Changes to the Coastal Zone Management Act Program Change Procedures, 78514-78526 [2016-26680]

Download as PDF 78514 Proposed Rules Federal Register Vol. 81, No. 216 Tuesday, November 8, 2016 This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. DEPARTMENT OF COMMERCE National Oceanic Atmospheric Administration 15 CFR Part 923 [Docket No. 080416573–6895–02] RIN 0648–AW74 Changes to the Coastal Zone Management Act Program Change Procedures Office for Coastal Management, National Ocean Service, National Oceanic Atmospheric Administration (NOAA), Department of Commerce (Commerce). ACTION: Proposed rule; request for comments. AGENCY: The National Oceanic and Atmospheric Administration (NOAA) wants to provide states and NOAA with a more efficient process for making changes to state coastal management programs (‘‘management programs’’). NOAA proposes to revise the Coastal Zone Management Act (CZMA) program change regulations and associated guidance (Program Change Guidance (July 1996) and Addendum (November 2013)) within our regulations. Under the CZMA, a coastal state may not implement any amendment, modification, or other change as part of its approved management program unless the amendment, modification, or other change is approved by the Secretary of Commerce under this subsection. Once NOAA approves the incorporation of a change into a management program, any new or amended management program enforceable policies are applied to federal actions through the CZMA federal consistency provision. This proposed rule addresses the issues raised in NOAA’s Advanced Notice of Proposed Rulemaking, 73 FR 29093 (May 20, 2008) (ANPR) to: Provide a more efficient process for states and NOAA to make changes to state management programs; remove Lhorne on DSK30JT082PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 14:20 Nov 07, 2016 Jkt 241001 unnecessary requirements in the current regulations; establish program change documentation that all states would adhere to; continue to ensure that federal agencies and the public have an opportunity to comment to NOAA on a state’s proposed change to its management program; and comply with the requirements of the CZMA and other applicable federal law. The proposed rule also addresses comments submitted on the ANPR. DATES: Comments on this notice must be received by January 9, 2017. ADDRESSES: You may submit comments on this proposed rule, identified by NOAA–NOS–2016–0137, by either of the following methods: • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal www.regulations.gov. To submit comments via the e-Rulemaking Portal, first click the ‘‘Submit a Comment’’ icon, then enter NOAA–NOS–2016– 0137 in the keyword search. Locate the document you wish to comment on from the resulting list and click on the ‘‘Submit a comment’’ icon on the right of that line. • Mail: Submit written comments to Mr. Kerry Kehoe, Federal Consistency Specialist, Office for Coastal Management, NOAA, 1305 East-West Highway, 10th Floor, N/OCM6, Silver Spring, MD 20910. Attention: CZMA Program Change Comments. Instructions: Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NOS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.) submitted voluntarily by the sender will be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. NOS will accept anonymous comments (enter ‘‘N/A’’ in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats only. PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 Mr. Kerry Kehoe, Federal Consistency Specialist, Office for Coastal Management, NOAA, at 240–533–0782 or kerry.kehoe@noaa.gov. SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION CONTACT: I. Background Unless otherwise specified, the term ‘‘NOAA’’ refers to the Office for Coastal Management, within NOAA’s National Ocean Service. The Office for Coastal Management formed in 2014 through the merger of the Office of Ocean and Coastal Resource Management and the Coastal Services Center. The CZMA (16 U.S.C. 1451–1466) 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 established the National Coastal Zone Management Program, a voluntary program for states. If a state decides to participate in the program it must develop and implement a comprehensive management program pursuant to federal requirements. See CZMA § 306(d) (16 U.S.C. 1455(d)); 15 CFR part 923. Of the thirty-five coastal states that are eligible to participate in the National Coastal Zone Management Program, thirty-four have federallyapproved management programs. Alaska is currently not participating in the program. An important component of the National Coastal Zone Management Program is that state management programs 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. 1451(i) and (m), 1452(2)(H) and (I), 1452(4) and (5), 1455(d)(1) and (3)(B), and 1456. The comprehensive state management programs must address the following areas pursuant to 15 CFR part 923: 1. Uses Subject to Management (Subpart B); 2. Special Management Areas (Subpart C); 3. Boundaries (Subpart D); E:\FR\FM\08NOP1.SGM 08NOP1 Lhorne on DSK30JT082PROD with PROPOSALS Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Proposed Rules 4. Authorities and Organization (Subpart E); and 5. Coordination, Public Involvement and National Interest (Subpart F). NOAA approval is required for the establishment of a state management program. Once approved, changes to one or more of the program management areas listed above, including new or revised enforceable policies, must be submitted to NOAA for approval through the program change process. Program changes are important for several reasons: The CZMA requires states to submit changes to their programs to NOAA for review and 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; and the CZMA ‘‘federal consistency’’ provisions require that federal actions that have reasonably foreseeable coastal effects be consistent with the enforceable policies of federallyapproved management programs. The state-federal partnership is a cornerstone of the CZMA. The primacy of state decisions under the CZMA and compliance with the CZMA federal consistency provision is balanced with adequate consideration of the national interest in CZMA objectives; the opportunity for federal agency input into the content of state management programs; NOAA evaluation of management programs and NOAA review and approval of changes to management programs. In establishing and maintaining their federally-approved management programs, states must consider national interest objectives of the CZMA in addition to state and local interests. The national interest objectives of the CZMA include: • Effective management, beneficial use, protection and development of the coastal zone (16 U.S.C. 1451(a)); • important ecological, cultural, historic and esthetic values of the coastal zone are essential to the wellbeing of all citizens (16 U.S.C. 1451(d)); • anticipating and planning for the effects of climate change (16 U.S.C. 1451(l)); • managing coastal development to minimize the loss of life and property caused by improper development and coastal storms (16 U.S.C. 1452(2)(B)); and • giving priority consideration to coastal-dependent uses and orderly processes for siting major facilities related to national defense, energy, fisheries, recreation, and ports and transportation (16 U.S.C. 1452(2)(D)). Some of the important issues NOAA must consider when evaluating program VerDate Sep<11>2014 14:20 Nov 07, 2016 Jkt 241001 changes include whether the change would: (1) Affect CZMA national interest objectives; (2) attempt to regulate federal agencies, lands or waters, or areas outside state jurisdiction; (3) be preempted by federal law; (4) discriminate against particular coastal users or federal agencies; (5) include policies that are enforceable under state law; and (6) raise issues under the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), National Historic Preservation Act (NHPA), Magnuson Stevens Fisheries Conservation and Management Act (MSFCMA) or other federal laws. NOAA review and approval of program changes is also important because the CZMA provides for federal agency and public participation in the content of a state’s management program. NOAA can only approve management programs and changes to management programs after federal agencies and the public have an opportunity to comment on the content of the program change. Within the context of the CZMA federal consistency provisions, an enforceable policy is a state policy that has been incorporated into a state’s federallyapproved management program, 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. See 16 U.S.C. 1453(6a) and 15 CFR 930.11(h) (enforceable policy). 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 § 307 federal consistency provision requires that state enforceable policies are the standards that apply to federal agency activities, federal license or permit activities, outer continental shelf plans and federal financial assistance activities. 16 U.S.C. 1456; see also 15 CFR 930.11(h). Therefore, federal agencies and the public must have an opportunity to review proposed substantive changes to a state’s enforceable policies. Program changes are also important because the CZMA federal consistency provision applies 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 PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 78515 state management program 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 1970s. The CZMA was revised in 1990, in part, to place greater emphasis on state management program enforceable policies. This has led to an increase in the number of program changes submitted to NOAA and the workload for state and federal staff. 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. In 1996, NOAA made minor revisions to the regulations and also issued program change guidance that further described program change requirements. In 2013, NOAA issued an addendum to the 1996 program change guidance for added clarification. Over the years, states and NOAA have, at times, found the regulations difficult to interpret. For example, there has been confusion about determining: When a program change is ‘‘routine’’ versus an ‘‘amendment;’’ when a program change is ‘‘substantial;’’ what level of state analysis is required; what level of detail is needed for a policy to be enforceable; and what can be approved as an enforceable policy. III. Objectives of the Proposed Rule NOAA’s objectives in revising the program change regulations are to: 1. Establish a clear, efficient and transparent process for program change review; 2. Describe approval criteria and how these apply; 3. Use terminology from the CZMA, including time lines and extensions; 4. Eliminate the distinction between ‘‘routine program changes (RPCs)’’ and ‘‘amendments.’’ This would remove the program change analysis currently done by states to determine if a change is substantial, and therefore an amendment, and instead require states to describe the nature of the program change and indicate whether the state believes the program change would impact CZMA program approvability areas, national interest objectives, or compliance with other federal laws. The distinction between RPCs and amendments, and the substantiality analyses by states are administrative and paperwork burdens with little or no benefit; 5. Continue to determine on a case-bycase basis the appropriate level of NEPA E:\FR\FM\08NOP1.SGM 08NOP1 78516 Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Proposed Rules analysis warranted. With over 35 years of reviewing program changes, NOAA has determined that the vast majority of program changes do not, for purposes of NEPA, significantly affect the human environment; 6. Encourage states to use underline/ strikeout documents for program change submissions to show changes to previously approved policies; 7. Create a program change form that all states would use to submit changes to NOAA, easing state and NOAA paperwork burdens, promoting more consistent submissions and NOAA analyses, and expediting NOAA’s review; 8. Use a NOAA ‘‘Program Change Web site’’ through which NOAA would electronically post program changes and public comments received, and notify federal agencies and the public of the status of program changes; and 9. Require states to post program change public notices on the state’s management program Web site. In addition, the current regulations at 15 CFR part 923, subpart H, include ‘‘termination of approved management programs.’’ However, sanctions to and termination of management programs are described in detail in Subpart L— Review of Performance. Therefore, the proposed changes to subpart H would no longer include termination of approved management programs. Lhorne on DSK30JT082PROD with PROPOSALS Comments on Advanced Notice of Proposed Rulemaking Comments were submitted on the ANPR by the Coastal States Organization (CSO), the U.S. Navy, the San Francisco Bay Conservation and Development Commission (BCDC) and the states of Delaware and Oregon. Most of the comments received on the ANPR supported NOAA’s objectives and some comments offered suggestions for how some of these objectives might be achieved. NOAA presented eight points in the ANPR to help focus comments. These eight points and the comments submitted to NOAA are discussed below. 1. Establishing a clearer and more efficient and transparent process for program change review. Comments: All commenters support this objective. For minor changes to enforceable policies, local plans, etc., a simplified approach could be an annual report to NOAA using a NOAA form/checklist that would describe the change, scope of the change and impacts to enforceable policies (Oregon). For changes to local enforceable policies such as comprehensive plan VerDate Sep<11>2014 14:20 Nov 07, 2016 Jkt 241001 provisions, land use regulations and maps, Oregon suggests two alternatives: Alternative A—NOAA would allow a state to determine that a change in local enforceable policies is consistent with the underlying enforceable policies of state statute or rule that were previously approved by NOAA. A state would submit an annual summary of local amendments that are consistent with underlying state enforceable policies, along with the dates of approval by the state management program of the changes; or, Alternative B—NOAA and each state would enter into a Memorandum of Understanding that specifies the conditions under which a state would submit changes to local statutes and administrative rules and regulations, and local enforceable policies. The Navy made various recommendations: 1. Develop specific and reasonable timelines that allow sufficient time for review, and set timelines for related issues such as extensions, preliminary approvals, and requesting mediation; 2. The public should be provided immediate notice of proposed and final program changes; 3. Impose a new requirement for states to assist with notification of the public and federal agencies that may wish to review proposed changes; and 4. Use modern information technology by providing that posting the proposed changes on the Internet, when combined with an email notification roster (listserv), serves as official notification. Create Web sites that include the state’s proposed text, NOAA decisions and NEPA documents and links to state management programs. NOAA Response: NOAA believes that the proposed program change regulations meet the proposal by Oregon for minor changes to state management programs. A state could submit program changes as they occur or on a cyclical basis (twice a year, once a year, etc.) and NOAA has included this in the proposed rule at § 923.81(a). NOAA believes that Oregon’s proposal for local plans and policies: (1) Is not compatible with the CZMA requirement that states submit program changes to NOAA for review and approval (16 U.S.C. 1455(e)); (2) would not provide adequate opportunity for NOAA to determine if the local policies are consistent with the decision criteria described in § 923.84; and (3) would not provide adequate opportunity for federal agency or public comment. NOAA believes that the program change submission process in proposed § 923.82 provides an alternative for Oregon’s proposal and PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 still satisfies CZMA and NOAA approval requirements. In response to the Navy, NOAA believes that all of the Navy’s recommendations have been met in the proposed rule regarding use of both state and NOAA Web sites and listservs to provide notice of and access to program changes and NOAA’s decisions as well as relevant timeframes and decision dates that are dictated primarily by statute. 2. Describing clearer approval/ disapproval criteria and how these apply. Comments: All commenters support this objective. NOAA’s decision criteria need to be clearly defined (BCDC). The only applicable criteria should be that (1) the program continues to meet the standards set forth in section 306 of the CZMA, and (2) that the revised program does not place an unacceptable burden on a federal agency operating in the coastal zone (CSO, Oregon). Allow state policies to refer to state and allowable federal codes and regulations without including the full text of those authorities (Delaware). NOAA Response: NOAA has described its program change decision criteria in proposed § 923.84 and believes that the proposed criteria, as well as the program change documentation and form, will clearly define the NOAA decision process. NOAA disagrees that its only approval criteria should be a finding that the program continues to meet the program approval criteria and does not place an unacceptable burden on federal agencies. NOAA believes that in order to meet its obligations under the CZMA, the proposed decision criteria, which NOAA has been using as a matter of policy and practice for many years, are needed to comply with the CZMA and Congressional intent for NOAA oversight. In addition, determining what would be an ‘‘unacceptable burden’’ on federal agencies would be subjective at best; rather, NOAA’s decision criteria provide a more objective and legally sound basis on which to evaluate state program changes. NOAA also disagrees that states should be able to impose standards ‘‘by reference’’ when those referenced standards have not been subjected to the program change process, NOAA review and opportunity for federal agency and public comment. 3. Using the simpler statutory language, including time lines, extensions, and preliminary approval. Comments: All commenters support this objective. NOAA Response: No response needed. E:\FR\FM\08NOP1.SGM 08NOP1 Lhorne on DSK30JT082PROD with PROPOSALS Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Proposed Rules 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.’’ Comments: The commenters support keeping the routine concept and eliminating amendments. The level of analysis should be tailored to fit the complexity of the change to the state’s program; assigning labels or categories to changes does not add to the process (BCDC, CSO, Delaware, Oregon). The Navy welcomes NOAA’s initiative towards improving the transparency and ease of the coastal zone management program change review and approval process. The Navy supports NOAA’s suggestion that truly routine program changes be identified and their handling streamlined. However, the Navy supports a separate process for amendments (substantial changes) so that affected federal agencies can comment on the proposals. The Navy stated that NOAA should review the types of changes that have been approved over recent years and develop a list of examples deemed to be routine, and NOAA should use the list to prepare descriptive criteria for routine changes. NOAA Response: Consistent with the comments from BCDC, CSO, Delaware and Oregon, the program change regulations will eliminate the distinction between ‘‘routine program changes’’ and ‘‘amendments.’’ States will be required to use a program change form to identify the changes being submitted for approval. The level of effort needed by NOAA to review changes will correspond to the type of changes proposed. All program changes will be submitted using the same process, which will eliminate the need for states to make the former distinction between amendments and routine program changes. Using the same process, in addition to a program change form, should make program change submissions and review more efficient for state and NOAA staff. Program changes identified in proposed § 923.82(b) will be reviewed by NOAA in a more expedited manner. NOAA believes it has met the Navy’s objectives without needing to use the current distinction between routine program changes and amendments. As explained elsewhere in the proposed rule, this distinction is unnecessary and the history of program changes shows that most changes are routine. Moreover, under the proposed program change regulations, NOAA will provide access to program change materials, send notices to federal agencies, and VerDate Sep<11>2014 14:20 Nov 07, 2016 Jkt 241001 provide an opportunity for federal agencies to comment on all program changes. At the same time, administrative burdens on states and NOAA will be lessened. NOAA’s proposed removal of the distinction between routine changes and amendments is based on NOAA’s review of almost one thousand changes to management programs over the past thirty-five years. The vast majority of these changes were modifications to existing parts of NOAA approved management programs. In only a few instances did NOAA prepare an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) and even rarer an Environmental Impact Statement (EIS). The determining factors in the few instances when NOAA prepared an EA or EIS, were the magnitude of the change proposed by a state, usually involving a major new component to the management program or a major change in focus to the existing management program. Most of these also involved controversial positions by the state. From 1977 to March 2016, there have been approximately 862 changes to management programs approved by NOAA. Less than 2.5 percent, about twenty, were amendments; approximately 842 were RPCs. Seventyfive percent of the amendments (about fifteen) were before 1990 and many of these were for the addition of energy facility siting plans required by an amendment to the CZMA. For five of the amendments NOAA prepared an EIS (1998, 1991, 1997, 2004 and 2004) and two of these included informal ESA consultation. For fourteen of the amendments NOAA prepared an EA and FONSI. Of the approximately 842 RPCs, NOAA prepared an EA and FONSI for two of them. State CZMA management programs are comprehensive programs that, when they are being developed, undergo extensive review by states, NOAA, federal agencies and the public, including environmental review and an EIS under NEPA. In most instances changes to management programs have added further details to the previously approved management program and have not presented issues not considered during initial program approval and subsequent program changes. Under NOAA’s current program change regulations and guidance these would be routine program changes (RPCs) and not substantial changes, or amendments. NOAA intends to eliminate the distinction between RPCs and amendments and just have ‘‘program changes.’’ PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 78517 5. Removing the ‘‘substantial’’ evaluations currently done by states and replacing such evaluations with a description of 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 an EA or EIS, or ESA consultation needed. Comments: BCDC, CSO, Delaware, Oregon support removing the ‘‘substantial’’ evaluations. Much of the difficulty in the current procedure for compiling and submitting program changes stems from the requirement for a detailed comparison of old and new versions of state laws, state rules and regulations, and local comprehensive plans and ordinances. While this side-by-side comparison may have some utility, it turns out to have little or no practical value to either NOAA or the state, and has become a barrier to making federal consistency determinations that reflect current conditions (Oregon). For substantial changes, NOAA should also provide a Federal Register Notice to ensure that the public understands what changes are proposed. This provides agency personnel who may not be included on an email list or listserv with the opportunity to comment and express their concerns (Navy). NOAA Response: NOAA does not believe that Federal Register notices, in general, are needed, especially since NOAA will be making program changes and related notices publicly available on its new ‘‘Program Change Web site.’’ Through the Web site, federal agencies and the public will be able to sign up to receive program change notices from NOAA. However, where there is a major change in a state’s management program that may require a separate EA or EIS, NOAA may decide to publish notices in the Federal Register. 6. Establishing use of NEPA categorical exclusions. Comments: CSO and the state of Oregon support this goal, but note that it requires further explanation. The Navy recommended that NOAA consider, pursuant to 15 CFR 930.33(a)(3), developing a list of universal de minimis activities based on NEPA categorical exclusions and on existing federal activity de minimis lists that have been approved by state agencies, retaining the ability of states and federal agencies to mutually agree on additional de minimis activities. States could modify the universal de minimis lists by adding mitigating or compliance conditions. Such additions should be subject to the change review procedures. E:\FR\FM\08NOP1.SGM 08NOP1 Lhorne on DSK30JT082PROD with PROPOSALS 78518 Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Proposed Rules NOAA Response: NOAA will determine on a case-by-case basis the appropriate level of NEPA analysis warranted for the action. NOAA has determined that, when applicable, a more appropriate process for NEPA compliance may be use of a categorical exclusion. In response to the Navy’s novel approach to using the de minimis provision of NOAA’s federal consistency regulations, NOAA does not believe it could impose such a list of de minimis activities. NOAA does, however, encourage federal agencies to propose de minimis activities and submit these to the coastal states for their concurrence under the federal consistency provision. See 15 CFR 930.33. 7. Submitting underline/strikeout documents showing changes to previously approved policies. Comments: BCDC supported the use of underline/strikeout documents, but stated that NOAA should provide flexibility to account for multiple and large-scale changes to a policy over time, large documents, etc. CSO found this to be an unnecessary and overly burdensome requirement. CSO stated that there may be instances where such a technique is employed to clearly explain a program change, but this is more appropriately an available tool, rather than a strict requirement. The Navy suggested that NOAA require submission of underline/ strikeout documents showing changes to previously approved documents. NOAA Response: NOAA encourages states to use underline/strikeout documents but recognizes that such documents are not always practicable. 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: All commenters support this objective. One item on this checklist would be formal notification of federal agencies about program changes. In addition, CSO and Oregon suggested that a list of federal agencies and points of contact for notice of program changes updated and maintained by NOAA would greatly improve this step in the process. NOAA Response: Through the federal consistency Web site and the developing program change Web site there are and will be federal agency contacts maintained by NOAA. See http://www.coast.noaa.gov/czm/ consistency/. In addition, federal agencies and the public will be able to view program changes posted to VerDate Sep<11>2014 14:20 Nov 07, 2016 Jkt 241001 NOAA’s new ‘‘Program Change Web site.’’ IV. Explanation of Proposed Changes to the CZMA Program Change Regulations § 923.80 General This section describes the general requirements for program changes. Paragraph (a) states that the term ‘‘program changes’’ includes all terms used in the statute, CZMA § 306(e), and identifies the Office for Coastal Management as the NOAA office that administers these regulations. Paragraph (b), derived from CZMA § 306(e), states that a coastal state may not implement a change as part of its management program until NOAA approves the program change. Similarly, a coastal state may not use a state or local government policy or requirement as an ‘‘enforceable policy’’ for purposes of federal consistency unless NOAA has approved the state or local policy or requirement as an ‘‘enforceable policy.’’ State or local government law not approved by NOAA as part of a state’s management program remain legal requirements for state and local government purposes, but will not be part of a state’s management program and, therefore, cannot be used for CZMA federal consistency purposes. Paragraph (d) states that the term ‘‘enforceable policies’’ has the same definition as that included in NOAA’s CZMA federal consistency regulations at 15 CFR 930.11(h). NOAA has added enforceable policy decision criteria in proposed § 923.84. These criteria have been included in NOAA guidance and information documents and have been part of long-standing NOAA implementation of program changes and enforceable policies. See, e.g., NOAA’s Program Change Guidance (July 1996) (http://coast.noaa.gov/czm/consistency/ media/guidanceappendices.pdf) and NOAA’s Federal Consistency Overview document (http://www.coast.noaa.gov/ czm/consistency/media/FC_overview_ 022009.pdf). Paragraph (e) notes that the submission of program changes may be required as a necessary action under NOAA’s evaluation of management programs under CZMA § 312 and 15 CFR part 923, subpart L. Failure to comply with a necessary action to submit a program change can result in a suspension of CZMA grants pursuant to CZMA § 312 and the subpart L regulations. PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 § 923.81 Program Change Procedures, Deadlines, Public Notice and Comment and Application of Federal Consistency This section sets forth various procedures for submitting program changes. Paragraph (a). Program changes must be submitted by the Governor of a coastal state, the head of the single state agency designated under the management program to be the lead state agency for administering the CZMA, or the head of an office within the designated single state agency if the state has authorized that person to submit program changes. NOAA would no longer require states to mail hard copies of program changes. Rather, all program changes would be submitted through the new Program Change Web site or through an alternative method, agreed to by the state and NOAA, if an electronic submission through the Web site is not possible. All deadlines and timeframes would start on the first full business day after NOAA receives a program change (Day 1). For example, if a submission is received on a Thursday, Day one for timeline purposes would be Friday; if the day of receipt is Friday and Monday is a federal holiday, Day 1 would be Tuesday. All days, starting with Day 1, are included in the calculation of total time for a deadline, including weekends and federal holidays. States may request that the official start date occur at a later time; this is an administrative convenience NOAA has allowed states to use in the past to account for various state administrative purposes. Paragraph (b). NOAA shall confirm receipt of all program changes and future deadlines. During NOAA’s review of a program change, NOAA may request additional information that it needs to make its decision. Paragraph (c). This paragraph sets forth the deadlines NOAA must follow in responding to state program change requests. The deadlines in paragraph (c) are the same as NOAA’s current practice and clarify a discrepancy that exists in the current program change regulations and the CZMA. NOAA is required by the Act to respond within 30 calendar days of receipt of a program change request. The 30-day period starts on Day 1 (the first full business day after receipt of a program change request). If NOAA does not respond within the 30-day period, then NOAA’s approval is presumed. NOAA may extend its review period up to 120 days after receipt of a program change request, if NOAA so notifies the state during the 30-day period. NOAA may continue to extend E:\FR\FM\08NOP1.SGM 08NOP1 Lhorne on DSK30JT082PROD with PROPOSALS Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Proposed Rules its review period up to 120 days and can extend beyond 120 days for NEPA compliance; NOAA would have to notify the state of the NEPA extension during the 120-day review period. Paragraph (d). This paragraph codifies the current practice of pre-submission consultation with NOAA to identify any potential approval issues prior to submitting a program change submission. States are encouraged to submit draft program changes to NOAA for informal review and to consult with NOAA, to the extent practicable, prior to state adoption of new or revised laws, policies and other provisions that the state intends to submit as a program change. Paragraph (e). NOAA is simplifying the public notice and comment procedures for program changes. Given the reliance on electronic means of communication and the demise of hard copy notices in newspapers and other formats, all states would be required to post public notices on state management program’s Web site and directly email or mail notices to applicable local and regional offices of relevant federal agencies, federal agency headquarter contacts, affected local governments and state agencies, and any individuals or groups requesting direct notice. NOAA’s program change review period would not begin until such notice is provided. NOAA will also post the state notices on its Program Change Web site and directly notify via email federal agency headquarter contacts and any other individual or group requesting direct notice. The state’s public notice would describe the program change, any new or modified enforceable policies, and indicate that any comments on the program change shall be submitted to NOAA. NOAA will post the program change and all NOAA decisions on its Web site and notify federal agency headquarter contacts and other individuals or groups requesting notification. NOAA may extend the public comment period. Paragraph (f). This paragraph states that program changes to enforceable policies can only be applied for CZMA federal consistency review purposes on or after the date NOAA approves the changes. The effective date for the approved changes will be the date on NOAA’s approval letter. NOAA will post its program change decision letters on its Program Change Web site. This section would also codify in regulation NOAA’s long-standing position that a state enforceable policy cannot apply retroactively to previously proposed federal actions; proposed federal actions are only subject to the management program enforceable policies approved VerDate Sep<11>2014 14:20 Nov 07, 2016 Jkt 241001 at the time the federal action is proposed under the various subparts of 15 CFR part 930. Applying newly approved program changes retroactively to proposed federal actions would be contrary to Congressional intent that federal consistency apply in an expeditious and timely manner, and could impose unfair requirements on applicants and federal agencies. § 923.82 Program Change Submissions The changes described in § 923.82(b) are editorial or are minor in scope, both procedurally and substantively. These changes are not controversial and pose little or no impact on federal agencies or the public. Therefore, NOAA’s review of changes under § 923.82(b) would be expedited. Paragraphs (b)(1) through (4) describe program changes that are either editorial in nature or are minor in scope, both procedurally and substantively. Paragraph (b)(1) addresses editorial or non-substantive changes to state laws, regulations, enforceable policies, local government coastal programs or plans that contain enforceable policies, and other authorities. Paragraph (b)(2) covers changes to special area management plans that do not change a state’s coastal zone boundary, enforceable policies or geographic location descriptions, and are not otherwise used by the state for federal consistency review. Paragraph (b)(3) covers most organizational changes where the primary structure and responsibilities of the management remain intact. NOAA will closely monitor organizational changes to ensure that major overhauls of a state’s management program structure would not weaken a coastal program. Paragraph (b)(4). Most program changes, even those that result in some substantive change to a management program, have historically been routine and non-controversial, and have not posed any approval issues or resulted in any comments from federal agencies or the public. NOAA’s review of these types of program changes should be expedited so long as these minor substantive changes would only apply to revised enforceable policies, not wholly new enforceable policies, and the changes are consistent with the scope and application of the previously approved enforceable policy. The types of program changes under § 923.82(c) are self-explanatory and include: any changes that are not covered under § 923.82(b) and would be used for federal consistency purposes (new or revised enforceable policies, changes to state lists of federal actions subject to federal consistency review, PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 78519 geographic location descriptions outside the coastal zone, necessary data and information); new or revised coastal uses; changes in the coastal zone boundary; program approval authorities; and special area management plans. Paragraph (c)(4), recognizes that for some states with local coastal programs or plans, the state can respond to federal consistency reviews without having to refer to the local programs or plans. In such cases, while the local programs and plans are important implementing mechanisms for coastal management in the state, states do not need to submit updates to the local programs or plans if they do not contain enforceable policies for federal consistency purposes. This would remove the substantial administrative burden for states and NOAA to submit and review local coastal programs. Paragraph (d) addresses changes to state Clean Air Act (CAA) and Clean Water Act (CWA) Pollution Control Requirements. CZMA § 307(f) states that CAA and CWA requirements established by the Federal Government or by any state or local government pursuant to the CWA and CAA shall be incorporated in state management programs and shall be the water pollution control and air pollution control requirements applicable to such management program. NOAA’s longstanding interpretation of 307(f) has been that these CWA and CAA pollution control requirements are automatically enforceable policies of the state management programs and, therefore, states are not required to submit as program changes any changes to state CAA and CWA provisions. § 923.83 Program Change Materials Section 923.83 describes all the program change information a state would submit to NOAA. These requirements are self-explanatory. NOAA intends to transform each of these paragraphs into a form that would, to the greatest extent practicable, use check-boxes or ‘‘radio-buttons,’’ and require minimal text input. While the same form would be used for all program changes, there would be less information needed for those changes that fall under § 923.82(b). Paragraph (a)(2)(vi) codifies NOAA interpretation and long-standing practice of the term ‘‘enforceable mechanism.’’ An enforceable mechanism is the state legal authority that makes a state policy enforceable under state law. In order to be an ‘‘enforceable policy,’’ CZMA § 304(6a) requires that the policies be legally binding under state law. NOAA has interpreted this to mean that the E:\FR\FM\08NOP1.SGM 08NOP1 78520 Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Proposed Rules Lhorne on DSK30JT082PROD with PROPOSALS enforceable policy must be incorporated into the state’s NOAA-approved management program, but the underlying enforceable mechanism does not necessarily have to be incorporated into a state’s management program or submitted for NOAA approval. Some enforceable mechanisms are integral parts of the management program or are needed for NOAA approval of a state’s management program and changes to these enforceable mechanisms would be submitted to NOAA as program changes (e.g., core management program statutes, regulatory permit programs that implement a part of a management program). States need to identify the enforceable mechanism for each enforceable policy. This is needed not only so NOAA can concur that a state policy is legally binding under state law, but an enforceable mechanism may be changed in such a way that makes an enforceable policy no longer legally binding under state law. In such cases, that policy, while previously approved by NOAA as part of the state’s management program, would no longer be an enforceable policy that could be used for federal consistency purposes. States are encouraged to show the changes, additions and deletions to enforceable policies using an underline/ strikeout format or other similar format. If a state uses an underline/strikeout format, the state should only show the changes from the version of the policy last approved by NOAA and the most current version that is being submitted to NOAA; a state does not need to show any changes to the policy that might have been made in between NOAA’s last approval and the current version. States are also encouraged to post comprehensive lists of the enforceable policies to the state’s coastal management program Web site. § 923.84 Program Change Decision Criteria The decision criteria in this section are taken from the current Program Change Guidance (1996) and NOAA’s Federal Consistency Overview document. NOAA has applied these criteria since at least 1996 when reviewing program change requests. These criteria are generally selfexplanatory and states would use a program change form to be developed by NOAA to assess whether these criteria are satisfied. For enforceable policies under paragraph (b) of this section, a policy must contain a standard; if a provision of a state law or regulation merely directs a state agency to develop standards, then that provision would not be an enforceable policy as it does not contain a standard. VerDate Sep<11>2014 14:20 Nov 07, 2016 Jkt 241001 An enforceable policy should contain terms such as ‘‘shall,’’ ‘‘must,’’ or other terms interpreted under state law that mandate some action or compliance. Paragraph (b) also clarifies that it does not always make sense to parse out the enforceable policies within a statute or regulation that also contain parts that are necessary details for applying enforceable policies even though not enforceable themselves. This includes definitions, procedures, and information requirements that are essential elements of interpreting the substantive standards and determining consistency with the standards. Therefore, in some cases NOAA may find that a statute or regulation in its entirety is enforceable. Paragraph (b) also clarifies that enforceable policies must: Apply to areas and entities within state jurisdiction; not assert regulatory authority over federal agencies, lands or waters unless federal law authorizes such jurisdiction; not be preempted on their face by federal law; not attempt to incorporate by reference other state or local mandatory requirements not submitted to, reviewed, and approved by NOAA; not discriminate against a particular activity or entity; and not adversely affect the national interest in the CZMA objectives. For example, if a state is concerned about having policies that would apply to offshore oil and gas activities, the state would need to develop policies that would apply to any activity or industry that would have similar coastal effects; the state could not single out offshore oil and gas unless there are specific activities or coastal effects that only apply to the offshore oil and gas industry. Likewise, if a state wants to promote marine renewable energy in its enforceable policies, it may do so, but could not at the same time prohibit other forms of energy development without sufficient justification. Blanket prohibitions are generally not approved by NOAA as part of a state’s management program unless a state provides sufficient justification. NOAA will not approve proposed enforceable policies which can be applied in an arbitrary or in a discriminatory manner. An enforceable policy cannot prohibit an activity due to the nature of its effects, e.g., potential marine mammal ship strikes, if other activities pose the same kind and degree of risk and are not prohibited. There must be a sufficient justification for discriminatory policies. NOAA would evaluate such proposed program changes to determine if such discrimination is warranted and also whether a prohibition of an activity would violate the national interest objectives of the CZMA. PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 Paragraph (c) codifies long-standing NOAA practice and guidance when previously NOAA-approved enforceable policies are no longer enforceable for purposes of federal consistency review. If an underlying enforceable mechanism, e.g., a state law, is repealed or changed in such a way so that an enforceable policy is no longer supported by the law, or a court determines a policy is not enforceable, then the policy is no longer legally binding under state law and could no longer be used for federal consistency purposes. The same applies if a policy previously approved by NOAA is subsequently preempted by federal law or impacted by a court decision. Paragraph (d) describes NOAA criteria for states to amend their lists of federal actions subject to federal consistency review and to propose geographic location descriptions (GLDs) to review federal actions outside the coastal zone, either landward or seaward. This paragraph focuses on the need for a state to make an adequate justification based on reasonably foreseeable effects to the state’s coastal uses or resources. For NOAA to find that an activity in a proposed GLD outside the coastal zone may have coastal effects, a state must show that the impact from an activity will have a reasonably foreseeable effect to coastal uses or resources of the state. A state’s burden to demonstrate coastal effects means that a mere assertion that an activity in federal waters will have an impact is insufficient to make a finding of reasonably foreseeable coastal effects. Moreover, a state’s effects analysis must provide more than general assertions of impacts or that resources or uses are ‘‘important,’’ or should be reviewed because of the proximity of an activity to state coastal uses or resources. A persuasive coastal effects analysis should identify: 1. The affected uses (e.g., commercial and recreational fishing, boating, tourism, shipping, energy facilities) and resources (e.g., fish, marine mammals, reptiles, birds, landmarks). 