Coastal Zone Management Act Federal Consistency Regulations, 75864-75865 [E6-21615]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 71, Number 243 (Tuesday, December 19, 2006)]
[Rules and Regulations]
[Pages 75864-75865]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-21615]


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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; technical corrections.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) 
published a document (Final Rule) in the Federal Register on January 5, 
2006, effective on February 6, 2006, revising the federal consistency 
regulations under the Coastal Zone Management Act of 1972 (CZMA). That 
document referenced an incorrect cross-reference in Sec.  930.125(b) 
and unnecessarily required the submission of multiple copies of some 
documents in Sec. Sec.  930.127(d)(1) and 930.127(i)(2). This document 
amends the final regulations by revising these sections.

DATES: Effective December 19, 2006.

FOR FURTHER INFORMATION CONTACT: David W. Kaiser, Senior Policy 
Analyst, Office of Ocean and Coastal Resource Management/NOAA, Phone: 
603-862-2719, Fax: 603-862-3957.

ADDRESSES: Office of Ocean and Coastal Resource Management/NOAA, c/o 
Coastal Response Research Center, University of New Hampshire, 35 
Colovos Road, 246 Gregg Hall, Durham, NH 03824-3534.
    Headquarter and Official Mailing/Filing Address: Coastal Programs 
Division, Office of Ocean and Coastal Resource Management/NOAA, 1305 
East-West Hwy., 11th Floor (N/ORM3), Silver Spring, MD 20910, Fax: 301-
713-4367.
    Additional information on federal consistency can be located at 
OCRM's federal consistency web page: https://coastalmanagement.noaa.gov/
consistency/welcome.html.

SUPPLEMENTARY INFORMATION:

Background

    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 in 
program development.
    The CZMA federal consistency provision is a cornerstone of the CZMA 
program and a primary incentive for States' participation. 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. States either concur with or object 
to a federal agency's consistency determination, under 15 CFR part 930, 
subpart C, or an applicant's consistency certification, under 15 CFR 
part 930, subparts D, E or F.
    For non-federal applicants for federal authorizations under 15 CFR 
part 930, subparts D, E or F, the applicant may appeal a State's CZMA 
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. NOAA's Federal consistency 
regulations were first promulgated in 1979.
    On January 5, 2006, NOAA published a final rule amending the 
Agency's regulations implementing the CZMA, including procedural 
requirements governing the processing of consistency appeals filed 
under section 307 of the CZMA. These changes sought to effectuate 
necessary changes identified since the regulations were last amended in 
2000, and respond to amendments to the CZMA enacted by Congress in the 
Energy Policy Act of 2005 (Pub. L. 109-58; 119 Stat. 594 (2005)) 
(Energy Policy Act).

Explanation of Changes to the Federal Consistency Regulations

    Rule Change 1: Sec.  930.125(b). The January 2006 amendments in 
part added new requirements concerning the content of a notice of 
appeal filed with the Secretary of Commerce. Section 930.125(b) now 
requires that a notice of appeal include a statement explaining the 
bases for appealing the State agency's objection. As noted in the Final 
Rule, this new requirement was promulgated to help the Secretary decide 
appeals within new time constraints established under the Energy Policy 
Act, by requiring that appellants clarify from the outset each separate 
basis for appeal. See 71 FR 788, 799 (Jan. 5, 2006). If identified in 
the notice of appeal, these bases can be argued in greater detail 
within an appellant's subsequent brief.
    Section 930.125(b) includes an inadvertent error that necessitates 
technical correction. This section requires a statement explaining the 
bases for appeal under ``Sec.  923.121,'' a cross reference that has no 
relevance to

[[Page 75865]]

consistency appeals. The correct cross reference is Sec. Sec.  930.121 
and 122. Sections 930.121 and 122 are the two grounds available on 
which to base an appeal. With this technical correction, Sec.  
930.125(b) requires the notice of appeal to: (1) Explain why the 
project is consistent with the objectives or purposes of the CZMA 
(Sec.  930.121), and/or is otherwise necessary in the interest of 
national security (Sec.  930.122), outlining appellant's arguments for 
each element contained within Sec. Sec.  930.121 and/or 930.122 (with 
the understanding that appellant will amplify upon these arguments in 
briefs); and (2) identify any procedural arguments pursuant to Sec.  
930.129(b).
    Rule Change 2: Sec.  930.127(d)(1) and Sec.  930.127(i)(2). Both of 
these sections require the appellant to submit four copies of briefs, 
supporting materials and, in the case of appeals of energy projects 
under Sec.  930.127(i)(2), the consolidated record maintained by the 
lead Federal permitting agency. NOAA has determined that one hard copy 
and one electronic copy are sufficient to process appeals to the 
Secretary. This technical change will also reduce paperwork burdens on 
appellants.

Miscellaneous Rulemaking Requirements

Executive Order 12372: Intergovernmental Review

    This program is subject to Executive Order 12372.

Executive Order 12866: Regulatory Planning and Review

    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866.

Executive Order 13211

    Executive Order 13211 requires that agencies prepare and submit a 
``Statement of Energy Effects'' to the Office of Management and Budget 
for certain actions. This action will not result in any adverse effect 
upon the supply, distribution, or use of energy. Rather, this rule 
makes technical corrections and changes that will clarify existing 
requirements and will reduce paperwork burdens on appellants.

Administrative Procedure Act

    Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for 
Ocean Services, NOAA finds good cause to waive prior notice and an 
opportunity for public comment on this action, as notice and comment 
are unnecessary. This Final Rule makes only minor technical amendments 
that will correct mistakes and provide clarification to the public. The 
first change will correct an internal cross-reference in order to 
provide correct information regarding the processing of appeals. The 
second change will reduce unnecessary paperwork submissions by states 
and appellants. Neither change affects the substance of the Secretarial 
appeal process. For this same reason, NOAA finds good cause to waive 
the 30-day delay in the effective date of this action under 5 U.S.C. 
553(d)(3).

Regulatory Flexibility Act

    Because prior notice and opportunity for public comment are not 
required for this rule by 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., are not applicable.

Paperwork Reduction Act

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

National Environmental Policy Act

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

List of Subjects in 15 CFR Part 930

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


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Accordingly, 15 CFR part 930 is amended by making the following 
technical corrections:

PART 930--FEDERAL CONSISTENCY WITH APPROVED COASTAL MANAGEMENT 
PROGRAMS

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1. The authority citation continues to read as follows:

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


Sec.  930.125  [Corrected]

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2. Section 930.125 is corrected in the first sentence of paragraph (b) 
by removing the term ``Sec.  923.121'' and adding in its place the 
phrase ``Sec. Sec.  930.121 and/or 930.122.''


Sec.  930.127  [Corrected]

0
3. Section 930.127 is corrected in the first sentence of paragraph 
(d)(1) and in the first sentence of paragraph (i)(2) by removing the 
word ``four'' and adding in its place the word ``two.''

    Dated: December 14, 2006.
William Corso,
Deputy Assistant Administrator for Ocean Services and Coastal Zone 
Management.
[FR Doc. E6-21615 Filed 12-18-06; 8:45 am]
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