Changes to the Coastal Zone Management Act Program Change Procedures, 29093-29094 [E8-11064]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic Atmospheric Administration
• National Oceanic and Atmospheric Administration

[Federal Register Volume 73, Number 98 (Tuesday, May 20, 2008)]
[Proposed Rules]
[Pages 29093-29094]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-11064]


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DEPARTMENT OF COMMERCE

National Oceanic Atmospheric Administration

15 CFR Part 923

[Docket No. 080416573-8574-01]
RIN 0648-AW74


Changes to the Coastal Zone Management Act Program Change 
Procedures

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

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: NOAA intends to replace the Coastal Zone Management Act (CZMA) 
program change regulations (15 CFR part 923, subpart H) and associated 
guidance (OCRM's Program Change Guidance (July 1996)) with new 
regulations at 15 CFR part 923, subpart H. This notice requests public 
comment on the CZMA program change process that NOAA should consider 
when developing a proposed rule to replace 15 CFR part 923, subpart H.

DATES: Comments on this notice must be received by August 18, 2008.

ADDRESSES: Please send comments as an attachment to an e-mail in MS 
Word (WordPerfect is also acceptable), or in the body of an e-mail, to 
CZMA.ProgramChanges.ANPR@noaa.gov. Address all comments regarding this 
notice to Mr. Kerry Kehoe, Federal Consistency Specialist, Coastal 
Programs Division, Office of Ocean and Coastal Resource Management, 
NOAA, 1305 East-West Highway, 11th Floor, Silver Spring, MD 20910. 
Attention: CZMA Program Change Comments. Written comments may also be 
sent to this address.
    All comments received by the comment deadline and this Federal 
Register notice will be posted at OCRM's federal consistency Web page 
at: https://coastalmanagement.noaa.gov/consistency/rule.html.

FOR FURTHER INFORMATION CONTACT: Kerry Kehoe, Federal Consistency 
Specialist, 301-713-3155 ext. 151, Office of Ocean and Coastal Resource 
Management, NOAA.

SUPPLEMENTARY INFORMATION:

I. Background

    The CZMA (16 U.S.C. 1451-1465) was enacted on October 27, 1972, to 
encourage coastal States, Great Lake States, and United States 
Territories and Commonwealths (collectively referred to as ``coastal 
States'' or ``States'') to be proactive in managing the uses and 
resources of the coastal zone for their benefit and the benefit of the 
Nation. The CZMA recognizes a national interest in the uses and 
resources of the coastal zone and in the importance of balancing the 
competing uses of coastal resources. The CZMA is a voluntary program 
for States. If a State elects to participate it must develop and 
implement a coastal management program (CMP) pursuant to federal 
requirements. See CZMA section 306(d)(16 U.S.C. 1455(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. Thirty-five coastal States are 
eligible to participate in the federal coastal management program. 
Thirty-four of the eligible States have federally approved CMPs.
    An important component of the CZMA program is that State CMPs are 
developed with the full participation of state and local agencies, 
industry, the public, other interested groups and Federal agencies. See 
e.g., 16 U.S.C. 145 1(i) and (m), 1452(2)(H) and (I), 1452(4) and (5), 
1455(d)(1) and (3)(B), and 1456. Program changes are changes to NOAA-
approved components of State CZMA programs and new program components. 
There are five program approval areas (includes related changes to, or 
new, enforceable policies related to the five areas).
    The five areas are:
    1. Uses subject to program;
    2. Coastal zone boundaries;
    3. National interest;
    4. Special Area Management Plans; and
    5. Authorities & Organization.
    Program changes are important for several reasons. The statute 
requires submission to NOAA and NOAA approval (16 U.S.C. 1455(e)); 
state programs are not static; laws and issues change requiring 
continual operation of the CZMA State-Federal partnership. The State-
Federal partnership is a cornerstone of the CZMA. The primacy of state 
CZMA decisions and the CZMA federal consistency requirement is balanced 
with adequate consideration national interest components, Federal 
agency input into the content of State programs, and NOAA approval.
    In their federally approved CMPs and state CZMA decisions states 
must consider national interest areas of the CZMA to benefit national, 
not just local interests. In addition to the national interest in 
comprehensive coastal management by states, states must give priority 
consideration to coastal dependant national interest activities: 
Defense, energy, ports, transportation. For example, some of the more 
important issues NOAA must consider when evaluating program changes 
include whether the proposed change would: Affect CZMA national 
interest areas; seek to regulate federal agencies or areas outside 
state jurisdiction; be preempted by federal law; discriminate against 
particular coastal users or federal agencies; be enforceable under 
State law; raise issues under the National Environmental Policy Act 
(NEPA), Endangered Species Act (ESA), National Historic Preservation 
Act (NHPA), etc.
    Program changes are also important because the CZMA has a strong 
public participation role, combined with the State-Federal partnership. 
NOAA can only approve CMPs and changes to CMPs after Federal agencies 
and the public have an opportunity to comment on whether proposed new 
or revised ``enforceable policies'' are appropriate under the CZMA 
authority and other federal and state legal requirements. An 
enforceable policy is a State policy that is legally binding under 
State law (e.g., through constitutional provisions, laws, regulations, 
land use plans, ordinances, or judicial or administrative decisions) 
and by which a State exerts control over private and public coastal 
uses and resources, and which are incorporated in a State's federally 
approved CMP. See 16 U.S.C. 1453(6a). This means that enforceable 
policies must be given legal effect by State law and cannot apply to 
Federal lands, Federal waters, Federal agencies or other areas or 
entities outside a State's jurisdiction, unless authorized by Federal 
law. Also, the CZMA section 307 federal consistency provision requires 
that state enforceable policies are the standards that apply to Federal 
agency activities, federal license

