Coastal Zone Management Act Federal Consistency Regulations, 788-831 [06-11]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 71, Number 3 (Thursday, January 5, 2006)]
[Rules and Regulations]
[Pages 788-831]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-11]



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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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15 CFR Part 930



Coastal Zone Management Act Federal Consistency Regulations; Final Rule

Federal Register / Vol. 71, No. 3 / Thursday, January 5, 2006 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 930

[Docket No. 030604145-4038-02]
RIN 0648-AR16


Coastal Zone Management Act Federal Consistency Regulations

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

ACTION: Final rule.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) 
revises the federal consistency regulations under the Coastal Zone 
Management Act of 1972 (CZMA). This final rule addresses the CZMA-
related recommendations of the Report of the National Energy Policy 
Development Group, dated May 2001 (Energy Report) as described in 
NOAA's June 11, 2003, Notice of Proposed Rulemaking (68 FR 34851-34874) 
(proposed rule), and comments submitted to NOAA on the proposed rule. 
In addition, this final rule includes provisions complying with 
statutory amendments made in the Energy Policy Act of 2005 (Pub. L. 
109-58) (Energy Policy Act) that concerned matters addressed in the 
proposed rule. This final rule continues to provide the balance between 
State-Federal-private interests embodied in the CZMA, while making 
improvements to the federal consistency regulations by clarifying some 
sections and providing greater transparency and predictability to the 
implementation of federal consistency. This final rule fully maintains 
the authority and ability of coastal States to review proposed federal 
actions that would have a reasonably foreseeable effect on any land or 
water use or natural resource of a State's coastal zone, as provided 
for in the CZMA and NOAA's regulations, as revised in 2000.

DATES: Effective date: These rules shall become effective on February 
6, 2006. Applicability date: All appeals to the Secretary under 15 CFR 
part 930, subpart H, filed on or after February 6, 2006, shall be 
processed in accordance with the procedures and time frames adopted in 
subpart H of this final rule. For appeals to the Secretary under 15 CFR 
part 930, subpart H, any procedural or threshold issues which occurred 
prior to February 6, 2006, shall be governed by the regulations in 15 
CFR part 930, subpart D, E, and/or F, in effect at the time the 
procedural or threshold issue occurred.

FOR FURTHER INFORMATION CONTACT: David W. Kaiser, Federal Consistency 
Coordinator, Office of Ocean and Coastal Resource Management (N/ORM3), 
NOAA, 1305 East-West Highway, 11th Floor, Silver Spring, Maryland 
20910. Telephone: 301-713-3155, extension 144.
    Additional information on federal consistency can be located at 
OCRM's federal consistency Web page: https://coastalmanagement.noaa.gov/
czm/federal_consistency.html.

SUPPLEMENTARY INFORMATION: 

I. Background

    For nearly 30 years, the CZMA has met the needs of coastal States, 
Great Lake States and United States Trust Territories and Commonwealths 
(collectively referred to as ``coastal States'' or ``States''), Federal 
agencies, industry and the public to balance the protection of coastal 
resources with coastal development, including energy development. The 
CZMA requires the States to consider the national interest as stated in 
the CZMA objectives and give priority consideration to coastal 
dependant uses and processes for facilities related to national 
defense, energy, fisheries, recreation, ports and transportation, when 
adopting and amending their Coastal Management Programs (CMPs), and 
when making coastal management decisions. CZMA sections 303(2)(D) and 
306(d)(8).
    Coastal States have collaborated with industry on a variety of 
energy facilities, including oil and gas pipelines, nuclear power 
plants, hydroelectric facilities, and alternative energy development. 
States have reviewed and approved thousands of offshore oil and gas 
facilities and related onshore support facilities.
    On December 8, 2000, NOAA issued a comprehensive revision to the 
federal consistency regulations, which reflected substantial effort 
over a five year period and participation by Federal agencies, States, 
industry, and the public. Given this recent broad-based review, NOAA 
did not propose a comprehensive re-write of the 2000 final rule; 
rather, it has made improvements to address the issues raised in the 
Energy Report, the proposed rule and comments submitted on the proposed 
rule.
    In February 2001, the Vice President established the National 
Energy Policy Development Group to bring together business, government, 
local communities and citizens to promote a dependable, affordable, and 
environmentally sound National Energy Policy. Vice President Cheney 
submitted the Energy Report to President Bush on May 16, 2001.
    The Energy Report contains numerous recommendations for a long-
term, comprehensive energy strategy. The Energy Report found that the 
effectiveness of Commerce and Interior programs are ``sometimes lost 
through a lack of clearly defined requirements and information needs 
from Federal and State entities, as well as uncertain deadlines during 
the process.'' The CZMA and the Outer Continental Shelf Lands Act 
(OCSLA), a statute administered by the Minerals Management Service 
(MMS), within the Department of the Interior (Interior), are 
specifically mentioned in the Energy Report. The Energy Report 
recommended that Commerce and Interior ``re-examine the current federal 
legal and policy regime (statutes, regulations, and Executive Orders) 
to determine if changes are needed regarding energy-related activities 
and the siting of energy facilities in the coastal zone and on the 
Outer Continental Shelf (OCS).'' Energy Report at 5-7. There is no 
explicit reference to other energy programs in this recommendation, but 
its purpose is reinforced by related Energy Report recommendations 
which encourage and direct the streamlining of significant energy 
actions within the jurisdiction of other Federal agencies, including 
the Federal Energy Regulatory Commission (FERC).
    In July 2002, NOAA published an Advanced Notice of Proposed 
Rulemaking, 67 FR 44407-44410 (July 2, 2002) (ANPR), seeking comments 
on whether improvements should be made to NOAA's federal consistency 
regulations. In response to public comments on the ANPR NOAA issued its 
proposed rule. After review of the comments received on the proposed 
rule and after waiting for the final report of the U.S. Commission on 
Ocean Policy (released in Fall 2004), NOAA has decided to issue this 
final rule.
    NOAA emphasizes that the changes to the federal consistency 
regulations contained in this final rule fully maintain the authority 
granted to States to review federal actions, pursuant to the CZMA and 
NOAA's 2000 rule. This final rule does not, in any way, alter the scope 
of the federal consistency ``effects test'' or the obligation of 
Federal agencies and non-federal applicants for required federal 
licenses or permits to comply with the federal consistency requirement. 
The issue of whether a proposed Federal agency activity under CZMA 
section 307(c)(1)is subject to

