials submitted by the subpart for energy projects.
toward the page limitations. State agency and appellant, public (2) The appellant’s notice of appeal
(c) The appellant must prepare and comments and the comments, if any, required by § 930.125(a) and (b) must be
file an appendix with its brief submitted by interested Federal accompanied by four copies of the
containing: agencies. As noted in § 930.128(c)(1), consolidated record maintained by the

(1) Its consistency certification; the Secretary gives deference to the lead Federal permitting agency. One
(2) The State agency’s objection; and views of interested Federal agencies copy of the consolidated record must be
(3) All such supporting when commenting in their areas of in an electronic format compatible (to
documentation and material as the expertise and takes notice of relevant the extent practicable) with the website
maintained by the Secretary to provide noticed in the Federal Register and stating that the decision record has been
public information concerning appeals guided by the procedures described closed. The notice shall also state that
under the CZMA. Notwithstanding within § 930.113. If a hearing is held by the Secretary shall not consider
§ 930.125(e), the Secretary may extend the Secretary, the Federal Register additional information, briefs or
the time for filing a notice of appeal in notice for the hearing shall reopen the comments.
connection with an energy project for public and Federal agency comment (2) The Secretary may stay the closing
good cause shown to allow appellant period and shall close such comment of the decision record during the 160-
additional time to prepare the period 10 days after the hearing. day period described in paragraph (a)(1)
consolidated record for filing. ■ 22. Section 930.129 is amended by of this section:
(3) The appellant and the State agency revising paragraph (c) and paragraph (d) (i) For a specific period mutually
shall submit briefs as required by to read as follows: agreed to in writing by the appellant
paragraphs (a), (b) and (c) of this and the State agency; or
section. § 930.129 Dismissal, remand, stay, and
procedural override. (ii) As the Secretary determines
(4) Supplemental information may be necessary to receive, on an expedited
accepted and included in the decision * * * * *
(c) The Secretary may stay the basis:
record by the Secretary only as allowed (A) Any supplemental information
by § 930.130(a)(2). processing of an appeal in accordance
with § 930.130. specifically requested by the Secretary
■ 21. Section 930.128 is revised to read (d) The Secretary may remand an to complete a consistency review under
as follows: appeal to the State agency for the Act; or
reconsideration of the project’s (B) Any clarifying information
§ 930.128 Public notice, comment period,
and public hearing. consistency with the enforceable submitted by a party to the proceeding
policies of the State’s management related to information in the
(a) The Secretary shall provide public consolidated record compiled by the
program if significant new information
notice of the appeal within 30 days after lead Federal permitting agency.
relevant to the State agency’s objection,
the receipt of the Notice of Appeal by (3) The Secretary may only stay the
not previously provided to the State
publishing a Notice in the Federal 160-day period described in paragraph
agency during its consistency review, is
Register and in a publication of general (a)(1) of this section for a period not to
submitted to the Secretary. The
circulation in the immediate area of the exceed 60 days.
Secretary shall determine a time period
coastal zone likely to be affected by the
for the remand to the State agency. The (b) Not later than 60 days after the
proposed activity.
time period for remand must be date of publication of a Federal Register
(b) Except in the case of appeals
completed within the period described notice stating when the decision record
involving energy projects, the Secretary
in § 930.130 for the development of the for an appeal has been closed, the
shall provide a 30-day period for the
Secretary’s decision record. If the State Secretary shall issue a decision or
public and interested Federal agencies agency responds that it still objects to publish a notice in the Federal Register
to comment on the appeal. Notice of the the activity, then the Secretary shall explaining why a decision cannot be
public and Federal agency comment continue to process the appeal. If the issued at that time. The Secretary shall
period shall be provided in the Notice State agency concurs that the activity is issue a decision not later than 15 days
required in paragraph (a) of this section. consistent with the enforceable policies after the date of publication of a Federal
(c)(1) The Secretary shall accord of the State’s management program, Register notice explaining why a
greater weight to those Federal agencies then the Secretary shall declare the decision cannot be issued within the 60-
whose comments are within the subject appeal moot and notify the Federal day period.
areas of their technical expertise. agency that the activity may be federally
(2) The Secretary may, on the (c) The decision of the Secretary shall
approved. constitute final agency action for the
Secretary’s own initiative or upon
■ 23. Section 930.130 is amended by purposes of the Administrative
written request, for good cause shown,
revising paragraphs (a), (b), (c) and (d) Procedure Act.
reopen the period for Federal agency
to read as follows: (d) In reviewing an appeal, the
comments before the closure of the
decision record. § 930.130 Closure of the decision record
Secretary shall find that a proposed
(d) Except in the case of appeals and issuance of decision. federal license or permit activity, or a
involving energy projects, the Secretary (a)(1) With the exception of paragraph federal assistance activity, is consistent
may hold a public hearing in response (a)(2) of this section, the Secretary shall with the objectives or purposes of the
to a request or on the Secretary’s own close the decision record not later than Act, or is necessary in the interest of
initiative. A request for a public hearing 160 days after the date that the national security, when the information
must be filed with the Secretary within Secretary’s Notice of Appeal is in the decision record supports this
30 days of the publication of the Notice published in the Federal Register under conclusion.
in the Federal Register required in § 930.128(a). After closing the decision * * * * *
paragraph (a) of this section. If a hearing record, the Secretary shall immediately [FR Doc. 06–11 Filed 1–4–06; 8:45 am]
is held by the Secretary, it shall be publish a notice in the Federal Register BILLING CODE 3510–08–P

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Thursday,

15 CFR Part 930

General ND may no longer be means that State agencies should pay

need for these rule changes particularly transparency and predictability to

commenced on the date of receipt. In of the information provided, or

containing: agencies. As noted in § 930.128(c)(1), consolidated record maintained by the

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