2. Where and in what densities the uses and resources are found. 3. How the state has a specific interest in the resource or use. Be specific in showing their connection to the coastal zone of the state (e.g., economic values, harvest amounts, vulnerabilities, seasonal information relevant to the proposed activity). 4. Where the proposed activity overlaps with these resources, uses and values. 5. Impacts to the resources or uses from the proposed activity. 6. The causal connection to the proposed activity, including how any E:\FR\FM\08NOP1.SGM 08NOP1 Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Proposed Rules Lhorne on DSK30JT082PROD with PROPOSALS impacts from the activity results in reasonably foreseeable effects on the state’s coastal uses or resources. 7. Why any proposed mitigation may be inadequate. 8. Empirical data and information that supports the effects analysis and can be shown to be reliable; visualizes the affected area, resources and uses with maps; and shows values, trends and vulnerabilities. § 923.85 Procedural Requirements of Other Federal Law This section describes compliance and consultations under other federal law such as ESA, NHPA, MSFCMA or MMPA. This has to do with the nature of NOAA’s action in approving a program change, in that NOAA can approve or deny a program change, but cannot affect the state’s ability to enact a law and implement it at the state level. NOAA’s approval of any state or local provisions as enforceable policies of the state’s management program means those provisions can be used during a state’s CZMA federal consistency review. In addition, it is important to understand the nature of NOAA’s discretion for the review and approval of program changes when informally or formally consulting on Endangered Species Act, other federal consultations and addressing tribal concerns. The CZMA is not a delegated program; there are not federal CZMA standards, there is not a federal coastal zone, and NOAA does not implement management programs. The CZMA is a voluntary program and if a state chooses to participate it develops a management program unique to each state, based on state laws and policies pursuant to general program requirements in the CZMA and NOAA’s regulations. Once NOAA approves a state’s management program, NOAA cannot require a state to change its program. NOAA can, through periodic evaluations of a state’s management program under CZMA § 312, establish necessary actions if NOAA finds a state is not adhering to its NOAA-approved program, but NOAA can only recommend that a state change its program to create a different state standard or to address emerging issues. If NOAA finds that a state is not adhering to its management program and the state does not remedy the issue, NOAA’s only recourse is to impose financial sanctions by withholding a part of a state’s annual CZMA implementation grant until the state remedies the issue or ultimately NOAA could decertify a state’s management program. VerDate Sep<11>2014 14:20 Nov 07, 2016 Jkt 241001 If a state submits a program change, NOAA can approve or disapprove that program change. When NOAA reviews a program change, NOAA has a limited ability to require a state to make changes to state policies. If NOAA disapproves, this does not require a state to change state law. Therefore, there is no effect from NOAA’s denial on the implementation of state law at the state (or local government) level. NOAA’s denial means the disapproved state policy is not part of the state’s NOAA approved management program and cannot be used for CZMA federal consistency purposes. NOAA cannot use a program change to require changes to other parts of a state’s management program. VI. Miscellaneous Rulemaking Requirements Executive Order 12372: Intergovernmental Review This program is subject to Executive Order 12372. Executive Order 13132: Federalism Assessment NOAA has concluded that this regulatory action is consistent with federalism principles, criteria, and requirements stated in Executive Order 13132. The proposed changes in the program change regulations are intended to facilitate federal agency coordination with coastal states, and ensure compliance with CZMA requirements. The CZMA and these revised implementing regulations promote the principles of federalism articulated in Executive Order 13132 by granting the states a qualified right to amend their federally-approved management programs to address activities that affect the land and water uses or natural resources of state coastal zones and to apply these amended management programs to federal actions through the CZMA federal consistency provision. CZMA § 307 and NOAA’s implementing regulations (15 CFR part 930) balance responsibilities between federal agencies and state agencies whenever federal agencies propose activities, or applicants for a required federal license or permit propose to undertake activities, affecting state coastal uses or resources. Through the CZMA, federal agencies are required to carry out their activities in a manner that is consistent to the maximum extent practicable with federallyapproved state management programs while licensees and permittees are to be fully consistent with the state programs. The CZMA and these implementing regulations, rather than preempting a PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 78521 state, provide a mechanism for it to object to federal actions that are not consistent with the state’s management program. A state objection prevents the issuance of the federal permit or license, unless the Secretary of Commerce overrides the objection. Because the CZMA and these regulations promote the principles of federalism and enhance state authorities, no federalism assessment need be prepared. Executive Order 12866: Regulatory Planning and Review This regulatory action is not significant for purposes of Executive Order 12866. Regulatory Flexibility Act The Chief Counsel for Regulation for the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The term ‘‘small entity’’ includes small businesses, small organizations, and small governmental jurisdictions. The Regulatory Flexibility Act (RFA) defines a small jurisdiction as any government of a district with a population of less than 50,000. The existing regulations do not have a significant economic impact on a substantial number of small entities and, thus, these clarifying changes will not result in any additional economic impact on affected entities. The proposed rule revises provisions of the program change regulations to provide for a more effective and efficient process for states to amend their management programs, NOAA to review the proposed changes, and for federal agencies and the public to comment. The program change regulations, and the proposed rule, primarily affect states; the proposed changes do not impose any requirements on small entities. The existing regulations do not, and the proposed rule will not, if adopted, have a significant economic impact on a substantial number of small entities. Accordingly, an Initial Regulatory Flexibility Analysis was not prepared. Paperwork Reduction Act This proposed rule contains no additional collection-of-information requirement subject to review and approval by the Office of Management and Budget under the Paperwork Reduction Act; rather it changes the manner in which states provide information to NOAA and, in some E:\FR\FM\08NOP1.SGM 08NOP1 78522 Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Proposed Rules cases, eliminates or reduces information currently required. National Environmental Policy Act NOAA has concluded that this proposed regulatory action does not have the potential to pose significant impacts on the quality of the human environment. Further, NOAA has concluded that this proposed rule, if adopted, would not result in any changes to the human environment. Therefore, NOAA has concluded that, pursuant to sections 5.05 and 6.03c.3(i) of NAO 216–6, this proposed rulemaking does not have a significant impact on the human environment and is categorically excluded from the need to prepare an environmental assessment or environmental impact statement pursuant to the requirements of NEPA in accordance with NAO 216–6. See also the description above on NEPA compliance for program changes. Dated: October 24, 2016. W. Russell Callender, Assistant Administrator for Ocean Services, National Oceanic and Atmospheric Administration. List of Subjects in 15 CFR Part 923 Administrative practice and procedure, Coastal zone, Reporting and recordkeeping requirements. For the reasons stated in the preamble, NOAA proposes to revise 15 CFR part 923 as follows: PART 923—COASTAL ZONE MANAGEMENT PROGRAM REGULATIONS 1. The authority citation continues to read as follows: ■ Authority: 16 U.S.C. 1451 et seq.; 31 U.S.C. 6506; 42 U.S.C. 3334; Sections 923.92 and 923.94 are also issued under E.O. 12372, July 14, 1982, 3 CFR 1982 Comp. p. 197, as amended by E.O. 12416, April 8, 1983, 3 CFR 1983 Comp. p. 186. ■ 2. Revise subpart H to read as follows: Lhorne on DSK30JT082PROD with PROPOSALS Subpart H—Changes to Approved Management Programs Sec. 923.80 General. 923.81 Program change procedures, deadlines, public notice and comment and application of federal consistency. 923.82 Program change submissions. 923.83 Program change materials. 923.84 Program change decision criteria. 923.85 Procedural requirements of other Federal law. § 923.80 General. (a) This subpart establishes the criteria and procedures by which any proposed change to approved VerDate Sep<11>2014 14:20 Nov 07, 2016 Jkt 241001 management programs shall be made. The term ‘‘program change’’ includes all terms used in section 306(e) of the Act, including amendment, modification or other program change. Draft program changes submitted to NOAA for informal review and comment are not subject to these requirements. Unless otherwise specified, the term ‘‘NOAA’’ refers to the Office for Coastal Management, within NOAA’s National Ocean Service. (The Office for Coastal Management was formerly known as the Office of Ocean and Coastal Resource Management and the Coastal Services Center.) (b) Pursuant to section 306(e) of the Act, a coastal state may not implement any change to a management program as part of its management program unless the state submits, and NOAA approves, the change for incorporation into the state’s federally-approved management program. A state shall not use a state or local government policy or requirement as an ‘‘enforceable policy’’ under 16 U. S.C. 1453(6a) and § 930.11(h) of this subchapter for purposes of federal consistency under 16 U.S.C. 1456 and part 930 of this subchapter, unless NOAA has approved the incorporation of, and subsequent changes to, the state or local policy into the state’s management program under this subpart. State or local government law not approved by NOAA as part of a state’s management program remain legal requirements for state and local government purposes, but not for CZMA federal consistency purposes. (c) For purposes of this subpart, program changes include changes to enforceable policies as well as changes to one or more of the following management program areas under part 923: Uses Subject to Management (Subpart B); Special Management Areas (Subpart C); Boundaries (Subpart D); Authorities and Organization (Subpart E); and Coordination, Public Involvement and National Interest (Subpart F). (d) The phrase ‘‘enforceable policies’’ used in this subpart is described in 16 U.S.C. 1453(6a) and § 930.11(h) of this subchapter. Enforceable policies are the only policies states can use to determine whether a federal action is consistent with its management program under section 307, the Federal Consistency provision, of the Act (16 U.S.C. 1456 and part 930 of this subchapter). (e) Suspension of grants. Pursuant to section 306(e)(1) of the Act and § 923.135 of this subchapter, NOAA may suspend all or part of any grant or cooperative agreement made under section 306 of the Act if the state has failed to submit a program change PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 identified as a necessary action under section 312 of the Act and part 923, subpart L (Review of Performance) and pursuant to the requirements for NOAA to notify the Governor of a state under the enforcement provisions of § 923.135 of this subchapter. § 923.81 Program change procedures, deadlines, public notice and comment and application of federal consistency. (a) Pursuant to section 306(d)(6) of the Act and § 930.11(o) of this subchapter, all program changes shall be submitted to NOAA by: The Governor of a coastal state with an approved management program; the head of the single state agency designated under the management program to be the lead state agency for administering the CZMA; or the head of an office within the designated single state agency if the state has authorized that person to submit program changes. Program changes may be submitted to NOAA on a cyclical basis (e.g., quarterly, twice a year, annually) or as the changes occur. (1) One (1) copy shall be submitted electronically using the Program Change Form on NOAA’s Program Change Web site and addressed to: Chief, Stewardship Division, Office for Coastal Management, NOAA, 1305 East-West Hwy., 10th Floor, Silver Spring, MD 20910. (i) If a state is not able to electronically send all or part of a program change to NOAA through NOAA’s Program Change Web site, the state and NOAA shall agree to an alternative method (e.g., email, electronic CD, or a state Web site). In such instances, NOAA will, to the extent practicable, post the program change to NOAA’s Program Change Web site. (2) All deadlines and timeframes under this subpart shall start on the first full business day after the day NOAA receives a program change (Day 1). For example, if a submission is received on a Thursday, day one of NOAA’s review period would be Friday; if the day of receipt is Friday and Monday is a federal holiday, Day 1 would be Tuesday. All days, starting with Day 1, are included in the calculation of total time for a deadline, including weekends and federal holidays. A state may request that NOAA’s review period begin on a specified date following receipt by NOAA. (b) When NOAA receives a program change, NOAA shall notify the state (via email or letter) of the date the program change was received and NOAA’s expected decision deadline. NOAA will also notify the state if NOAA determines the submission is incomplete. If NOAA E:\FR\FM\08NOP1.SGM 08NOP1 Lhorne on DSK30JT082PROD with PROPOSALS Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Proposed Rules determines a submission is incomplete, NOAA shall inform the state that the program change review timeline shall not start until the missing information is submitted. During NOAA’s review of a program change request, NOAA may request additional information that NOAA needs to make its decision. (c) NOAA shall respond to the state (via email or letter) within 30 calendar days after the date NOAA receives a program change. The 30 days starts on Day 1. If NOAA does not respond within the 30-day period, then NOAA’s approval is presumed. NOAA may extend its review period up to 120 days after receipt of a program change request, if NOAA so notifies the state during the 30-day period. NOAA can extend beyond 120 days only as necessary to meet the requirements of the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.). NOAA shall inform the state via email or letter whether NOAA approves, approves in part, approves with qualifications or denies the incorporation of the program change into the state’s management program. (d) Pre-submission consultation. States shall, to the extent practicable, consult with NOAA prior to state adoption of new or revised state laws, policies, regulations, and other changes the state intends to submit to NOAA as a program change. States are encouraged to submit draft program changes to NOAA for informal review and comment prior to submitting a program change. If consulted, NOAA shall review draft submissions to identify issues that would need to be addressed in the formal submission. (e) Public Notice and Comment. (1) A state shall post a public notice of its program change on the state’s management program Web site in a conspicuous manner, and email or mail the public notice to local and regional offices of relevant federal agencies, federal agency CZMA headquarter contacts identified on NOAA’s federal consistency Web site, affected local governments and state agencies, and to individuals requesting direct notice. The state shall post its public notice prior to, or on the same date as, the date the state submits the electronic program change to NOAA. NOAA’s program change review period shall not start until NOAA informs the state that it has received the program change. To meet the requirement for direct public notice (via email or mail), states are encouraged to maintain a coastal management listserv or mailing list. In addition to posting the public notice on the state’s Web site and notifying the parties described above, states may, but VerDate Sep<11>2014 14:20 Nov 07, 2016 Jkt 241001 are not required to, publish the notice in any state bulletin or newspaper. (2) A state’s public notice shall: (i) Describe the nature of the program change; (ii) If applicable, identify any new, modified or deleted enforceable policies of the management program; (iii) Indicate that any comments on the content of the program change shall be submitted to NOAA through NOAA’s Program Change Web site within 21 calendar days of the date NOAA’s review period starts; and (3) NOAA shall post all program changes on its Program Change Web site where any interested party may review or download materials. NOAA shall also post on its Program Change Web site deadlines, extensions and any comments received. For each program change posted on NOAA’s Web site, NOAA shall notify the federal agency CZMA headquarter contacts (identified on NOAA’s federal consistency Web site) via email. In addition, any party may request through the Program Change Web site that NOAA notify them via email when program changes are submitted by one or more state(s). NOAA’s email shall also state that any party may submit comments to NOAA on a program change request within 21 calendar days from the date NOAA’s review period starts. (4) NOAA may, at its discretion, extend the public comment period or hold a public hearing. NOAA shall only consider holding a public hearing for a program change that would substantially change a management program and/or be controversial. (5) NOAA shall post its program change decisions on its CZMA Program Change Web site and shall notify, by email, federal agency CZMA headquarter contacts and individuals requesting such notice. A state shall post NOAA’s decision regarding a state’s program change on the state agency’s Web site. (f) Application of approved program changes for federal consistency purposes under section 307 of the Act (16 U.S.C. 1456) and part 930 of this subchapter. Changes to a state’s management program and enforceable policies shall be applicable for federal consistency purposes on the date NOAA approves the changes. The effective date for the approved changes will be the date on NOAA’s approval letter. NOAA will post its program change decision letters on its Program Change Web site. Approved program changes shall not apply retroactively to state federal consistency reviews under part 930 of this subchapter, subparts C, D, E or F, for proposed federal actions where a PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 