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State consistency review is still guided by the Federal agency's 
determination of reasonably foreseeable coastal effects, in accordance 
with NOAA's long-standing implementation and as articulated in the 2000 
rule. Likewise, the application of State consistency review to federal 
license or permit activities, OCS plans and Federal financial 
assistance activities under CZMA sections 307(c)(3)(A) and (B) and 
307(d) remains unchanged, i.e., the application of the ``listing'' and 
``unlisted'' requirements in 15 CFR 930.53 and 930.54 remains 
unchanged. The time periods for the States' substantive consistency 
reviews and decisions remain unchanged (75 days for Federal agency 
activities, six months for federal license or permit activities and OCS 
plans, and the time periods established by the States for federal 
assistance activities). States may continue to amend their CMP's to 
describe State specific information necessary to start the CZMA review 
period for federal license or permit activities and OCS plans. States 
may continue to request additional information during the 75-day and 
six-month review periods and may still object for lack of information. 
The final rule does not change these and other important regulatory 
provisions. At the same time this final rule improves the clarity, 
transparency and predictability of the regulations within the 
discretion granted to NOAA by the CZMA.
    Although this final rule does not change the fundamental federal 
consistency process, coastal states are strongly encouraged to 
coordinate and participate with applicants for energy projects and 
responsible Federal agencies early in project development. This effort 
will ensure that the States' ability to require NEPA documentation as 
necessary data and information does not delay the start of the six-
month consistency review period or unnecessarily delay a Federal 
agency's decision for a proposed project it finds to be in the public 
interest.
    While this rulemaking was pending the House and Senate passed the 
Energy Policy Act of 2005 (H.R. 6 and S. 10), signed by President Bush 
on August 8, 2005 (Pub. L. 109-58). Some provisions of the Energy 
Policy Act directly address matters raised in the proposed rule and 
comments on the proposed rule related to appeals under subpart H of 
these regulations. Specifically, the Energy Policy Act established new 
appeal deadlines: 30 days to publish a notice of appeal, then 160 days 
to develop a decision record, with provisions to stay the 160-day 
period for 60 days, and a 60-75 day period to issue a decision after 
the record is closed. These deadlines are shorter than NOAA proposed, 
but longer than the deadlines some commenters recommended in comments 
on the proposed rule. In addition, the Energy Policy Act proscribed the 
method of developing the Secretary's decision record for appeals of 
energy projects. These provisions were also similar to comments made on 
the proposed rule. The changes to subpart H in this final rule are 
necessary to ensure NOAA's regulations are in compliance with the 
Energy Policy Act and are within the scope of the provisions contained 
in the proposed rule and the public comments received on that proposal. 
Therefore, there was no need to re-propose subpart H for additional 
comment.

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

    The CZMA was enacted in 1972 to encourage States to be proactive in 
managing natural resources for their benefit and the benefit of the 
Nation. The CZMA recognizes a national interest in the resources of the 
coastal zone and in the importance of balancing the competing uses of 
those resources. The CZMA is a voluntary program for States. If a State 
elects to participate it must develop and implement a CMP pursuant to 
federal requirements. See CZMA section 306(d); 15 CFR part 923. State 
CMPs are comprehensive management plans that describe the uses subject 
to the management program, the authorities and enforceable policies of 
the management program, the boundaries of the State's coastal zone, the 
organization of the management program, and related State coastal 
management concerns. The State CMPs are developed with the 
participation of Federal agencies, industry, other interested groups 
and the public. Thirty-five coastal States are eligible to participate 
in the federal coastal management program. Thirty-four of the eligible 
States have federally approved CMPs. Illinois is not currently 
participating.
    The CZMA federal consistency provision is a cornerstone of the CZMA 
program and a primary incentive for States' participation. Federal 
consistency is a limited waiver of federal supremacy and authority. 
Federal agency activities that have coastal effects must be consistent 
to the maximum extent practicable with the federally approved 
enforceable policies of the State's CMP. In addition, non-federal 
applicants for federal authorizations and funding must be fully 
consistent with the enforceable policies of State CMPs. While States 
have negotiated changes to thousands of federal actions over the years, 
States have concurred with approximately 93%-95% of all federal actions 
reviewed.
    NOAA's federal consistency regulations were first promulgated in 
1979. In late 1996, OCRM began a process to comprehensively revise the 
regulations in consultation with Federal agencies, States, industry, 
Congress, and other interested parties. NOAA published a proposed rule 
in April 2000 and a final rule on December 8, 2000, which became 
effective on January 8, 2001. Most of the changes in the revised 2000 
regulations were dictated by changes in the CZMA or by specific 
statements in the accompanying legislative history. For instance, the 
2000 regulations added language concerning the scope of the federal 
consistency ``effects test.'' Prior to the CZMA 1990 amendments, 
Federal agency activities ``directly affecting'' the coastal zone were 
subject to federal consistency. The 1990 CZMA amendments broadened this 
language by dropping the word ``directly'' to include actions with 
``effects'' on any land or water use or natural resource of the coastal 
zone. Other changes to the original 1979 regulations improved and 
clarified procedures based on long-standing interpretive practice.
    There are several basic statutory tenets to federal consistency. 
These are:
    1. A federal action is subject to federal consistency if it has 
reasonably foreseeable coastal effects: the ``effects test.'' CZMA 
section 307.
    2. Federal actions cannot be categorically exempted from federal 
consistency--the effects test determines the application of the CZMA. 
CZMA section 307.
    3. There are no geographical boundaries to the application of the 
effects test. CZMA section 307.
    4. Early coordination between Federal agencies, applicants and 
States is encouraged. CZMA section 307.
    5. State federal consistency decisions must be based on enforceable 
policies that are approved by NOAA as part of the State's federally 
approved CMP. CZMA section 307.
    6. States must provide for public comment on their federal 
consistency decisions. CZMA sections 307; 306(d)(14).
    7. Federal development projects within a State's coastal zone are 
automatically subject to federal consistency. CZMA section 307(c)(2).
    8. The Federal agency determines whether a Federal agency activity 
has coastal effects, and, if there are coastal effects, must provide a 
consistency determination to the affected State(s) no