[[Page 29094]]

or permit activities, outer continental shelf plans and federal 
financial assistance activities. 16 U.S.C. 1456. Therefore, Federal 
agencies and the public must have an opportunity to review proposed 
changes to a State's enforceable policies.
    Program changes are also important because the CZMA federal 
consistency provision is triggered only if the federal action has 
reasonably foreseeable coastal effects and a State has applicable 
policies approved by NOAA that are legally enforceable under state law. 
It is therefore important for states to submit to NOAA for approval 
timely updates to CZMA enforceable policies.

II. Need for Revised Program Change Regulations

    The current program change regulations, 15 CFR part 923, subpart H, 
have been in place since the late 1970's. In 1996, NOAA made minor 
revisions to the regulations and also issued program change guidance 
that further elaborated on program change requirements. Over the years, 
states and NOAA have, at times, found the regulations difficult to 
interpret. For example, determining: When a program change is 
``routine'' or an ``amendment;'' when a program change is 
``substantial;'' what level of state analysis is required; when 
preliminary approval can be granted by NOAA.
    In addition, the CZMA was revised in 1990, in part, to place 
greater emphasis on state CMP enforceable policies. This has led to the 
submission to NOAA of many more updates to CMPs. This increase in 
program change submissions has furthered the complexities of the 
current program change regulations. States and NOAA have, therefore, 
recognized the need to clarify the program change procedures and to 
provide a more administratively efficient submission and review 
process, while still addressing the importance of program changes, as 
discussed above.

III. Action Requested From the Public

    NOAA requests input from states, federal agencies and the public on 
revised program change regulations. Some of NOAA's goals in revising 
the program change regulations that reviewers should consider are:
    1. Establishing a clearer and more efficient and transparent 
process for program change review;
    2. Describing clearer approval/disapproval criteria and how these 
apply;
    3. Using the statutory language of the CZMA, including time lines, 
extensions, and preliminary approval;
    4. Keeping the ``routine'' concept to streamline the process for 
truly routine changes, but do away with ``routine program changes 
(RPCs)'' and ``Amendments'' and replace with just ``program changes;''
    5. Removing the ``substantial'' evaluations currently done by 
states and replace with just describing what the change is to the 
program. Further evaluations (by states or NOAA) would be for specific 
CZMA, NEPA, ESA, NHPA, etc., purposes, e.g., is a NEPA Environmental 
Assessment or Environmental Impact Statement, or ESA consultation 
needed;
    6. Establishing use of NEPA categorical exclusions;
    7. Submitting underline/strikeout documents showing changes to 
previously approved policies; and
    8. Creating a program change checklist that states would submit to 
ease state and NOAA paperwork burdens and promote consistent 
submissions and NOAA analyses.
    Comments received by NOAA will help to develop a proposed rule for 
15 CFR part 923, subpart H. Any proposed changes to the CZMA program 
change regulations would be published in the Federal Register following 
compliance with the Administrative Procedure Act and other relevant 
statutes and executive orders.

    Dated: May 13, 2008.
John H. Dunnigan,
Assistant Administrator for Oceans and Coastal Zone Management.
[FR Doc. E8-11064 Filed 5-19-08; 8:45 am]
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