78523 federal agency (subpart C), applicant (subpart D), person (subpart E), or applicant agency (subpart F) had submitted to the management program a consistency determination or consistency certification prior to NOAA’s approval, except as allowed by part 930 of this subchapter, unless the proposed federal action was finalized or authorized and there is a substantial change, amendment or renewal proposed for the federal action on or after the date of NOAA’s approval of a program change, pursuant to the applicable subpart of part 930. § 923.82 Program change submissions. (a) As required by CZMA § 306(e)(3)(A), coastal states may not implement a change as part of its approved management program unless the change is approved by NOAA. In accordance with § 923.81 and § 923.83, states shall submit program changes to NOAA for approval using the Program Change Form on NOAA’s Program Change Web site. (b) The following types of program changes shall be approved by NOAA as long as they satisfy the decision criteria in § 923.84 and do not raise issues under any federal laws, as described in § 923.85: (1) Editorial or non-substantive changes (e.g., citation changes, minor technical changes, or changes to state agency name) to state laws, regulations, enforceable policies, local government coastal management programs or plans that contain enforceable policies, and other authorities; (2) Changes to special area management plans that do not change a state’s coastal zone boundary, enforceable policies or geographic location descriptions, and are not otherwise used by the state for federal consistency review; (3) Changes to the organization of a state’s management program if the management program’s structure and responsibilities will remain intact; and (4) Changes to enforceable policies previously approved by NOAA that make minor substantive revisions consistent with the scope and application of the previously approved enforceable policy. If the proposed changes are not consistent with the scope and application of the previously approved enforceable policy, then NOAA shall more closely review the changes to ensure they satisfy the decision criteria. (c) Any program change that is not described in paragraph (b) of this section shall be reviewed by NOAA to ensure the state’s management program will remain approvable if the proposed E:\FR\FM\08NOP1.SGM 08NOP1 78524 Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Proposed Rules program change is approved. These changes include: (1) Changes to the five program approval areas, including: Uses Subject to Management (subpart B of this part); Special Management Areas (subpart C of this part); Boundaries (subpart D of this part); Authorities and Organization (subpart E of this part); and Coordination, Public Involvement and National Interest (subpart F of this part); (2) Changes to enforceable policies, including modifications, additions and deletions; (3) Changes to provisions that are not enforceable policies, but which a state may use to evaluate the scope or applicability of an enforceable policy (e.g., definitions, advisory statements); (4) Changes to local government coastal management programs or plans if those local programs or plans contain enforceable policies that the state uses for federal consistency review. States are not required to submit program changes for local government coastal management programs or plans that do not contain enforceable policies for federal consistency review; and (5) Changes or additions to the state’s federal consistency list or geographic location descriptions (part 930 of this subchapter); (6) Changes or additions to Necessary Data and Information (930.58 of this subchapter). (d) Changes to state Clean Air Act (CAA) and Clean Water Act (CWA) Pollution Control Requirements. Pursuant to section 307(f) of the Act, requirements established by the CWA (33 U.S.C. 1251–1387) and the CAA (42 U.S.C. 7401–7671), or established by the Federal Government or by any state or local government pursuant to the CWA and CAA shall be incorporated in state management programs and shall be the water pollution control and air pollution control requirements applicable to such management program. Therefore, states are not required to submit as program changes any changes to state CAA and CWA provisions. Lhorne on DSK30JT082PROD with PROPOSALS § 923.83 Program change materials. (a) All program changes submitted to NOAA shall be submitted in accordance with § 923.81. Using the Program Change Form, a state shall provide a brief description of the proposed program change(s) and a current version of the document(s) containing the program change (e.g., text of the revised statute, regulation, policy, map, etc.). States shall use the Program Change Form to provide information for: (1) Changes to the five program approval areas. States shall indicate if VerDate Sep<11>2014 14:20 Nov 07, 2016 Jkt 241001 the proposed program change(s) affect any of the five management program approval areas under this part: (i) Uses Subject to Management (subpart B); (ii) Special Management Areas (subpart C); (iii) Boundaries (subpart D); (iv) Authorities and Organization (subpart E); or (v) Coordination, Public Involvement and National Interest (subpart F). The state shall refer to its program approval findings and any other relevant documents and make a statement that, to the best of the state’s knowledge, its management program would continue to satisfy these five areas if the proposed changes are approved by NOAA. (2) Changes or additions to enforceable policies. States shall identify new, revised or deleted enforceable policies and describe the: (i) Title of the policy or statutory section, if applicable; (ii) If previously approved by NOAA, whether the proposed policy revisions are consistent with the scope and application of the previously approved version; (iii) State legal citation for the policy (do not use public law numbers); (iv) Date the policy was last updated by the state; (v) Date the policy was last approved by NOAA; and (vi) State enforceable mechanism that makes the policy enforceable under state law. The phrase ‘‘enforceable mechanism’’ means a state authority that makes an enforceable policy legally binding under state law, as described in this subpart and § 930.11(h) of this subchapter. Examples of an enforceable mechanism include state statutes, regulations, permitting programs, local government ordinances or court decisions. If an enforceable mechanism is changed so that an enforceable policy is no longer legally binding under state law, then the enforceable policy shall be submitted as a program change with a new underlying state enforceable mechanism; otherwise the policy is no longer enforceable for purposes of state CZMA federal consistency reviews under part 930 of this subchapter. (3) Changes or additions to the state’s federal consistency list or geographic location descriptions. (i) For each new or revised listed federal action, states shall describe the: (A) type of federal action; (B) specific federal statutory authority; (C) responsible federal agency; and (D) reasonably foreseeable effects to the uses and resources of the state’s coastal zone (§ 923.84(d) of this part). PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 (ii) For each new or revised geographic location description, states shall describe the: (A) geographic location description, using specific geographic boundaries; (B) listed federal actions to be included within a geographic location description; and (C) reasonably foreseeable effects to the uses and resources of the state’s coastal zone. (iii) Exception for state and federal agreements made as part of a regional ocean plan prepared by a Regional Planning Body under the National Ocean Policy Executive Order 13547 (75 FR 43022 (July 22, 2010)). Geographic location descriptions and changes to state lists of federal license or permit activities that describe general concurrences for minor federal license or permit activities resulting from state and federal agency agreements as part of a Regional Planning Body’s regional ocean plan, and agreed to by NOAA through the Regional Planning Body process, shall be part of a state’s management program once the Regional Planning Body’s regional ocean plan is approved by the Regional Planning Body and certified by the National Ocean Council. No further submission to NOAA shall be required; the requirements of § 930.53 of this subchapter and this part for notification to federal agencies and the public shall be met by the Regional Planning Body process. (4) Changes to Necessary Data and Information. States shall describe any changes or additions to Necessary Data and Information approved by NOAA in accordance with § 930.58 of this subchapter and explain why such information is necessary in order for the state to commence its federal consistency review period. (5) NOAA’s decision criteria. The state shall indicate that the program change meets each of NOAA’s decision criteria in § 923.84. (6) Impacts relating to other federal laws. The state shall describe whether and how the program change will impact the following: (i) Resources or interests of any federally-recognized American Indian or Alaska Native tribal government. (ii) Threatened or endangered species listed under the federal Endangered Species Act (ESA); (iii) Historic properties designated under the National Historic Preservation Act (NHPA); (iv) Essential fish habitat designated under the Magnuson Stevens Fishery Conservation and Management Act (MSFCMA); E:\FR\FM\08NOP1.SGM 08NOP1 Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Proposed Rules (v) Marine mammals managed under the Marine Mammal Protection Act (MMPA); and (vi) Other resources managed under other federal statutes. (7) The state shall identify the state’s Web site where the public notices for the notification and submission requests are, or will be, located and where, if applicable, state documents related to the request may be viewed. (8) The state shall submit to NOAA any substantive correspondence between the state and federal agencies (not including NOAA’s Office for Coastal Management) concerning the development of the changes that are the subject of the program change request. (9) The state shall indicate if the program change was developed pursuant to section 309 of the Act (16 U.S.C. 1456b—Coastal zone enhancement grants) and, if so, shall state the strategy title and years the strategy was carried out. (10) The state shall indicate if the program change was developed as a necessary action pursuant to section 312 of the Act (16 U.S.C. 1458—Review of performance) and, if so, shall briefly describe the necessary action. Lhorne on DSK30JT082PROD with PROPOSALS § 923.84 Program change decision criteria. (a) NOAA shall review all program changes on a case-by-case basis. NOAA shall determine whether a management program, if changed, would continue to satisfy the applicable program approval criteria of CZMA § 306(d) and subparts B through F of this part and the requirements of this subpart (subpart H). (b) Enforceable policies. In order for NOAA to approve the incorporation of a new or revised enforceable policy into a state’s management program, the policy shall: (1) Be legally binding under state law; (2) Contain standards of sufficient specificity to guide public and private uses. A policy is not enforceable if it merely directs a state agency to develop regulations or standards. (i) Definitions, procedures and information requirements are essential elements of determining compliance with regulatory and permit standards. As such, a state law or regulation that contains numerous standards, definitions, procedures, and information requirements may be considered enforceable in its entirety after consultation with NOAA. If NOAA determines that a law or regulation may be considered enforceable in its entirety, a state does not have to identify nonenforceable parts of the law or regulation. (3) Apply only to areas and/or entities under state jurisdiction; VerDate Sep<11>2014 14:20 Nov 07, 2016 Jkt 241001 (4) Not refer to or otherwise purport to apply to federal agencies, federal lands or federal waters. The Act does not authorize states to establish regulatory standards for federal agencies or for federal lands or waters. A state policy that would regulate or otherwise establish standards for federal agencies or federal lands or waters shall not meet the Act’s definition of ‘‘enforceable policy’’ (i.e., legally binding under state law) under 16 U.S.C. 1453(6a). States apply their NOAA-approved enforceable policies to federal actions, regardless of location, through CZMA federal consistency reviews under 16 U.S.C. 1456 and part 930 of this subchapter; (5) Not, on its face, be preempted by federal law. If a state policy seeks to regulate an activity where state regulation is preempted by federal law, the policy is not legally binding under state law and shall not be an enforceable policy under 16 U.S.C. 1453(6a). Policies previously approved by NOAA as enforceable policies shall no longer be enforceable if federal law enacted after NOAA’s approval subsequently preempts the state policy; (6) Not incorporate by reference other state or local requirements that are not identified, described and evaluated as part of the program change request. Any state or local requirements incorporated by reference shall not be applicable for federal consistency review purposes unless separately approved by NOAA as enforceable policies; (7) Not discriminate against a particular type of activity or entity. Enforceable policies shall be applied to all relevant public and private entities that would have similar coastal effects. Enforceable policies may be specific to a particular type of activity or entity if NOAA agrees that a state has demonstrated that the activity or entity present unique circumstances; or (8) Not adversely affect the national interest in the CZMA objectives described in 16 U.S.C. 1451 and 1452. (c) Effect of Prior Program Change Approvals. If enforceable policies previously approved by NOAA become obsolete or non-enforceable through application of subsequently enacted state or federal law, such policies will no longer be enforceable for purposes of CZMA federal consistency review. For example, a state law change may repeal a previous policy or may change the policy in a manner that changes the scope and application of the policy. In such cases, the previously approved enforceable policy is no longer applicable under state law and the new or revised policy is not applicable for federal consistency purposes until that policy has been submitted by the state PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 78525 as a program change and approved by NOAA. A previously approved enforceable policy may also become non-enforceable and no longer legally binding under state law if subsequent federal law preempts state regulation of a particular activity. (d) Changes to a management program’s federal consistency list or a new or revised geographic location description under part 930 of this subchapter, subparts C, D, E, F or I. For changes to a management program’s list of federal actions or a new or revised geographic location description, the state’s effects analysis shall be based on information that would allow NOAA to find that the listed activity, either within the state’s coastal zone or within a geographic location described outside the state’s coastal zone, would have reasonably foreseeable effects on the uses or resources of the state’s coastal zone. A state’s analysis asserting impacts to uses or resources outside of the coastal zone shall not, by itself, demonstrate a coastal effect; rather, the state shall describe a causal connection of how an impact outside the coastal zone could result in a coastal effect. A state’s effects analysis shall not be based on unsupported conclusions, speculation or the mere existence of coastal uses or resources within a geographic location. A state’s coastal effects analysis shall, to the extent practicable, identify: (1) The affected uses (e.g., commercial and recreational fishing, boating, tourism, shipping, energy facilities) and resources (e.g., fish, marine mammals, reptiles, birds, landmarks). (2) Where and in what densities the uses and resources are found. (3) How the state has a specific interest in the resource or use. Be specific in showing their connection to the coastal zone of the state (e.g., economic values, harvest amounts, vulnerabilities, seasonal information relevant to the proposed activity). (4) Where the proposed activity overlaps with these resources, uses and values. (5) Impacts to the resources or uses from the proposed activity. (6) The causal connection to the proposed activity, including how the impacts from the activity results in reasonably foreseeable effects on the state’s coastal uses or resources. (7) Why any proposed mitigation may be inadequate. (8) Empirical data and information that supports the effects analysis and: can be shown to be reliable; visualizes the affected area, resources and uses with maps; and shows values, trends and vulnerabilities. E:\FR\FM\08NOP1.SGM 08NOP1 78526 Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Proposed Rules Lhorne on DSK30JT082PROD with PROPOSALS § 923.85 Procedural requirements of other Federal law. (a) NOAA shall determine on a caseby-case basis whether each program change requires NOAA to take additional actions under any other federal requirement described below. (1) If a state’s program change will affect the resources or interests of any federally-recognized American Indian or Alaska Native tribal government (tribe), NOAA shall contact the affected tribe(s) and determine if Government-toGovernment consultation is desired under Executive Order 13175 (Nov. 6, 2000). (2) If, for the purposes of ESA, NHPA, MSFCMA or MMPA compliance, NOAA determines that a state’s program change will have effects on listed threatened or endangered species, historic properties, essential fish habitat or marine mammals, then NOAA shall determine if consultation is needed with the applicable federal agency under the ESA, NHPA, MSFCMA and MMPA. (3) When NOAA determines whether to consult under other federal statutes or tribal executive orders, NOAA’s ability to require changes to a state’s proposed program change are limited by the following: (i) Once NOAA approves a state’s management program, NOAA cannot require a state to change its program. NOAA can, through periodic evaluations of a state’s management program under section 312 of the Act, establish necessary actions if NOAA finds a state is not adhering to its NOAA-approved program, but NOAA can only recommend that a state change its program to create a different state standard or to address emerging issues; and (ii) NOAA can approve or disapprove a program change request. When NOAA reviews a program change, NOAA has a limited ability to require a state to make changes to state policies. If NOAA disapproves a program change request, this does not require a state to change state law. Therefore, there is no effect from NOAA’s denial on the implementation of state law at the state (or local government) level. NOAA’s denial means the disapproved state policy is not part of the state’s NOAAapproved management program and cannot be used for CZMA federal consistency purposes. NOAA cannot use a program change to require changes to other parts of a state’s management program. [FR Doc. 2016–26680 Filed 11–7–16; 8:45 am] BILLING CODE 3510–08–P VerDate Sep<11>2014 14:20 Nov 07, 2016 Jkt 241001 DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 1 [Docket No. FDA–2012–D–1002] Questions and Answers Regarding Food Facility Registration (Seventh Edition); Draft Guidance for Industry; Availability AGENCY: Food and Drug Administration, HHS. ACTION: Notification of availability. The Food and Drug Administration (FDA or we) is announcing the availability of a draft guidance for industry entitled ‘‘Questions and Answers Regarding Food Facility Registration (Seventh Edition): Guidance for Industry.’’ This draft guidance contains 15 sections of a multisection guidance intended to provide updated information relating to the food facility registration requirements in the Federal Food, Drug, and Cosmetic Act (the FD&C Act). DATES: Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that we consider your comment on the draft guidance before we begin work on the final version of the guidance, submit either electronic or written comments on the draft guidance by February 6, 2017. ADDRESSES: You may submit comments as follows: SUMMARY: Electronic Submissions Submit electronic comments in the following way: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to http:// www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else’s Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on http://www.regulations.gov. • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 written/paper submission and in the manner detailed (see ‘‘Written/Paper Submissions’’ and ‘‘Instructions’’). Written/Paper Submissions Submit written/paper submissions as follows: • Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA–305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852. • For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in ‘‘Instructions.’’ Instructions: All submissions received must include the Docket No. FDA– 2012–D–1002 for the draft guidance for industry entitled ‘‘Questions and Answers Regarding Food Facility Registration (Seventh Edition).’’ Received comments will be placed in the docket and, except for those submitted as ‘‘Confidential Submissions,’’ publicly viewable at http://www.regulations.gov or at the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday. • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states ‘‘THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.’’ The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on http:// www.regulations.gov. Submit both copies to the Division of Dockets Management. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as ‘‘confidential.’’ Any information marked as ‘‘confidential’’ will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA’s posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: http://www.fda.gov/ E:\FR\FM\08NOP1.SGM 08NOP1