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later than 90 days before final approval unless the Federal agency and 
the State agree to a different schedule. CZMA section 307(c)(1).
    9. A Federal agency activity must be carried out in a manner 
consistent to the maximum extent practicable with the enforceable 
policies of a State's CMP. However, a Federal agency may proceed over a 
State's objection if the Federal agency provides the State a written 
statement showing that its activity is consistent to the maximum extent 
practicable. CZMA section 307(c)(1), (2).
    10. States and Federal agencies may seek mediation by the Secretary 
to resolve serious federal consistency disputes. CZMA section 307.
    11. An activity proposed by a non-Federal entity for a required 
federal license or permit (including an OCS oil and gas plan) is 
subject to federal consistency if the activity will have reasonably 
foreseeable coastal effects. CZMA section 307(c)(3)(A) and (B).
    12. An applicant for a required federal license or permit activity 
resulting in coastal effects, including OCS plans, must provide 
affected States with a consistency certification and necessary 
information and data supporting the certification. The State must 
object to or concur with the certification within six months or its 
concurrence is presumed. For review of OCS plans States must first 
provide a three-month notice as to the status of its review and if the 
three-month notice is not provided, then concurrence is presumed. CZMA 
section 307(c)(3)(A) and (B).
    13. An applicant can appeal the State's objection to the Secretary 
of Commerce, who can override the State's objection if the Secretary 
finds that the activity is consistent with CZMA objectives or is 
otherwise necessary in the interest of national security. The 
Secretary, in making a decision on an appeal, must provide a reasonable 
opportunity for detailed comments from the Federal agency involved and 
from the State. CZMA section 307(c)(3)(A).
    14. The authorizing Federal agency cannot approve a federal license 
or permit for an activity with reasonably foreseeable coastal effects 
unless the State concurs or the Secretary overrides the State's 
objection. CZMA section 307(c)(3)(A) and (B).
    15. State agencies and local governments applying for Federal funds 
for activities that have reasonably foreseeable coastal effects must 
provide the State with a consistency certification and the authorizing 
Federal agency cannot issue the funds unless the State concurs. 
Applicant agencies can also appeal State objections to the Secretary. 
CZMA section 307(d).
    16. Federal consistency does not supersede, modify or repeal 
existing laws applicable to Federal agencies. CZMA section 307(e).
    17. Federal consistency does not affect the requirements of the 
Clean Water Act or the Clean Air Act established by the Federal 
Government or the States and such requirements are part of the States' 
federally approved CMPs. CZMA section 307(f).
    18. The Secretary shall have 30 days to publish a notice of appeal, 
then 160 days to develop a decision record, and may stay the 160-day 
period for 60 days, and has a 60-75 day period to issue a decision 
after the record is closed. CZMA section 319.
    These are the statutory parameters of federal consistency. Since 
1979, NOAA's federal consistency regulations have interpreted CZMA 
requirements and provided reliable procedures and predictability for 
the implementation of federal consistency. Even though the Secretary 
has discretion in the establishment of procedures to implement the 
CZMA's statutory provisions, NOAA, in this final rule, as in the 2000 
rule, is not altering its long-standing interpretations of the major 
regulatory definitions set forth in the 1979 regulations, endorsed by 
Congress in the 1990 reauthorization of the CZMA, relied on in court 
decisions and as described in the 2000 rule. Consistent with the 
statute, the 2000 rule and court decisions, NOAA has retained these 
fundamental and well-established regulatory interpretations. The 
improvements contained in this final rule change the language of some 
regulatory provisions to provide greater clarity, transparency and 
predictability to federal consistency procedures, while retaining 
NOAA's long-standing interpretations of the CZMA. NOAA's regulations 
have operated well for the Federal and State agencies and permit 
applicants and the changes in this final rule will allow them to 
continue to do so more efficiently and effectively.

III. The Role of the CZMA in OCS and Other Energy Development

    The CZMA and the OCSLA interact both by explicit cross-reference in 
the statutes and through their regulatory implementation. Both statutes 
mandate State review of OCS oil and gas Exploration Plans (EP's) and 
Development and Production Plans (DPP's). Both statutes and their 
corresponding regulations provide a compatible and interrelated process 
for States to review EP's and DPP's.
    When MMS offers an OCS lease sale, it is a Federal agency activity. 
If MMS determines that the lease sale will have reasonably foreseeable 
coastal effects, then MMS must provide a CZMA consistency determination 
to the affected State(s) examining whether the lease sale is 
``consistent to the maximum extent practicable'' with the enforceable 
policies of the State's CMP. If the State objects, MMS may still 
proceed with the lease sale if MMS' administrative record and the OCSLA 
show that it is fully consistent or consistent to the maximum extent 
practicable. The ability of a Federal agency to proceed over a State's 
objection to a proposed Federal agency activity existed prior to the 
2000 rule, was further clarified in the 2000 rule and remains unchanged 
by this final rule.
    The CZMA requires that when a lessee seeks MMS approval for its EP 
or DPP, the lessee must certify to the affected State(s) that the 
activities authorized by the licenses or permits described in the plans 
are fully consistent with the enforceable policies of the State's CMP. 
If the State objects to the consistency certification, then MMS is 
prohibited from approving the license or permits described in detail in 
the EP or DPP. The lessee may appeal to the Secretary of Commerce to 
override the State objection and allow MMS to issue its approvals 
described in the plan. When deciding an appeal, the Secretary balances 
the national interest in energy development, among other elements, 
against adverse effects on coastal resources and coastal uses.
    The CZMA and NOAA's regulations ensure that the national interest 
in the CZMA objectives are furthered. These safeguards are discussed 
below using OCS oil and gas activities as illustrations.
    The ``Effects Test.'' As discussed above, federal consistency 
review is triggered only when it is reasonably foreseeable that the 
federal action will have coastal effects, referred to as the ``effects 
test.'' Consistency does NOT apply to every action or authorization of 
a Federal agency, or of a non-federal applicant for federal 
authorizations.
    For OCS oil and gas lease sales, MMS determines whether coastal 
effects are reasonably foreseeable and provides affected States with a 
consistency determination. For example, MMS has established the Eastern 
Planning, Central Planning and Western Planning Areas for the Gulf of 
Mexico. MMS may determine that lease sales in the Eastern Planning Area 
will not have reasonably foreseeable effects on State coastal uses or 
resources within the Central Planning Area. Therefore, MMS may choose 
not to provide States adjacent to the Central Planning Area with a 
consistency

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determination. MMS could also determine that a lease sale held far 
offshore in the Eastern Planning Area would not have foreseeable 
coastal effects on Florida or Alabama coastal uses or resources.
    For OCS EP's and DPP's the CZMA mandates State consistency review. 
However, as with Federal agency activities, a coastal State's ability 
to review the Plans stops at the point where coastal effects are not 
reasonably foreseeable. Whether coastal effects are reasonably 
foreseeable is a factual matter to be determined by the State, the 
applicant and MMS on a case-by-case basis.
    If a State wanted to ensure that OCS EP's and DPP's located in a 
particular offshore area would be subject to State CZMA review 
automatically, a State could, if NOAA approved, amend its CMP to 
specifically describe a geographic location outside the State's coastal 
zone where such plans would be presumed to affect State coastal uses or 
resources. See 15 CFR 930.53. Or, if a State wanted to review an EP or 
DPP where the applicant and/or MMS have asserted that coastal effects 
are not reasonably foreseeable, the State could request approval from 
NOAA to review such plans on a case-by-case basis. See 15 CFR 930.54 
(unlisted activities). In both situations, NOAA would approve only if 
the State made a factual demonstration that effects on its coastal uses 
or resources are reasonably foreseeable as a result of activities 
authorized by a particular EP or DPP. Similarly, where the applicant or 
FERC has asserted that a proposed project located outside the coastal 
zone or outside a geographic location described in a state's management 
program pursuant to 15 CFR 930.53, will not have reasonably foreseeable 
coastal effects, NOAA would not approve a State request to review the 
project unless the State made a factual demonstration that the project 
has reasonably foreseeable coastal effects. This final rule does not 
change that process.
    NOAA Approval of State CMPs. NOAA, with substantial input from 
Federal agencies, local governments, industry, non-governmental 
organizations and the public, must approve State CMPs and their 
enforceable policies, including subsequent changes to a State's CMP. 
NOAA's required approval ensures consideration of Federal agency 
activities and federal license or permit activities, including OCS 
plans. For example, NOAA has denied State requests to include policies 
in its federally approved CMP that would prohibit all oil and gas 
activities off its coast because such policies conflict with the CZMA 
requirements to consider the national interest in energy development, 
see CZMA sections 303(2)(D) and 306(d)(8), and to balance resource 
protection with coastal uses of national significance.
    Consistent to the Maximum Extent Practicable and Fully Consistent. 
For Federal agency activities under CZMA section 307(c)(1), such as OCS 
Lease Sales, a Federal agency may proceed with the activity over a 
State's objection if the Federal agency determines its activity is 
consistent to the maximum extent practicable with the enforceable 
policies of the State's CMP. This means that even if a State objects, 
MMS may proceed with an OCS lease sale when MMS provides the State with 
the reasons why the OCSLA and MMS's administrative record supporting 
the lease sale decisions prohibit MMS from fully complying with the 
State's enforceable policies. MMS could also proceed if it determined 
that its activity was fully consistent with the State's enforceable 
policies. Under NOAA's regulations, the consistent to the maximum 
extent practicable standard also allows Federal agencies to deviate 
from State enforceable policies and CZMA procedures due to unforeseen 
circumstances and emergencies. This final rule does not change the 
application of the consistent to the maximum extent practicable 
standard.
    Appeal to the Secretary of Commerce. For non-federal applicants for 
federal authorizations, such as OCS EP and DPP approvals and FERC 
certificates under the Natural Gas Act or licenses under the Federal 
Power Act, the applicant may appeal a State's objection to the 
Secretary of Commerce pursuant to CZMA sections 307(c)(3) and (d). The 
Secretary overrides the State's objection if the Secretary finds that 
the activity is consistent with the objectives or purposes of the CZMA 
or is necessary in the interest of national security. If the Secretary 
overrides the State's objection, then the Federal agency may issue its 
authorization.
    Since 1978, MMS has approved over 10,600 EP's and over 6,000 DPP's. 
States have concurred with nearly all of these plans. In the 30-year 
history of the CZMA, there have been only 18 instances where the 
offshore oil and gas industry appealed a State's federal consistency 
objection to the Secretary of Commerce. The Secretary issued a decision 
in 14 of those cases. The Secretary did not issue a decision for the 
other 4 OCS appeals because the appeals were withdrawn due to 
settlement negotiations between the State and applicant or a settlement 
agreement between the Federal Government and the oil companies involved 
in the projects. Of the 14 decisions (1 DPP and 13 EP's), there were 7 
decisions to override the State's objection and 7 decisions not to 
override the State.
    Since the 1990 amendments to the CZMA, there have been several OCS 
oil and gas lease sales by MMS and only one State objection. In that 
one objection OCRM determined that the State's objection was not based 
on enforceable policies, MMS determined that it was consistent to the 
maximum extent practicable with the State's CMP, and the lease sale 
proceeded. Thus, all lease sales offered by MMS since the 1990 
amendments have proceeded after State federal consistency review. In 
addition, since 1990, there have been six State objections to OCS 
plans. In three of those cases, the Secretary did not override the 
State's objection. In two of the cases the Secretary did override the 
State allowing MMS approval of the permits described in the plans, and 
in one case the State objection was withdrawn as a result of a 
settlement agreement between the Federal Government and the oil 
companies involved in the project.
    With respect to FERC jurisdictional matters, there have been two 
State objections in the past three years to applications for 
certificates of public convenience and necessity to construct and 
operate natural gas pipelines. In one of these cases, the Secretary 
ruled the project did not meet the requirements for overriding State 
objections. In the other, the Secretary overrode State objections and 
ruled the project could proceed.
    Presidential Exemption. After any appealable final judgement, 
decree, or order of any Federal court, the President may exempt from 
compliance the elements of a Federal agency activity that are found by 
a Federal court to be inconsistent with a State's CMP, if the President 
determines that the activity is in the paramount interest of the United 
States. CZMA Sec.  307(c)(1)(B). This exemption was added to the 
statute in 1990 and has not yet been used.
    Mediation. Mediation has been used to resolve federal consistency 
disputes and allowed federal actions to proceed. In the event of a 
serious disagreement between a Federal agency and a State, either party 
may request that the Secretary of Commerce mediate the dispute. NOAA's 
regulations also provide for OCRM mediation to resolve disputes between 
States, Federal agencies, and other parties.

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IV. Explanation of Proposed Changes to the Federal Consistency 
Regulations