Agencies

[Federal Register Volume 81, Number 216 (Tuesday, November 8, 2016)]
[Proposed Rules]
[Pages 78514-78526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26680]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / 
Proposed Rules

[[Page 78514]]



DEPARTMENT OF COMMERCE

National Oceanic Atmospheric Administration

15 CFR Part 923

[Docket No. 080416573-6895-02]
RIN 0648-AW74


Changes to the Coastal Zone Management Act Program Change 
Procedures

AGENCY: Office for Coastal Management, National Ocean Service, National 
Oceanic Atmospheric Administration (NOAA), Department of Commerce 
(Commerce).

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) 
wants to provide states and NOAA with a more efficient process for 
making changes to state coastal management programs (``management 
programs''). NOAA proposes to revise the Coastal Zone Management Act 
(CZMA) program change regulations and associated guidance (Program 
Change Guidance (July 1996) and Addendum (November 2013)) within our 
regulations. Under the CZMA, a coastal state may not implement any 
amendment, modification, or other change as part of its approved 
management program unless the amendment, modification, or other change 
is approved by the Secretary of Commerce under this subsection. Once 
NOAA approves the incorporation of a change into a management program, 
any new or amended management program enforceable policies are applied 
to federal actions through the CZMA federal consistency provision. This 
proposed rule addresses the issues raised in NOAA's Advanced Notice of 
Proposed Rulemaking, 73 FR 29093 (May 20, 2008) (ANPR) to: Provide a 
more efficient process for states and NOAA to make changes to state 
management programs; remove unnecessary requirements in the current 
regulations; establish program change documentation that all states 
would adhere to; continue to ensure that federal agencies and the 
public have an opportunity to comment to NOAA on a state's proposed 
change to its management program; and comply with the requirements of 
the CZMA and other applicable federal law. The proposed rule also 
addresses comments submitted on the ANPR.

DATES: Comments on this notice must be received by January 9, 2017.

ADDRESSES: You may submit comments on this proposed rule, identified by 
NOAA-NOS-2016-0137, by either of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal www.regulations.gov. To 
submit comments via the e-Rulemaking Portal, first click the ``Submit a 
Comment'' icon, then enter NOAA-NOS-2016-0137 in the keyword search. 
Locate the document you wish to comment on from the resulting list and 
click on the ``Submit a comment'' icon on the right of that line.
     Mail: Submit written comments to Mr. Kerry Kehoe, Federal 
Consistency Specialist, Office for Coastal Management, NOAA, 1305 East-
West Highway, 10th Floor, N/OCM6, Silver Spring, MD 20910. Attention: 
CZMA Program Change Comments.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NOS. Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are a part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) submitted voluntarily by the 
sender will be publicly accessible. Do not submit confidential business 
information, or otherwise sensitive or protected information. NOS will 
accept anonymous comments (enter ``N/A'' in the required fields if you 
wish to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file 
formats only.

FOR FURTHER INFORMATION CONTACT: Mr. Kerry Kehoe, Federal Consistency 
Specialist, Office for Coastal Management, NOAA, at 240-533-0782 or 
kerry.kehoe@noaa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    Unless otherwise specified, the term ``NOAA'' refers to the Office 
for Coastal Management, within NOAA's National Ocean Service. The 
Office for Coastal Management formed in 2014 through the merger of the 
Office of Ocean and Coastal Resource Management and the Coastal 
Services Center.
    The CZMA (16 U.S.C. 1451-1466) 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 established the National 
Coastal Zone Management Program, a voluntary program for states. If a 
state decides to participate in the program it must develop and 
implement a comprehensive management program pursuant to federal 
requirements. See CZMA Sec.  306(d) (16 U.S.C. 1455(d)); 15 CFR part 
923. Of the thirty-five coastal states that are eligible to participate 
in the National Coastal Zone Management Program, thirty-four have 
federally-approved management programs. Alaska is currently not 
participating in the program.
    An important component of the National Coastal Zone Management 
Program is that state management programs 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. 1451(i) and 
(m), 1452(2)(H) and (I), 1452(4) and (5), 1455(d)(1) and (3)(B), and 
1456. The comprehensive state management programs must address the 
following areas pursuant to 15 CFR part 923:
    1. Uses Subject to Management (Subpart B);
    2. Special Management Areas (Subpart C);
    3. Boundaries (Subpart D);

[[Page 78515]]

    4. Authorities and Organization (Subpart E); and
    5. Coordination, Public Involvement and National Interest (Subpart 
F).
    NOAA approval is required for the establishment of a state 
management program. Once approved, changes to one or more of the 
program management areas listed above, including new or revised 
enforceable policies, must be submitted to NOAA for approval through 
the program change process.
    Program changes are important for several reasons: The CZMA 
requires states to submit changes to their programs to NOAA for review 
and 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; and the CZMA ``federal consistency'' provisions 
require that federal actions that have reasonably foreseeable coastal 
effects be consistent with the enforceable policies of federally-
approved management programs. The state-federal partnership is a 
cornerstone of the CZMA. The primacy of state decisions under the CZMA 
and compliance with the CZMA federal consistency provision is balanced 
with adequate consideration of the national interest in CZMA 
objectives; the opportunity for federal agency input into the content 
of state management programs; NOAA evaluation of management programs 
and NOAA review and approval of changes to management programs.
    In establishing and maintaining their federally-approved management 
programs, states must consider national interest objectives of the CZMA 
in addition to state and local interests. The national interest 
objectives of the CZMA include:
     Effective management, beneficial use, protection and 
development of the coastal zone (16 U.S.C. 1451(a));
     important ecological, cultural, historic and esthetic 
values of the coastal zone are essential to the well-being of all 
citizens (16 U.S.C. 1451(d));
     anticipating and planning for the effects of climate 
change (16 U.S.C. 1451(l));
     managing coastal development to minimize the loss of life 
and property caused by improper development and coastal storms (16 
U.S.C. 1452(2)(B)); and
     giving priority consideration to coastal-dependent uses 
and orderly processes for siting major facilities related to national 
defense, energy, fisheries, recreation, and ports and transportation 
(16 U.S.C. 1452(2)(D)).
    Some of the important issues NOAA must consider when evaluating 
program changes include whether the change would: (1) Affect CZMA 
national interest objectives; (2) attempt to regulate federal agencies, 
lands or waters, or areas outside state jurisdiction; (3) be preempted 
by federal law; (4) discriminate against particular coastal users or 
federal agencies; (5) include policies that are enforceable under state 
law; and (6) raise issues under the National Environmental Policy Act 
(NEPA), Endangered Species Act (ESA), Marine Mammal Protection Act 
(MMPA), National Historic Preservation Act (NHPA), Magnuson Stevens 
Fisheries Conservation and Management Act (MSFCMA) or other federal 
laws.
    NOAA review and approval of program changes is also important 
because the CZMA provides for federal agency and public participation 
in the content of a state's management program. NOAA can only approve 
management programs and changes to management programs after federal 
agencies and the public have an opportunity to comment on the content 
of the program change. Within the context of the CZMA federal 
consistency provisions, an enforceable policy is a state policy that 
has been incorporated into a state's federally-approved management 
program, 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. See 16 U.S.C. 1453(6a) and 15 CFR 930.11(h) (enforceable 
policy). 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 Sec.  
307 federal consistency provision requires that state enforceable 
policies are the standards that apply to federal agency activities, 
federal license or permit activities, outer continental shelf plans and 
federal financial assistance activities. 16 U.S.C. 1456; see also 15 
CFR 930.11(h). Therefore, federal agencies and the public must have an 
opportunity to review proposed substantive changes to a state's 
enforceable policies.
    Program changes are also important because the CZMA federal 
consistency provision applies 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 state management program 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 1970s. The CZMA was revised in 1990, 
in part, to place greater emphasis on state management program 
enforceable policies. This has led to an increase in the number of 
program changes submitted to NOAA and the workload for state and 
federal staff. 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. In 1996, NOAA 
made minor revisions to the regulations and also issued program change 
guidance that further described program change requirements. In 2013, 
NOAA issued an addendum to the 1996 program change guidance for added 
clarification. Over the years, states and NOAA have, at times, found 
the regulations difficult to interpret. For example, there has been 
confusion about determining: When a program change is ``routine'' 
versus an ``amendment;'' when a program change is ``substantial;'' what 
level of state analysis is required; what level of detail is needed for 
a policy to be enforceable; and what can be approved as an enforceable 
policy.