    Rule Change 1: Sec.  930.1(b) and (c) Overall Objectives. This 
change moves the parenthetical with the description of ``federal 
action'' from Sec.  930.11(g) to the first instance of the term in 
Sec.  930.1(b). Federal action is used throughout the regulations to 
refer, when appropriate, to subparts C, D, E, F and I. The final rule 
adds a statement to Sec.  930.1(c) to encourage states to participate 
in the administrative processes of federal agencies. This would 
strengthen the early coordination objectives of the CZMA and enhance 
the ability of federal agencies to address the enforceable policies of 
a state's management program.
    Rule Change 2: Sec.  930.10 Definitions Table of Contents--
Definition of Failure Substantially to Comply with an OCS Plan. The 
reference to section 930.86(d) is incorrect. There was no 930.86(d). 
The reference is now to 930.85(c). There is no change from the proposed 
rule.
    Rule Change 3: Sec.  930.11(g) Definitions--Effect on any coastal 
use or resource (coastal effects). This change moves the parenthetical 
for ``federal actions'' to the first instance of federal action in 
Sec.  930.1(b) and inserts more specific language for Federal agency 
activity and federal license or permit activity. There is no change 
from the proposed rule.
    Rule Change 4: Sec.  930.31(a) Federal agency activity. This change 
does not alter the current application of the definition of Federal 
agency activity, but clarifies that a ``function'' by a Federal agency 
refers to a proposal for action. The examples included are also re-
written to emphasize that a proposed action is an essential element of 
the definition. In response to commenters' concerns that Federal 
agencies may view this change as a basis to exempt some activities from 
the effects test, NOAA reiterates that this change does not affect the 
application of the effects test. Congress amended the CZMA in 1990 to 
make it clear that no federal actions are categorically exempt from 
federal consistency and that the determination of whether consistency 
applies is a case-by-case analysis of whether a Federal agency activity 
will have reasonably foreseeable effects on any coastal use or 
resource. See H.R. Conf. Rep. No. 964, 101st Cong., 2d Sess. 968-975, 
971; 136 Cong. Rec. H 8076 (Sep. 26, 1990); and 65 FR 77125 (December 
8, 2000). The change to this section is consistent with Congressional 
directives.
    It has always been NOAA's view that federal consistency applies to 
proposals to take an action or initiate a series of actions that have 
reasonably foreseeable coastal effects, and not to agency deliberations 
or internal tasks related to a proposed agency action. See e.g., 
sections in NOAA's 2000 regulations that refer to ``proposed'' 
activities: 15 CFR 930.36(a), 930.35, 930.39(a), 930.46(a), 930.1(c), 
930.11(d). See also discussion in the preamble to the 2000 final rule: 
65 FR 77130, Col. 2-3 (December 8, 2000). Thus, a planning document 
that explores possible projects or priorities for an agency is not a 
Federal agency activity, as there is no action proposed. However, a 
Federal agency plan or rulemaking proposing a new action is a Federal 
agency activity subject to the effects test.
    Not all ``planning'' or ``rulemaking'' activities are subject to 
federal consistency since such planning or rulemaking may merely be 
part of the agency's deliberative process. Likewise, the plan or 
rulemaking may not propose an action with reasonably foreseeable 
coastal effects and would therefore not be subject to federal 
consistency. If, however, an agency's administrative deliberations 
result in a plan to take an action, or a rulemaking proposing an action 
or a directive, then that plan or rulemaking could be subject to 
federal consistency if coastal effects are reasonably foreseeable. For 
example, MMS produces a 5-year Leasing Program ``Plan,'' pursuant to 
the OCSLA. MMS has informed NOAA that the 5-Year Program Plan is a 
preliminary activity that does not set forth a proposal for action and 
thus, coastal effects cannot be determined at this early stage. 
Accordingly, MMS' proposal for action would occur when MMS conducts a 
particular OCS oil and gas lease sale.
    Once a Federal agency proposes an action, it is the proposal for 
action which is the subject of the consistency review. The State only 
reviews the proposed action and does not review all tasks, ministerial 
activities, meetings, discussions, and exchanges of views incidental or 
related to a proposed action, and does not review other aspects of a 
Federal agency's deliberative process. In addition, Federal agency 
activities do not include interim or preliminary activities incidental 
or related to a proposed action for which a consistency determination 
has been or will be submitted and which do not make new commitments for 
actions with coastal effects. Such interim or preliminary activities 
are not independent actions subject to federal consistency review.
    For example, where a Federal agency has not yet submitted a 
consistency determination to a State or where a State has already 
concurred with a Federal agency's consistency determination for a 
proposed action, planning activities related to the agency's 
deliberative process may occur before or after the State's federal 
consistency review that are incidental to the proposed action. In these 
cases the interim or preliminary activity would not be subject to 
federal consistency review.
    In the OCS oil and gas context, examples of interim or preliminary 
activities which are not Federal agency activities include the 
publication of OCS 5-Year programs, as discussed above; or rulemakings 
establishing administrative procedures for OCS-related activities that 
do not affect coastal uses or resources (e.g., rulemaking prescribing 
the completion and submission of forms). Consistent with the Ninth 
Circuit's decision in California ex rel. Cal. Coastal Comm'n v. Norton, 
150 F. Supp.2d 1046 (N.D. Cal. 2001), aff'd, 311 F.3d 1162 (9th Cir. 
2002), MMS action to grant or direct suspensions of OCS operations or 
production is an interim or preliminary activity and not a Federal 
agency activity subject to federal consistency when the lease 
suspension would not have reasonably foreseeable coastal effects. If 
the State had previously reviewed any reasonably foreseeable coastal 
effects of a lease suspension during the State's review of the lease 
sale, EP or DPP for federal consistency, then the lease suspension 
would not be the subject of a new consistency review. In this sense, 
the lease suspension is an interim or preliminary activity. See NOAA's 
response to comments 25 and 26 for further discussion on lease 
suspensions and California v. Norton and NOAA's conclusion that in all 
foreseeable instances, lease suspensions would not be subject to 
federal consistency review since (1) in general, they do not authorize 
activities with coastal effects, and (2) if they did contain activities 
with coastal effects, the activities and coastal effects would be 
covered in a State's review of a previous lease sale, an EP or a DPP. 
If a State believes that a particular lease suspension should be 
subject to federal consistency, the State should notify MMS. MMS could 
(1) agree with the State that coastal effects are reasonably 
foreseeable and provide the State with a consistency determination; (2) 
provide the State with a negative determination pursuant to 15 CFR 
930.35; and/or (3) determine that the lease suspension is an interim 
activity that does not propose a new action with coastal effects.
    In another example of what is subject to State consistency review, 
consider

[[Page 793]]

the situation when the Navy proposes to construct a pier. The project 
involves compliance with numerous federal laws, e.g., National 
Environmental Policy Act (NEPA) documents, Endangered Species Act (ESA) 
section 7 consultation, a Rivers and Harbors Act section 10 permit from 
the Army Corps of Engineers (Corps), contracts with a construction 
company to build the pier, etc. These various authorizations and 
activities related to the Navy's proposal to build the pier are not 
separate Federal agency activities subject to federal consistency. The 
Federal agency activity for purposes of 15 CFR 930.31 is the proposal 
to build the pier. Under 15 CFR 930.36(b), the Federal agency 
determines when it has sufficient information to provide the State with 
a consistency determination. For instance, in this example of the Navy 
pier, the Navy could conclude that under Navy procedures the pier is 
not a proposed action until the proposed activity requires analysis 
under NEPA. The State reviews only the pier proposal. The State uses 
the information provided by the Navy, pursuant to 15 CFR 930.39(a), to 
evaluate coastal effects and determine consistency with the State's 
enforceable policies. The State may request, or the Navy may provide, 
the Corps section 10 permit application, or the Biological Opinion 
under the ESA or the NEPA document, in addition to the Navy's 
consistency determination. Information in these documents may be used 
as part of the necessary information required by 15 CFR 930.39, but 
they are not required to be part of the information required in Sec.  
930.39(a) and are not reviewed as the proposed Federal agency activity 
for consistency.
    NOAA has changed ``event(s)'' to ``activity(ies)'' since the term 
``activities'' more closely follows the statute and NOAA's regulations.
    The final rule makes minor changes from proposed rule. There is no 
change in meaning from the proposed rule. The first sentence in this 
section in the proposed rule language was grammatically awkward. The 
final rule merely breaks the first sentence into two sentences and 
makes minor grammatical corrections to the second sentence.
    Rule Change 5: Sec.  930.31(d) Federal agency activity--General 
Permits. In the 2000 rule, NOAA acknowledged the hybrid nature of 
general permits and gave Federal agencies the option of issuing a 
general permit under either CZMA Sec.  307(c)(1) (Federal agency 
activity) or CZMA Sec.  307(c)(3)(A) (federal license or permit 
activity), even though NOAA has opined that, for CZMA purposes, a 
general permit was more appropriately treated as a Federal agency 
activity. In this final rule, NOAA has removed the option to allow 
Federal agencies to treat their general permits as a federal license or 
permit activity for purposes of complying with CZMA Sec.  307 and 15 
CFR part 930. If a general permit is proposed by a Federal agency and 
coastal effects are reasonably foreseeable, then the general permit is 
a Federal agency activity under CZMA Sec.  307(c)(1) and 15 CFR part 
930, subpart C. NOAA's determination that general permits are Federal 
agency activities and not federal license or permit activities under 
CZMA Sec.  307 is for CZMA purposes only and is based on the reasons 
described below, which are specific to the requirements of the CZMA. 
Therefore, this determination does not affect the status of general 
permits under the Administrative Procedure Act or under any other 
federal statute. For example, while general permits issued under the 
Clean Water Act are Federal agency activities under these revised 
regulations, NOAA recognizes that EPA continues to consider those same 
permits to be licenses or permits for purposes of the APA and for 
purposes of State certification under Clean Water Act section 401.
    There are several reasons why a general permit should not be a 
federal license or permit activity under CZMA Sec.  307. Under NOAA's 
regulations, Federal agencies are not ``applicants'' within the meaning 
of 15 CFR 930.52. See 65 FR 77145 (col 1&2) (Dec. 8, 2000). Even if 
NOAA were to change its regulations to allow a Federal agency to be an 
``applicant,'' it is not clear how the Federal agency could appeal the 
State's objection to the Secretary of Commerce.
    Further, even if a general permit were treated as a federal license 
or permit activity for CZMA Sec.  307 purposes and a State objected, it 
would be problematic for the potential users of a general permit to 
appeal the State's objection since there would be no case specific 
factual inquiry on which the Secretary could base an appeal decision.
    Other changes clarify that if a State objects to a consistency 
determination for a general permit, the general permit would, pursuant 
to the consistent to the maximum extent practicable standard as 
described in 15 CFR 930.32, still be in legal effect for that State, 
but that 15 CFR part 930, subpart C of the consistency regulations 
would no longer apply. Thus, a State objection to a consistency 
determination for the issuance of a general permit would alter the form 
of CZMA compliance required, transforming the general permit into a 
series of case-by-case CZMA decisions and requiring an individual who 
wants to use the general permit to submit an individual consistency 
certification to the State agency in compliance with 15 CFR part 930, 
subpart D. However, all provisions of the license or permit sections 
would apply, including the ``listing,'' ``unlisted,'' and ``geographic 
location description'' requirements in Sec. Sec.  930.53 and 930.54. 
Once the State concurs with the certification, then an individual user 
may undertake the activity(ies) authorized by the general permit in 
accordance with the State's concurrence. If the State objects to the 
individual user's (now an applicant under subpart D) consistency 
certification, then the individual cannot undertake the activity(ies) 
authorized by the general permit, unless the individual user (now the 
applicant) appeals the State's objection to the Secretary of Commerce, 
pursuant to subpart H, and the Secretary overrides the State's 
objection.
    NOAA reiterates that if a State concurs with a consistency 
determination for a general permit, then the State has no authority 
under the CZMA to review individual uses of the general permit under 
subpart C or D. For example, in the OCS oil and gas context, if a State 
has concurred with the Environmental Protection Agency's consistency 
determination for an OCS National Pollutant Discharge Elimination 
System (NPDES) general permit under the Clean Water Act, then the State 
may not review the use of the NPDES general permit for consistency at 
the OCS EP or DPP stage of reviews or when a facility files a notice of 
intent to be covered by a general permit under the NPDES regulations. 
If, however, a State objects to the OCS NPDES general permit, then each 
user, or ``applicant'' in CZMA parlance, must file a consistency 
certification with the State pursuant to subpart D, and obtain the 
State's concurrence before it may undertake the activities authorized 
by the NPDES general permit.
    Minor editorial changes were made from the proposed rule with no 
change in meaning. The term ``approval'' was replaced with ``issuance'' 
since issuance more accurately describes the distinction between a 
general permit and case-by-case permits. The last sentence was not 
clear regarding when someone had to provide the State with a 
certification after a State objected to a general permit. The change 
provides a clearer statement that only applicants and persons who want 
to use a general permit would have to provide the certification, and 
not all potential users in the State. The general permit section

[[Page 794]]