III. Objectives of the Proposed Rule

    NOAA's objectives in revising the program change regulations are 
to:
    1. Establish a clear, efficient and transparent process for program 
change review;
    2. Describe approval criteria and how these apply;
    3. Use terminology from the CZMA, including time lines and 
extensions;
    4. Eliminate the distinction between ``routine program changes 
(RPCs)'' and ``amendments.'' This would remove the program change 
analysis currently done by states to determine if a change is 
substantial, and therefore an amendment, and instead require states to 
describe the nature of the program change and indicate whether the 
state believes the program change would impact CZMA program 
approvability areas, national interest objectives, or compliance with 
other federal laws. The distinction between RPCs and amendments, and 
the substantiality analyses by states are administrative and paperwork 
burdens with little or no benefit;
    5. Continue to determine on a case-by-case basis the appropriate 
level of NEPA

[[Page 78516]]

analysis warranted. With over 35 years of reviewing program changes, 
NOAA has determined that the vast majority of program changes do not, 
for purposes of NEPA, significantly affect the human environment;
    6. Encourage states to use underline/strikeout documents for 
program change submissions to show changes to previously approved 
policies;
    7. Create a program change form that all states would use to submit 
changes to NOAA, easing state and NOAA paperwork burdens, promoting 
more consistent submissions and NOAA analyses, and expediting NOAA's 
review;
    8. Use a NOAA ``Program Change Web site'' through which NOAA would 
electronically post program changes and public comments received, and 
notify federal agencies and the public of the status of program 
changes; and
    9. Require states to post program change public notices on the 
state's management program Web site.
    In addition, the current regulations at 15 CFR part 923, subpart H, 
include ``termination of approved management programs.'' However, 
sanctions to and termination of management programs are described in 
detail in Subpart L--Review of Performance. Therefore, the proposed 
changes to subpart H would no longer include termination of approved 
management programs.

Comments on Advanced Notice of Proposed Rulemaking

    Comments were submitted on the ANPR by the Coastal States 
Organization (CSO), the U.S. Navy, the San Francisco Bay Conservation 
and Development Commission (BCDC) and the states of Delaware and 
Oregon. Most of the comments received on the ANPR supported NOAA's 
objectives and some comments offered suggestions for how some of these 
objectives might be achieved. NOAA presented eight points in the ANPR 
to help focus comments. These eight points and the comments submitted 
to NOAA are discussed below.
    1. Establishing a clearer and more efficient and transparent 
process for program change review.
    Comments: All commenters support this objective.
    For minor changes to enforceable policies, local plans, etc., a 
simplified approach could be an annual report to NOAA using a NOAA 
form/checklist that would describe the change, scope of the change and 
impacts to enforceable policies (Oregon).
    For changes to local enforceable policies such as comprehensive 
plan provisions, land use regulations and maps, Oregon suggests two 
alternatives:
    Alternative A--NOAA would allow a state to determine that a change 
in local enforceable policies is consistent with the underlying 
enforceable policies of state statute or rule that were previously 
approved by NOAA. A state would submit an annual summary of local 
amendments that are consistent with underlying state enforceable 
policies, along with the dates of approval by the state management 
program of the changes; or,
    Alternative B--NOAA and each state would enter into a Memorandum of 
Understanding that specifies the conditions under which a state would 
submit changes to local statutes and administrative rules and 
regulations, and local enforceable policies.
    The Navy made various recommendations:
    1. Develop specific and reasonable timelines that allow sufficient 
time for review, and set timelines for related issues such as 
extensions, preliminary approvals, and requesting mediation;
    2. The public should be provided immediate notice of proposed and 
final program changes;
    3. Impose a new requirement for states to assist with notification 
of the public and federal agencies that may wish to review proposed 
changes; and
    4. Use modern information technology by providing that posting the 
proposed changes on the Internet, when combined with an email 
notification roster (listserv), serves as official notification. Create 
Web sites that include the state's proposed text, NOAA decisions and 
NEPA documents and links to state management programs.
    NOAA Response: NOAA believes that the proposed program change 
regulations meet the proposal by Oregon for minor changes to state 
management programs. A state could submit program changes as they occur 
or on a cyclical basis (twice a year, once a year, etc.) and NOAA has 
included this in the proposed rule at Sec.  923.81(a). NOAA believes 
that Oregon's proposal for local plans and policies: (1) Is not 
compatible with the CZMA requirement that states submit program changes 
to NOAA for review and approval (16 U.S.C. 1455(e)); (2) would not 
provide adequate opportunity for NOAA to determine if the local 
policies are consistent with the decision criteria described in Sec.  
923.84; and (3) would not provide adequate opportunity for federal 
agency or public comment. NOAA believes that the program change 
submission process in proposed Sec.  923.82 provides an alternative for 
Oregon's proposal and still satisfies CZMA and NOAA approval 
requirements.
    In response to the Navy, NOAA believes that all of the Navy's 
recommendations have been met in the proposed rule regarding use of 
both state and NOAA Web sites and listservs to provide notice of and 
access to program changes and NOAA's decisions as well as relevant 
timeframes and decision dates that are dictated primarily by statute.
    2. Describing clearer approval/disapproval criteria and how these 
apply.
    Comments: All commenters support this objective. NOAA's decision 
criteria need to be clearly defined (BCDC).
    The only applicable criteria should be that (1) the program 
continues to meet the standards set forth in section 306 of the CZMA, 
and (2) that the revised program does not place an unacceptable burden 
on a federal agency operating in the coastal zone (CSO, Oregon).
    Allow state policies to refer to state and allowable federal codes 
and regulations without including the full text of those authorities 
(Delaware).
    NOAA Response: NOAA has described its program change decision 
criteria in proposed Sec.  923.84 and believes that the proposed 
criteria, as well as the program change documentation and form, will 
clearly define the NOAA decision process. NOAA disagrees that its only 
approval criteria should be a finding that the program continues to 
meet the program approval criteria and does not place an unacceptable 
burden on federal agencies. NOAA believes that in order to meet its 
obligations under the CZMA, the proposed decision criteria, which NOAA 
has been using as a matter of policy and practice for many years, are 
needed to comply with the CZMA and Congressional intent for NOAA 
oversight. In addition, determining what would be an ``unacceptable 
burden'' on federal agencies would be subjective at best; rather, 
NOAA's decision criteria provide a more objective and legally sound 
basis on which to evaluate state program changes.
    NOAA also disagrees that states should be able to impose standards 
``by reference'' when those referenced standards have not been 
subjected to the program change process, NOAA review and opportunity 
for federal agency and public comment.
    3. Using the simpler statutory language, including time lines, 
extensions, and preliminary approval.
    Comments: All commenters support this objective.
    NOAA Response: No response needed.

[[Page 78517]]

    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.''
    Comments: The commenters support keeping the routine concept and 
eliminating amendments. The level of analysis should be tailored to fit 
the complexity of the change to the state's program; assigning labels 
or categories to changes does not add to the process (BCDC, CSO, 
Delaware, Oregon).
    The Navy welcomes NOAA's initiative towards improving the 
transparency and ease of the coastal zone management program change 
review and approval process. The Navy supports NOAA's suggestion that 
truly routine program changes be identified and their handling 
streamlined. However, the Navy supports a separate process for 
amendments (substantial changes) so that affected federal agencies can 
comment on the proposals. The Navy stated that NOAA should review the 
types of changes that have been approved over recent years and develop 
a list of examples deemed to be routine, and NOAA should use the list 
to prepare descriptive criteria for routine changes.
    NOAA Response: Consistent with the comments from BCDC, CSO, 
Delaware and Oregon, the program change regulations will eliminate the 
distinction between ``routine program changes'' and ``amendments.'' 
States will be required to use a program change form to identify the 
changes being submitted for approval. The level of effort needed by 
NOAA to review changes will correspond to the type of changes proposed. 
All program changes will be submitted using the same process, which 
will eliminate the need for states to make the former distinction 
between amendments and routine program changes. Using the same process, 
in addition to a program change form, should make program change 
submissions and review more efficient for state and NOAA staff. Program 
changes identified in proposed Sec.  923.82(b) will be reviewed by NOAA 
in a more expedited manner.
    NOAA believes it has met the Navy's objectives without needing to 
use the current distinction between routine program changes and 
amendments. As explained elsewhere in the proposed rule, this 
distinction is unnecessary and the history of program changes shows 
that most changes are routine. Moreover, under the proposed program 
change regulations, NOAA will provide access to program change 
materials, send notices to federal agencies, and provide an opportunity 
for federal agencies to comment on all program changes. At the same 
time, administrative burdens on states and NOAA will be lessened.
    NOAA's proposed removal of the distinction between routine changes 
and amendments is based on NOAA's review of almost one thousand changes 
to management programs over the past thirty-five years. The vast 
majority of these changes were modifications to existing parts of NOAA 
approved management programs. In only a few instances did NOAA prepare 
an Environmental Assessment (EA) and Finding of No Significant Impact 
(FONSI) and even rarer an Environmental Impact Statement (EIS). The 
determining factors in the few instances when NOAA prepared an EA or 
EIS, were the magnitude of the change proposed by a state, usually 
involving a major new component to the management program or a major 
change in focus to the existing management program. Most of these also 
involved controversial positions by the state.
    From 1977 to March 2016, there have been approximately 862 changes 
to management programs approved by NOAA. Less than 2.5 percent, about 
twenty, were amendments; approximately 842 were RPCs. Seventy-five 
percent of the amendments (about fifteen) were before 1990 and many of 
these were for the addition of energy facility siting plans required by 
an amendment to the CZMA. For five of the amendments NOAA prepared an 
EIS (1998, 1991, 1997, 2004 and 2004) and two of these included 
informal ESA consultation. For fourteen of the amendments NOAA prepared 
an EA and FONSI. Of the approximately 842 RPCs, NOAA prepared an EA and 
FONSI for two of them.
    State CZMA management programs are comprehensive programs that, 
when they are being developed, undergo extensive review by states, 
NOAA, federal agencies and the public, including environmental review 
and an EIS under NEPA. In most instances changes to management programs 
have added further details to the previously approved management 
program and have not presented issues not considered during initial 
program approval and subsequent program changes. Under NOAA's current 
program change regulations and guidance these would be routine program 
changes (RPCs) and not substantial changes, or amendments. NOAA intends 
to eliminate the distinction between RPCs and amendments and just have 
``program changes.''
    5. Removing the ``substantial'' evaluations currently done by 
states and replacing such evaluations with a description of 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 an EA 
or EIS, or ESA consultation needed.
    Comments: BCDC, CSO, Delaware, Oregon support removing the 
``substantial'' evaluations.
    Much of the difficulty in the current procedure for compiling and 
submitting program changes stems from the requirement for a detailed 
comparison of old and new versions of state laws, state rules and 
regulations, and local comprehensive plans and ordinances. While this 
side-by-side comparison may have some utility, it turns out to have 
little or no practical value to either NOAA or the state, and has 
become a barrier to making federal consistency determinations that 
reflect current conditions (Oregon).
    For substantial changes, NOAA should also provide a Federal 
Register Notice to ensure that the public understands what changes are 
proposed. This provides agency personnel who may not be included on an 
email list or listserv with the opportunity to comment and express 
their concerns (Navy).
    NOAA Response: NOAA does not believe that Federal Register notices, 
in general, are needed, especially since NOAA will be making program 
changes and related notices publicly available on its new ``Program 
Change Web site.'' Through the Web site, federal agencies and the 
public will be able to sign up to receive program change notices from 
NOAA. However, where there is a major change in a state's management 
program that may require a separate EA or EIS, NOAA may decide to 
publish notices in the Federal Register.
    6. Establishing use of NEPA categorical exclusions.
    Comments: CSO and the state of Oregon support this goal, but note 
that it requires further explanation.
    The Navy recommended that NOAA consider, pursuant to 15 CFR 
930.33(a)(3), developing a list of universal de minimis activities 
based on NEPA categorical exclusions and on existing federal activity 
de minimis lists that have been approved by state agencies, retaining 
the ability of states and federal agencies to mutually agree on 
additional de minimis activities. States could modify the universal de 
minimis lists by adding mitigating or compliance conditions. Such 
additions should be subject to the change review procedures.

[[Page 78518]]

    NOAA Response: NOAA will determine on a case-by-case basis the 
appropriate level of NEPA analysis warranted for the action. NOAA has 
determined that, when applicable, a more appropriate process for NEPA 
compliance may be use of a categorical exclusion.
    In response to the Navy's novel approach to using the de minimis 
provision of NOAA's federal consistency regulations, NOAA does not 
believe it could impose such a list of de minimis activities. NOAA 
does, however, encourage federal agencies to propose de minimis 
activities and submit these to the coastal states for their concurrence 
under the federal consistency provision. See 15 CFR 930.33.
    7. Submitting underline/strikeout documents showing changes to 
previously approved policies.
    Comments: BCDC supported the use of underline/strikeout documents, 
but stated that NOAA should provide flexibility to account for multiple 
and large-scale changes to a policy over time, large documents, etc.
    CSO found this to be an unnecessary and overly burdensome 
requirement. CSO stated that there may be instances where such a 
technique is employed to clearly explain a program change, but this is 
more appropriately an available tool, rather than a strict requirement.
    The Navy suggested that NOAA require submission of underline/
strikeout documents showing changes to previously approved documents.
    NOAA Response: NOAA encourages states to use underline/strikeout 
documents but recognizes that such documents are not always 
practicable.
    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: All commenters support this objective. One item on this 
checklist would be formal notification of federal agencies about 
program changes. In addition, CSO and Oregon suggested that a list of 
federal agencies and points of contact for notice of program changes 
updated and maintained by NOAA would greatly improve this step in the 
process. NOAA Response: Through the federal consistency Web site and 
the developing program change Web site there are and will be federal 
agency contacts maintained by NOAA. See http://www.coast.noaa.gov/czm/consistency/. In addition, federal agencies and the public will be able 
to view program changes posted to NOAA's new ``Program Change Web 
site.''

IV. Explanation of Proposed Changes to the CZMA Program Change 
Regulations

Sec.  923.80 General

    This section describes the general requirements for program 
changes. Paragraph (a) states that the term ``program changes'' 
includes all terms used in the statute, CZMA Sec.  306(e), and 
identifies the Office for Coastal Management as the NOAA office that 
administers these regulations. Paragraph (b), derived from CZMA Sec.  
306(e), states that a coastal state may not implement a change as part 
of its management program until NOAA approves the program change. 
Similarly, a coastal state may not use a state or local government 
policy or requirement as an ``enforceable policy'' for purposes of 
federal consistency unless NOAA has approved the state or local policy 
or requirement as an ``enforceable policy.'' State or local government 
law not approved by NOAA as part of a state's management program remain 
legal requirements for state and local government purposes, but will 
not be part of a state's management program and, therefore, cannot be 
used for CZMA federal consistency purposes.
    Paragraph (d) states that the term ``enforceable policies'' has the 
same definition as that included in NOAA's CZMA federal consistency 
regulations at 15 CFR 930.11(h). NOAA has added enforceable policy 
decision criteria in proposed Sec.  923.84. These criteria have been 
included in NOAA guidance and information documents and have been part 
of long-standing NOAA implementation of program changes and enforceable 
policies. See, e.g., NOAA's Program Change Guidance (July 1996) (http://coast.noaa.gov/czm/consistency/media/guidanceappendices.pdf) and 
NOAA's Federal Consistency Overview document (http://www.coast.noaa.gov/czm/consistency/media/FC_overview_022009.pdf).
    Paragraph (e) notes that the submission of program changes may be 
required as a necessary action under NOAA's evaluation of management 
programs under CZMA Sec.  312 and 15 CFR part 923, subpart L. Failure 
to comply with a necessary action to submit a program change can result 
in a suspension of CZMA grants pursuant to CZMA Sec.  312 and the 
subpart L regulations.