would only apply to subpart D and E applicants.
    Rule Change 6: Sec.  930.35(d) General negative determination. 
Section 930.35(d) is changed to (e) and a new section 930.35(d) is 
added. The general negative determination (General ND) has been 
developed as an administrative convenience when Federal agencies 
undertake repetitive activities that, either on an individual, case-by-
case basis or cumulatively, do not have coastal effects. The General ND 
does not alter the factual basis required for federal consistency 
reviews.
    A General ND does not alter the requirement for Federal agencies to 
provide consistency determinations to coastal States when there are 
reasonably foreseeable coastal effects, the ``effects test.'' The 
Federal agency must still make an analysis of coastal effects for the 
repetitive activities, individually and cumulatively. The General ND is 
an analogue to the existing General consistency determinations (15 CFR 
930.36(c)) (which is for repetitive activities which do have cumulative 
effects). For example, a General ND may apply to activities far away 
from the coastal zone because coastal effects are not foreseeable, but 
might not apply to the same set of activities if proposed in or near 
the coastal zone where the proximity of the activities to coastal uses 
or resources may have coastal effects and require a General consistency 
determination or individual consistency determination.
    A Federal agency is not required to use a General ND. If any one of 
the conditions for a negative determination are met, then a Federal 
agency could choose to provide the State with either an individual 
Negative Determination, or if applicable, a General ND. The conditions 
for a Negative Determination are when a Federal agency determines that 
its proposed action will not have coastal effects and the activity is 
(1) listed in the State's program or the State has notified the Federal 
agency that it believes coastal effects are reasonably foreseeable, (2) 
the activity is the same as or is similar to activities for which 
consistency determinations have been prepared in the past, or (3) the 
Federal agency undertook a thorough consistency assessment and 
developed initial findings on the coastal effects of the activity. See 
15 CFR 930.35(a)(1)-(3).
    If a State subsequently finds that a General ND may no longer be 
applicable, the State agency may request that the Federal agency 
reassess the General ND. In the case of a disagreement between the 
State and the Federal agency, the conflict resolution provisions of 
subpart G are available.
    A minor editorial change was made from the proposed rule. NOAA 
replaced the word ``specified'' with ``specific.''
    Rule Change 7: Sec.  930.37 Consistency determinations and National 
Environmental Policy Act (NEPA) requirements. The change clarifies 
information needs related to NEPA documents by providing more specific 
direction of the long-standing understanding of the distinction between 
NEPA and CZMA. Federal agencies are required to submit information to 
support a consistency determination, pursuant to the requirements in 
Sec.  930.39, and may do so in any manner it chooses. Thus, even though 
a Federal agency may provide a NEPA document to support its consistency 
determination, States cannot require Federal agencies to do so.
    Rule Change 8: Sec.  930.41(a) State agency response. This change 
clarifies when the State's consistency review period begins for Federal 
agency activities. The changes provide additional clarification that 
the State's determination of whether the information provided by the 
Federal agency pursuant to 15 CFR 930.39(a) is complete, is not a 
substantive review. Instead, it is a ``checklist'' review to see if the 
description of the activity, the coastal effects, and the evaluation of 
the State's enforceable policies are included in the submission to the 
State agency. If the items required by Sec.  930.39(a) are included, 
then the 60-day review starts. This review does not determine or 
evaluate the substantive adequacy of the information. The adequacy of 
the information is a component of the State's substantive consistency 
review which occurs during the 60-day review period.
    To help resolve disputes as to when the 60-day review period 
started when a State later claims that required information was not 
provided, NOAA replaced the requirement to ``immediately'' notify the 
Federal agency that information required by Sec.  930.39(a) is missing 
with a 14-day notification period. If the State agency has not notified 
the Federal agency of missing information within this 14-day period, 
then the State waives the ability to make that claim and the 60-day 
review period is deemed to have started when the State received the 
initial determination and information. This means that State agencies 
should pay close attention to the date they receive consistency 
determinations. States retain the ability to conduct a full 60-day 
review (or 75-day review with extension), request additional 
information during the State's 60-day review, or object for lack of 
information at the end of the 60-day review period.
    A minor editorial change was made from the proposed rule. The last 
sentence was grammatically awkward so it was broken into two sentences, 
with no change in meaning.
    Rule Change 9: Sec.  930.51(a) Federal license or permit. The 
language changes emphasize and clarify NOAA's long-standing view of the 
elements needed determine that an authorization from a Federal agency 
is a ``federal license or permit'' within the meaning of the CZMA and 
therefore subject to State federal consistency review. First, Federal 
law must require that the applicant obtain the federal authorization. 
Second, the purpose of the federal authorization is to allow a non-
federal applicant to conduct a proposed activity. Third, the activity 
proposed must have reasonably foreseeable effects on a State's coastal 
uses or resources, and fourth, the proposed activity was not previously 
reviewed for federal consistency by the State agency (unless the 
authorization is a renewal or major amendment pursuant to Sec.  
930.51(b)). All four of these elements are required to trigger federal 
consistency review.
    For CZMA federal consistency purposes, ``federal license or 
permit'' does not include federal authorizations for activities that do 
not have coastal effects. Federal consistency does not apply to a 
required federal certification of an applicant's ministerial paperwork 
which is merely incidental or related to an activity that either does 
not have coastal effects or an activity that is already subject to 
federal consistency review. Ministerial certifications which are merely 
incidental to an activity undertaken by the applicant and which has 
already or will soon be the subject of a full federal consistency 
review are not federal license or permit activities for subpart D 
purposes. The following examples are authorizations which are not a 
``federal license or permit'' under the CZMA:

    Example 1. MMS makes certain determinations such as the 
qualification of bidders for OCS lease sales, bonding 
certifications, certifications of financial responsibility, 
approvals of departures from regulations in order to enhance safety.
    Example 2. A Federal agency certifies equipment to be used for 
an activity where the activity has already been the subject of a 
consistency review.
    Example 3. MMS issuance of ``Notification requirements'' which 
merely require the operator to notify MMS of an activity and where 
MMS' approval is not required are not subject to federal 
consistency.

[[Page 795]]

    Example 4. When the Coast Guard merely reviews the 
transportation plan of an energy company transporting spent nuclear 
waste by ship, there is no ``license or permit'' under CZMA section 
307(c)(3)(A) because Coast Guard authorization is not required by 
Federal law. See New Jersey v. Long Island Power Authority, 30 F.3d 
403 (3d Cir. 1994) (Coast Guard review of vessel transportation 
plans was not a Federal agency activity or federal license or permit 
activity).

    However, a lease issued by a Federal agency to a non-federal entity 
which is the only federal authorization for the use of the federal 
property for a non-federal activity is a ``federal license or permit,'' 
pursuant to section 307(c)(3)(A), if the applicant is required to 
obtain a lease from the Federal agency for use of the Federal property, 
the proposed activity will have coastal effects, and the State did not 
previously review a required federal authorization for the same 
activity.
    Thus, the language changes to the rule ensure that the definition 
of ``federal license or permits'' is not overly-inclusive or beyond the 
commonly understood meaning of license or permit, while at the same 
time retaining the phrase ``any required authorization'' to capture any 
form of federal license or permit that is: (1) Required by Federal law, 
(2) authorizes an activity, (3) the activity to be authorized has 
reasonably foreseeable coastal effects, and (4) the authorization is 
not incidental to a federal license or permit previously reviewed by 
the State. Thus, the removal of the forms of approvals listed in the 
current language does not exclude any category of federal 
authorizations from federal consistency, but instead emphasizes that 
any form of federal authorization must have the required elements to be 
considered a ``federal license or permit'' for CZMA purposes.
    Factual disputes concerning whether a federal authorization is 
subject to federal consistency can be addressed through NOAA's 
procedures for the review of listed or unlisted federal license or 
permit activities. 15 CFR 930.53 and 930.54.
    The effects test language previously at the end of the definition 
is deleted as superfluous since subpart C contains the effects analysis 
for Federal agency activities.
    A minor editorial change was made from the proposed rule with no 
change in meaning. The proposed language was somewhat redundant and 
awkward. NOAA moved the end of the first sentence to the beginning, 
providing a clearer flow for the sentence. In addition, a minor 
correction was made to add the phrase ``federal license or permit'' to 
the second sentence.
    Rule Change 10: Sec.  930.51(e) Substantially different coastal 
effects. Section (e) was added in the 2000 rule to emphasize that 
determining whether the effects from a renewal or major amendment are 
substantially different is a case-by-case factual determination 
requiring the input of all parties. NOAA used the phrase ``the opinion 
of the State agency shall be accorded deference,'' (emphasis added) to 
help ensure that the State agency has the opportunity to review coastal 
effects which may be substantially different than previously reviewed. 
NOAA expected that the parties would discuss the matter and agree 
whether effects are substantially different. NOAA did not intend to use 
the phrase to have the State agency make the decision on whether 
coastal effects are substantially different. Thus, to provide 
clarification, NOAA has amended the section so that the Federal 
permitting agency makes this determination after consulting with the 
State and applicant. If a State disagrees with a Federal agency's 
determination concerning substantially different coastal effects, then 
the State could either request NOAA mediation or seek judicial review 
to resolve the factual dispute.
    A minor editorial change was made from the proposed rule breaking 
the second sentence into two sentences, with no change in meaning.
    Rule Change 11: Sec.  930.58(a)(1) Necessary data and information. 
This change provides more specific information requirements for federal 
license or permit activities. The purpose of Sec.  930.58 is to 
identify the information needed to start the six-month consistency 
review period and to the extent possible, identify the information 
needed by the State agency to make its concurrence or objection. Thus, 
the more specific the information requirements are, the more 
predictable and transparent the process.
    Section 930.58(a)(1) is reorganized to clarify that ``necessary 
data and information'' means (1) a copy of the federal application, (2) 
all supporting material provided to the Federal agency in support of 
the application, (3) information that is required and specifically 
described in the State's management program, and (4) if not included in 
1 or 2, a detailed description of the activity, its associated 
facilities and the coastal effects of the activity. The evaluation of 
the State's enforceable policies is retained under Sec.  930.58(a)(3).
    NOAA removed the clause in Sec.  930.58(a)(1) that said ``and 
comprehensive data and information sufficient to support the 
applicant's consistency certification.'' The language removed is viewed 
as ambiguous because it could refer to the other paragraphs in this 
section or to other undefined information, and could create uncertainty 
in the determination of when the six-month review period starts. 
Section 930.58(a)(2) allows the State to describe in its CMP the 
necessary specific information in addition to that required by NOAA 
regulations.
    These changes do not affect a State's ability to specifically 
describe ``necessary data and information'' in the State's federally 
approved management program (Sec.  930.58(a)(2)), or to request 
additional information during the six-month review period (Sec.  
930.60(c)), or to object for lack of information (Sec.  930.63(c)).
    There is no change from the proposed rule.
    Rule Change 12: Sec.  930.58(a)(2) Necessary data and information 
(State permits). In the 2000 rule, NOAA allowed States to describe 
State permits as necessary data and information. Unfortunately, 
implementation of this provision revealed the potential for States to 
require applicants to obtain State permit approval before the six-month 
consistency review period could begin. This could result in a State 
consistency decision before the six-month review period even begins, 
thus potentially defeating the statutory time frames in the CZMA. In 
addition, the public comment on federal consistency could be rendered 
moot because necessary State approvals would already have been 
obtained. NOAA did not intend the 2000 rule to create a potential 
conflict between the statutorily defined six-month consistency review 
process and State permit requirements. While it may be appropriate or 
necessary for a State to require completed State permit applications as 
necessary data and information, it is not appropriate to require a 
State approved or issued permit. Therefore, NOAA has removed ``State 
permits'' as eligible necessary data and information requirements, but 
has retained State permit applications. This change, as described in 
the proposed rule, contemplated ``complete'' State permit applications, 
and NOAA has included ``complete'' in the final rule. When appropriate, 
the applicant and the State could agree, pursuant to Sec.  930.60, to 
stay the six-month period until a specific date to allow for issuance 
of the State permit. A State, at the end of the six-month review period 
may, of course, object if the applicant has not yet received the State 
permit.

[[Page 796]]

    In addition, NOAA added language to clarify that when a Federal 
statute requires a Federal agency to initiate the CZMA review prior to 
its completion of NEPA compliance, NEPA documents will not be 
considered necessary data and information pursuant to Sec.  
930.58(a)(2). For example, when the operation of a Federal statute 
precludes a Federal agency from delaying the start of the CZMA process 
because the NEPA document is not complete, NEPA documents listed in a 
State's management program cannot be considered necessary data and 
information. This issue has come to light in the case of the Outer 
Continental Shelf Lands Act (OCSLA). See explanation of rule change 15: 
Sec.  930.76(a) and (b) Submission of an OCS plan, necessary data and 
information and consistency certification. In addition, neither the 
CZMA nor NEPA require the Federal agency to include CZMA consistency 
determination information in NEPA documents. Therefore, States cannot 
delay the start of the CZMA review period because CZMA consistency 
information is not included in a NEPA document.
    Two minor changes were made from the proposed rule. As discussed in 
the preamble to the proposed rule and in this final rule NOAA intended 
the rule to refer to ``completed'' State permit applications. Thus, 
``completed'' is added to the third sentence. The second change is the 
language regarding NEPA documents discussed above.
    Rule Change 13: Sec.  930.60 Commencement of State agency review. 
These changes clarify when the State's six-month review period begins 
for federal license or permit activities. The changes clarify that the 
State's determination of whether the information provided by the 
applicant pursuant to 15 CFR 930.58 is complete is not a substantive 
review. Instead it is a ``checklist'' review to see if the application, 
description of the activity, the coastal effects, the evaluation of the 
State's enforceable policies, and specific information described in the 
State's federally approved program are included in the submission to 
the State agency. If the items required by Sec.  930.58 are included, 
then the six-month review starts. This review does not determine or 
evaluate the substantive adequacy of the information. The adequacy of 
the information is a component of the State's substantive review which 
occurs during the six-month review period. The change also further 
clarifies that a State may not stop, stay or otherwise alter the 
consistency review period once it begins, unless the applicant agrees 
in writing to stay the review period until a specific end date. NOAA 
deleted the word ``extend'' to avoid potential conflicts with the six-
month period set by statute. Thus, the State agency and applicant can 
stay or ``toll'' the running of the six-month review period for an 
agreed upon time ending on a specific date, after which the remainder 
of the six-month review period would continue. Such agreements must be 
set forth in writing so that it is clear there is a meeting-of-the-
minds between the State and the applicant. Ideally, the written 
agreement should be one document that both parties sign. The written 
agreement for a stay must refer to a specific end date and should not 
be written