Sec.  923.81 Program Change Procedures, Deadlines, Public Notice and 
Comment and Application of Federal Consistency

    This section sets forth various procedures for submitting program 
changes.
    Paragraph (a). Program changes must be submitted by the Governor of 
a coastal state, the head of the single state agency designated under 
the management program to be the lead state agency for administering 
the CZMA, or the head of an office within the designated single state 
agency if the state has authorized that person to submit program 
changes.
    NOAA would no longer require states to mail hard copies of program 
changes. Rather, all program changes would be submitted through the new 
Program Change Web site or through an alternative method, agreed to by 
the state and NOAA, if an electronic submission through the Web site is 
not possible.
    All deadlines and timeframes would start on the first full business 
day after NOAA receives a program change (Day 1). For example, if a 
submission is received on a Thursday, Day one for timeline purposes 
would be Friday; if the day of receipt is Friday and Monday is a 
federal holiday, Day 1 would be Tuesday. All days, starting with Day 1, 
are included in the calculation of total time for a deadline, including 
weekends and federal holidays. States may request that the official 
start date occur at a later time; this is an administrative convenience 
NOAA has allowed states to use in the past to account for various state 
administrative purposes.
    Paragraph (b). NOAA shall confirm receipt of all program changes 
and future deadlines. During NOAA's review of a program change, NOAA 
may request additional information that it needs to make its decision.
    Paragraph (c). This paragraph sets forth the deadlines NOAA must 
follow in responding to state program change requests. The deadlines in 
paragraph (c) are the same as NOAA's current practice and clarify a 
discrepancy that exists in the current program change regulations and 
the CZMA. NOAA is required by the Act to respond within 30 calendar 
days of receipt of a program change request. The 30-day period starts 
on Day 1 (the first full business day after receipt of a program change 
request). If NOAA does not respond within the 30-day period, then 
NOAA's approval is presumed. NOAA may extend its review period up to 
120 days after receipt of a program change request, if NOAA so notifies 
the state during the 30-day period. NOAA may continue to extend

[[Page 78519]]

its review period up to 120 days and can extend beyond 120 days for 
NEPA compliance; NOAA would have to notify the state of the NEPA 
extension during the 120-day review period.
    Paragraph (d). This paragraph codifies the current practice of pre-
submission consultation with NOAA to identify any potential approval 
issues prior to submitting a program change submission. States are 
encouraged to submit draft program changes to NOAA for informal review 
and to consult with NOAA, to the extent practicable, prior to state 
adoption of new or revised laws, policies and other provisions that the 
state intends to submit as a program change.
    Paragraph (e). NOAA is simplifying the public notice and comment 
procedures for program changes. Given the reliance on electronic means 
of communication and the demise of hard copy notices in newspapers and 
other formats, all states would be required to post public notices on 
state management program's Web site and directly email or mail notices 
to applicable local and regional offices of relevant federal agencies, 
federal agency headquarter contacts, affected local governments and 
state agencies, and any individuals or groups requesting direct notice. 
NOAA's program change review period would not begin until such notice 
is provided. NOAA will also post the state notices on its Program 
Change Web site and directly notify via email federal agency 
headquarter contacts and any other individual or group requesting 
direct notice. The state's public notice would describe the program 
change, any new or modified enforceable policies, and indicate that any 
comments on the program change shall be submitted to NOAA. NOAA will 
post the program change and all NOAA decisions on its Web site and 
notify federal agency headquarter contacts and other individuals or 
groups requesting notification. NOAA may extend the public comment 
period.
    Paragraph (f). This paragraph states that program changes to 
enforceable policies can only be applied for CZMA federal consistency 
review purposes on or after the date NOAA approves the changes. The 
effective date for the approved changes will be the date on NOAA's 
approval letter. NOAA will post its program change decision letters on 
its Program Change Web site. This section would also codify in 
regulation NOAA's long-standing position that a state enforceable 
policy cannot apply retroactively to previously proposed federal 
actions; proposed federal actions are only subject to the management 
program enforceable policies approved at the time the federal action is 
proposed under the various subparts of 15 CFR part 930. Applying newly 
approved program changes retroactively to proposed federal actions 
would be contrary to Congressional intent that federal consistency 
apply in an expeditious and timely manner, and could impose unfair 
requirements on applicants and federal agencies.

Sec.  923.82 Program Change Submissions

    The changes described in Sec.  923.82(b) are editorial or are minor 
in scope, both procedurally and substantively. These changes are not 
controversial and pose little or no impact on federal agencies or the 
public. Therefore, NOAA's review of changes under Sec.  923.82(b) would 
be expedited.
    Paragraphs (b)(1) through (4) describe program changes that are 
either editorial in nature or are minor in scope, both procedurally and 
substantively. Paragraph (b)(1) addresses editorial or non-substantive 
changes to state laws, regulations, enforceable policies, local 
government coastal programs or plans that contain enforceable policies, 
and other authorities. Paragraph (b)(2) covers changes to special area 
management plans that do not change a state's coastal zone boundary, 
enforceable policies or geographic location descriptions, and are not 
otherwise used by the state for federal consistency review. Paragraph 
(b)(3) covers most organizational changes where the primary structure 
and responsibilities of the management remain intact. NOAA will closely 
monitor organizational changes to ensure that major overhauls of a 
state's management program structure would not weaken a coastal 
program.
    Paragraph (b)(4). Most program changes, even those that result in 
some substantive change to a management program, have historically been 
routine and non-controversial, and have not posed any approval issues 
or resulted in any comments from federal agencies or the public. NOAA's 
review of these types of program changes should be expedited so long as 
these minor substantive changes would only apply to revised enforceable 
policies, not wholly new enforceable policies, and the changes are 
consistent with the scope and application of the previously approved 
enforceable policy.
    The types of program changes under Sec.  923.82(c) are self-
explanatory and include: any changes that are not covered under Sec.  
923.82(b) and would be used for federal consistency purposes (new or 
revised enforceable policies, changes to state lists of federal actions 
subject to federal consistency review, geographic location descriptions 
outside the coastal zone, necessary data and information); new or 
revised coastal uses; changes in the coastal zone boundary; program 
approval authorities; and special area management plans.
    Paragraph (c)(4), recognizes that for some states with local 
coastal programs or plans, the state can respond to federal consistency 
reviews without having to refer to the local programs or plans. In such 
cases, while the local programs and plans are important implementing 
mechanisms for coastal management in the state, states do not need to 
submit updates to the local programs or plans if they do not contain 
enforceable policies for federal consistency purposes. This would 
remove the substantial administrative burden for states and NOAA to 
submit and review local coastal programs.
    Paragraph (d) addresses changes to state Clean Air Act (CAA) and 
Clean Water Act (CWA) Pollution Control Requirements. CZMA Sec.  307(f) 
states that CAA and CWA requirements established by the Federal 
Government or by any state or local government pursuant to the CWA and 
CAA shall be incorporated in state management programs and shall be the 
water pollution control and air pollution control requirements 
applicable to such management program. NOAA's long-standing 
interpretation of 307(f) has been that these CWA and CAA pollution 
control requirements are automatically enforceable policies of the 
state management programs and, therefore, states are not required to 
submit as program changes any changes to state CAA and CWA provisions.

Sec.  923.83 Program Change Materials

    Section 923.83 describes all the program change information a state 
would submit to NOAA. These requirements are self-explanatory. NOAA 
intends to transform each of these paragraphs into a form that would, 
to the greatest extent practicable, use check-boxes or ``radio-
buttons,'' and require minimal text input. While the same form would be 
used for all program changes, there would be less information needed 
for those changes that fall under Sec.  923.82(b).
    Paragraph (a)(2)(vi) codifies NOAA interpretation and long-standing 
practice of the term ``enforceable mechanism.'' An enforceable 
mechanism is the state legal authority that makes a state policy 
enforceable under state law. In order to be an ``enforceable policy,'' 
CZMA Sec.  304(6a) requires that the policies be legally binding under 
state law. NOAA has interpreted this to mean that the

[[Page 78520]]

enforceable policy must be incorporated into the state's NOAA-approved 
management program, but the underlying enforceable mechanism does not 
necessarily have to be incorporated into a state's management program 
or submitted for NOAA approval. Some enforceable mechanisms are 
integral parts of the management program or are needed for NOAA 
approval of a state's management program and changes to these 
enforceable mechanisms would be submitted to NOAA as program changes 
(e.g., core management program statutes, regulatory permit programs 
that implement a part of a management program). States need to identify 
the enforceable mechanism for each enforceable policy. This is needed 
not only so NOAA can concur that a state policy is legally binding 
under state law, but an enforceable mechanism may be changed in such a 
way that makes an enforceable policy no longer legally binding under 
state law. In such cases, that policy, while previously approved by 
NOAA as part of the state's management program, would no longer be an 
enforceable policy that could be used for federal consistency purposes.
    States are encouraged to show the changes, additions and deletions 
to enforceable policies using an underline/strikeout format or other 
similar format. If a state uses an underline/strikeout format, the 
state should only show the changes from the version of the policy last 
approved by NOAA and the most current version that is being submitted 
to NOAA; a state does not need to show any changes to the policy that 
might have been made in between NOAA's last approval and the current 
version.
    States are also encouraged to post comprehensive lists of the 
enforceable policies to the state's coastal management program Web 
site.

Sec.  923.84 Program Change Decision Criteria

    The decision criteria in this section are taken from the current 
Program Change Guidance (1996) and NOAA's Federal Consistency Overview 
document. NOAA has applied these criteria since at least 1996 when 
reviewing program change requests. These criteria are generally self-
explanatory and states would use a program change form to be developed 
by NOAA to assess whether these criteria are satisfied. For enforceable 
policies under paragraph (b) of this section, a policy must contain a 
standard; if a provision of a state law or regulation merely directs a 
state agency to develop standards, then that provision would not be an 
enforceable policy as it does not contain a standard. An enforceable 
policy should contain terms such as ``shall,'' ``must,'' or other terms 
interpreted under state law that mandate some action or compliance. 
Paragraph (b) also clarifies that it does not always make sense to 
parse out the enforceable policies within a statute or regulation that 
also contain parts that are necessary details for applying enforceable 
policies even though not enforceable themselves. This includes 
definitions, procedures, and information requirements that are 
essential elements of interpreting the substantive standards and 
determining consistency with the standards. Therefore, in some cases 
NOAA may find that a statute or regulation in its entirety is 
enforceable.
    Paragraph (b) also clarifies that enforceable policies must: Apply 
to areas and entities within state jurisdiction; not assert regulatory 
authority over federal agencies, lands or waters unless federal law 
authorizes such jurisdiction; not be preempted on their face by federal 
law; not attempt to incorporate by reference other state or local 
mandatory requirements not submitted to, reviewed, and approved by 
NOAA; not discriminate against a particular activity or entity; and not 
adversely affect the national interest in the CZMA objectives.
    For example, if a state is concerned about having policies that 
would apply to offshore oil and gas activities, the state would need to 
develop policies that would apply to any activity or industry that 
would have similar coastal effects; the state could not single out 
offshore oil and gas unless there are specific activities or coastal 
effects that only apply to the offshore oil and gas industry. Likewise, 
if a state wants to promote marine renewable energy in its enforceable 
policies, it may do so, but could not at the same time prohibit other 
forms of energy development without sufficient justification. Blanket 
prohibitions are generally not approved by NOAA as part of a state's 
management program unless a state provides sufficient justification. 
NOAA will not approve proposed enforceable policies which can be 
applied in an arbitrary or in a discriminatory manner. An enforceable 
policy cannot prohibit an activity due to the nature of its effects, 
e.g., potential marine mammal ship strikes, if other activities pose 
the same kind and degree of risk and are not prohibited. There must be 
a sufficient justification for discriminatory policies. NOAA would 
evaluate such proposed program changes to determine if such 
discrimination is warranted and also whether a prohibition of an 
activity would violate the national interest objectives of the CZMA.
    Paragraph (c) codifies long-standing NOAA practice and guidance 
when previously NOAA-approved enforceable policies are no longer 
enforceable for purposes of federal consistency review. If an 
underlying enforceable mechanism, e.g., a state law, is repealed or 
changed in such a way so that an enforceable policy is no longer 
supported by the law, or a court determines a policy is not 
enforceable, then the policy is no longer legally binding under state 
law and could no longer be used for federal consistency purposes. The 
same applies if a policy previously approved by NOAA is subsequently 
preempted by federal law or impacted by a court decision.
    Paragraph (d) describes NOAA criteria for states to amend their 
lists of federal actions subject to federal consistency review and to 
propose geographic location descriptions (GLDs) to review federal 
actions outside the coastal zone, either landward or seaward. This 
paragraph focuses on the need for a state to make an adequate 
justification based on reasonably foreseeable effects to the state's 
coastal uses or resources. For NOAA to find that an activity in a 
proposed GLD outside the coastal zone may have coastal effects, a state 
must show that the impact from an activity will have a reasonably 
foreseeable effect to coastal uses or resources of the state. A state's 
burden to demonstrate coastal effects means that a mere assertion that 
an activity in federal waters will have an impact is insufficient to 
make a finding of reasonably foreseeable coastal effects. Moreover, a 
state's effects analysis must provide more than general assertions of 
impacts or that resources or uses are ``important,'' or should be 
reviewed because of the proximity of an activity to state coastal uses 
or resources. A persuasive coastal effects analysis should identify:
    1. The affected uses (e.g., commercial and recreational fishing, 
boating, tourism, shipping, energy facilities) and resources (e.g., 
fish, marine mammals, reptiles, birds, landmarks).
    2. Where and in what densities the uses and resources are found.
    3. How the state has a specific interest in the resource or use. Be 
specific in showing their connection to the coastal zone of the state 
(e.g., economic values, harvest amounts, vulnerabilities, seasonal 
information relevant to the proposed activity).
    4. Where the proposed activity overlaps with these resources, uses 
and values.
    5. Impacts to the resources or uses from the proposed activity.
    6. The causal connection to the proposed activity, including how 
any

[[Page 78521]]

impacts from the activity results in reasonably foreseeable effects on 
the state's coastal uses or resources.
    7. Why any proposed mitigation may be inadequate.
    8. Empirical data and information that supports the effects 
analysis and can be shown to be reliable; visualizes the affected area, 
resources and uses with maps; and shows values, trends and 
vulnerabilities.

Sec.  923.85 Procedural Requirements of Other Federal Law

    This section describes compliance and consultations under other 
federal law such as ESA, NHPA, MSFCMA or MMPA. This has to do with the 
nature of NOAA's action in approving a program change, in that NOAA can 
approve or deny a program change, but cannot affect the state's ability 
to enact a law and implement it at the state level. NOAA's approval of 
any state or local provisions as enforceable policies of the state's 
management program means those provisions can be used during a state's 
CZMA federal consistency review.
    In addition, it is important to understand the nature of NOAA's 
discretion for the review and approval of program changes when 
informally or formally consulting on Endangered Species Act, other 
federal consultations and addressing tribal concerns.
    The CZMA is not a delegated program; there are not federal CZMA 
standards, there is not a federal coastal zone, and NOAA does not 
implement management programs. The CZMA is a voluntary program and if a 
state chooses to participate it develops a management program unique to 
each state, based on state laws and policies pursuant to general 
program requirements in the CZMA and NOAA's regulations.
    Once NOAA approves a state's management program, NOAA cannot 
require a state to change its program. NOAA can, through periodic 
evaluations of a state's management program under CZMA Sec.  312, 
establish necessary actions if NOAA finds a state is not adhering to 
its NOAA-approved program, but NOAA can only recommend that a state 
change its program to create a different state standard or to address 
emerging issues. If NOAA finds that a state is not adhering to its 
management program and the state does not remedy the issue, NOAA's only 
recourse is to impose financial sanctions by withholding a part of a 
state's annual CZMA implementation grant until the state remedies the 
issue or ultimately NOAA could decertify a state's management program.
    If a state submits a program change, NOAA can approve or disapprove 
that program change. When NOAA reviews a program change, NOAA has a 
limited ability to require a state to make changes to state policies. 
If NOAA disapproves, this does not require a state to change state law. 
Therefore, there is no effect from NOAA's denial on the implementation 
of state law at the state (or local government) level. NOAA's denial 
means the disapproved state policy is not part of the state's NOAA 
approved management program and cannot be used for CZMA federal 
consistency purposes. NOAA cannot use a program change to require 
changes to other parts of a state's management program.

VI. Miscellaneous Rulemaking Requirements

Executive Order 12372: Intergovernmental Review

    This program is subject to Executive Order 12372.

Executive Order 13132: Federalism Assessment

    NOAA has concluded that this regulatory action is consistent with 
federalism principles, criteria, and requirements stated in Executive 
Order 13132. The proposed changes in the program change regulations are 
intended to facilitate federal agency coordination with coastal states, 
and ensure compliance with CZMA requirements. The CZMA and these 
revised implementing regulations promote the principles of federalism 
articulated in Executive Order 13132 by granting the states a qualified 
right to amend their federally-approved management programs to address 
activities that affect the land and water uses or natural resources of 
state coastal zones and to apply these amended management programs to 
federal actions through the CZMA federal consistency provision. CZMA 
Sec.  307 and NOAA's implementing regulations (15 CFR part 930) balance 
responsibilities between federal agencies and state agencies whenever 
federal agencies propose activities, or applicants for a required 
federal license or permit propose to undertake activities, affecting 
state coastal uses or resources. Through the CZMA, federal agencies are 
required to carry out their activities in a manner that is consistent 
to the maximum extent practicable with federally-approved state 
management programs while licensees and permittees are to be fully 
consistent with the state programs. The CZMA and these implementing 
regulations, rather than preempting a state, provide a mechanism for it 
to object to federal actions that are not consistent with the state's 
management program. A state objection prevents the issuance of the 
federal permit or license, unless the Secretary of Commerce overrides 
the objection. Because the CZMA and these regulations promote the 
principles of federalism and enhance state authorities, no federalism 
assessment need be prepared.

Executive Order 12866: Regulatory Planning and Review

    This regulatory action is not significant for purposes of Executive 
Order 12866.

Regulatory Flexibility Act

    The Chief Counsel for Regulation for the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that the proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The term ``small entity'' includes small businesses, small 
organizations, and small governmental jurisdictions. The Regulatory 
Flexibility Act (RFA) defines a small jurisdiction as any government of 
a district with a population of less than 50,000.
    The existing regulations do not have a significant economic impact 
on a substantial number of small entities and, thus, these clarifying 
changes will not result in any additional economic impact on affected 
entities. The proposed rule revises provisions of the program change 
regulations to provide for a more effective and efficient process for 
states to amend their management programs, NOAA to review the proposed 
changes, and for federal agencies and the public to comment. The 
program change regulations, and the proposed rule, primarily affect 
states; the proposed changes do not impose any requirements on small 
entities.
    The existing regulations do not, and the proposed rule will not, if 
adopted, have a significant economic impact on a substantial number of 
small entities. Accordingly, an Initial Regulatory Flexibility Analysis 
was not prepared.

Paperwork Reduction Act

    This proposed rule contains no additional collection-of-information 
requirement subject to review and approval by the Office of Management 
and Budget under the Paperwork Reduction Act; rather it changes the 
manner in which states provide information to NOAA and, in some

[[Page 78522]]

cases, eliminates or reduces information currently required.

National Environmental Policy Act

    NOAA has concluded that this proposed regulatory action does not 
have the potential to pose significant impacts on the quality of the 
human environment. Further, NOAA has concluded that this proposed rule, 
if adopted, would not result in any changes to the human environment. 
Therefore, NOAA has concluded that, pursuant to sections 5.05 and 
6.03c.3(i) of NAO 216-6, this proposed rulemaking does not have a 
significant impact on the human environment and is categorically 
excluded from the need to prepare an environmental assessment or 
environmental impact statement pursuant to the requirements of NEPA in 
accordance with NAO 216-6. See also the description above on NEPA 
compliance for program changes.

    Dated: October 24, 2016.
W. Russell Callender,
Assistant Administrator for Ocean Services, National Oceanic and 
Atmospheric Administration.

List of Subjects in 15 CFR Part 923

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

    For the reasons stated in the preamble, NOAA proposes to revise 15 
CFR part 923 as follows:

PART 923--COASTAL ZONE MANAGEMENT PROGRAM REGULATIONS

0
1. The authority citation continues to read as follows:

    Authority: 16 U.S.C. 1451 et seq.; 31 U.S.C. 6506; 42 U.S.C. 
3334; Sections 923.92 and 923.94 are also issued under E.O. 12372, 
July 14, 1982, 3 CFR 1982 Comp. p. 197, as amended by E.O. 12416, 
April 8, 1983, 3 CFR 1983 Comp. p. 186.

0
2. Revise subpart H to read as follows:

Subpart H--Changes to Approved Management Programs

Sec.
923.80 General.
923.81 Program change procedures, deadlines, public notice and 
comment and application of federal consistency.
923.82 Program change submissions.
923.83 Program change materials.
923.84 Program change decision criteria.
923.85 Procedural requirements of other Federal law.


Sec.  923.80  General.

    (a) This subpart establishes the criteria and procedures by which 
any proposed change to approved management programs shall be made. The 
term ``program change'' includes all terms used in section 306(e) of 
the Act, including amendment, modification or other program change. 
Draft program changes submitted to NOAA for informal review and comment 
are not subject to these requirements. Unless otherwise specified, the 
term ``NOAA'' refers to the Office for Coastal Management, within 
NOAA's National Ocean Service. (The Office for Coastal Management was 
formerly known as the Office of Ocean and Coastal Resource Management 
and the Coastal Services Center.)
    (b) Pursuant to section 306(e) of the Act, a coastal state may not 
implement any change to a management program as part of its management 
program unless the state submits, and NOAA approves, the change for 
incorporation into the state's federally-approved management program. A 
state shall not use a state or local government policy or requirement 
as an ``enforceable policy'' under 16 U. S.C. 1453(6a) and Sec.  
930.11(h) of this subchapter for purposes of federal consistency under 
16 U.S.C. 1456 and part 930 of this subchapter, unless NOAA has 
approved the incorporation of, and subsequent changes to, the state or 
local policy into the state's management program under this subpart. 
State or local government law not approved by NOAA as part of a state's 
management program remain legal requirements for state and local 
government purposes, but not for CZMA federal consistency purposes.
    (c) For purposes of this subpart, program changes include changes 
to enforceable policies as well as changes to one or more of the 
following management program areas under part 923: Uses Subject to 
Management (Subpart B); Special Management Areas (Subpart C); 
Boundaries (Subpart D); Authorities and Organization (Subpart E); and 
Coordination, Public Involvement and National Interest (Subpart F).
    (d) The phrase ``enforceable policies'' used in this subpart is 
described in 16 U.S.C. 1453(6a) and Sec.  930.11(h) of this subchapter. 
Enforceable policies are the only policies states can use to determine 
whether a federal action is consistent with its management program 
under section 307, the Federal Consistency provision, of the Act (16 
U.S.C. 1456 and part 930 of this subchapter).
    (e) Suspension of grants. Pursuant to section 306(e)(1) of the Act 
and Sec.  923.135 of this subchapter, NOAA may suspend all or part of 
any grant or cooperative agreement made under section 306 of the Act if 
the state has failed to submit a program change identified as a 
necessary action under section 312 of the Act and part 923, subpart L 
(Review of Performance) and pursuant to the requirements for NOAA to 
notify the Governor of a state under the enforcement provisions of 
Sec.  923.135 of this subchapter.


Sec.  923.81   Program change procedures, deadlines, public notice and 
comment and application of federal consistency.

    (a) Pursuant to section 306(d)(6) of the Act and Sec.  930.11(o) of 
this subchapter, all program changes shall be submitted to NOAA by: The 
Governor of a coastal state with an approved management program; the 
head of the single state agency designated under the management program 
to be the lead state agency for administering the CZMA; or the head of 
an office within the designated single state agency if the state has 
authorized that person to submit program changes. Program changes may 
be submitted to NOAA on a cyclical basis (e.g., quarterly, twice a 
year, annually) or as the changes occur.
    (1) One (1) copy shall be submitted electronically using the 
Program Change Form on NOAA's Program Change Web site and addressed to: 
Chief, Stewardship Division, Office for Coastal Management, NOAA, 1305 
East-West Hwy., 10th Floor, Silver Spring, MD 20910.
    (i) If a state is not able to electronically send all or part of a 
program change to NOAA through NOAA's Program Change Web site, the 
state and NOAA shall agree to an alternative method (e.g., email, 
electronic CD, or a state Web site). In such instances, NOAA will, to 
the extent practicable, post the program change to NOAA's Program 
Change Web site.
    (2) All deadlines and timeframes under this subpart shall start on 
the first full business day after the day NOAA receives a program 
change (Day 1). For example, if a submission is received on a Thursday, 
day one of NOAA's review period would be Friday; if the day of receipt 
is Friday and Monday is a federal holiday, Day 1 would be Tuesday. All 
days, starting with Day 1, are included in the calculation of total 
time for a deadline, including weekends and federal holidays. A state 
may request that NOAA's review period begin on a specified date 
following receipt by NOAA.
    (b) When NOAA receives a program change, NOAA shall notify the 
state (via email or letter) of the date the program change was received 
and NOAA's expected decision deadline. NOAA will also notify the state 
if NOAA determines the submission is incomplete. If NOAA

[[Page 78523]]

determines a submission is incomplete, NOAA shall inform the state that 
the program change review timeline shall not start until the missing 
information is submitted. During NOAA's review of a program change 
request, NOAA may request additional information that NOAA needs to 
make its decision.
    (c) NOAA shall respond to the state (via email or letter) within 30 
calendar days after the date NOAA receives a program change. The 30 
days starts on Day 1. If NOAA does not respond within the 30-day 
period, then NOAA's approval is presumed. NOAA may extend its review 
period up to 120 days after receipt of a program change request, if 
NOAA so notifies the state during the 30-day period. NOAA can extend 
beyond 120 days only as necessary to meet the requirements of the 
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.). NOAA 
shall inform the state via email or letter whether NOAA approves, 
approves in part, approves with qualifications or denies the 
incorporation of the program change into the state's management 
program.
    (d) Pre-submission consultation. States shall, to the extent 
practicable, consult with NOAA prior to state adoption of new or 
revised state laws, policies, regulations, and other changes the state 
intends to submit to NOAA as a program change. States are encouraged to 
submit draft program changes to NOAA for informal review and comment 
prior to submitting a program change. If consulted, NOAA shall review 
draft submissions to identify issues that would need to be addressed in 
the formal submission.
    (e) Public Notice and Comment.
    (1) A state shall post a public notice of its program change on the 
state's management program Web site in a conspicuous manner, and email 
or mail the public notice to local and regional offices of relevant 
federal agencies, federal agency CZMA headquarter contacts identified 
on NOAA's federal consistency Web site, affected local governments and 
state agencies, and to individuals requesting direct notice. The state 
shall post its public notice prior to, or on the same date as, the date 
the state submits the electronic program change to NOAA. NOAA's program 
change review period shall not start until NOAA informs the state that 
it has received the program change. To meet the requirement for direct 
public notice (via email or mail), states are encouraged to maintain a 
coastal management listserv or mailing list. In addition to posting the 
public notice on the state's Web site and notifying the parties 
described above, states may, but are not required to, publish the 
notice in any state bulletin or newspaper.
    (2) A state's public notice shall:
    (i) Describe the nature of the program change;
    (ii) If applicable, identify any new, modified or deleted 
enforceable policies of the management program;
    (iii) Indicate that any comments on the content of the program 
change shall be submitted to NOAA through NOAA's Program Change Web 
site within 21 calendar days of the date NOAA's review period starts; 
and
    (3) NOAA shall post all program changes on its Program Change Web 
site where any interested party may review or download materials. NOAA 
shall also post on its Program Change Web site deadlines, extensions 
and any comments received. For each program change posted on NOAA's Web 
site, NOAA shall notify the federal agency CZMA headquarter contacts 
(identified on NOAA's federal consistency Web site) via email. In 
addition, any party may request through the Program Change Web site 
that NOAA notify them via email when program changes are submitted by 
one or more state(s). NOAA's email shall also state that any party may 
submit comments to NOAA on a program change request within 21 calendar 
days from the date NOAA's review period starts.
    (4) NOAA may, at its discretion, extend the public comment period 
or hold a public hearing. NOAA shall only consider holding a public 
hearing for a program change that would substantially change a 
management program and/or be controversial.
    (5) NOAA shall post its program change decisions on its CZMA 
Program Change Web site and shall notify, by email, federal agency CZMA 
headquarter contacts and individuals requesting such notice. A state 
shall post NOAA's decision regarding a state's program change on the 
state agency's Web site.
    (f) Application of approved program changes for federal consistency 
purposes under section 307 of the Act (16 U.S.C. 1456) and part 930 of 
this subchapter. Changes to a state's management program and 
enforceable policies shall be applicable for federal consistency 
purposes on the date NOAA approves the changes. The effective date for 
the approved changes will be the date on NOAA's approval letter. NOAA 
will post its program change decision letters on its Program Change Web 
site. Approved program changes shall not apply retroactively to state 
federal consistency reviews under part 930 of this subchapter, subparts 
C, D, E or F, for proposed federal actions where a federal agency 
(subpart C), applicant (subpart D), person (subpart E), or applicant 
agency (subpart F) had submitted to the management program a 
consistency determination or consistency certification prior to NOAA's 
approval, except as allowed by part 930 of this subchapter, unless the 
proposed federal action was finalized or authorized and there is a 
substantial change, amendment or renewal proposed for the federal 
action on or after the date of NOAA's approval of a program change, 
pursuant to the applicable subpart of part 930.


Sec.  923.82   Program change submissions.

    (a) As required by CZMA Sec.  306(e)(3)(A), coastal states may not 
implement a change as part of its approved management program unless 
the change is approved by NOAA. In accordance with Sec.  923.81 and 
Sec.  923.83, states shall submit program changes to NOAA for approval 
using the Program Change Form on NOAA's Program Change Web site.
    (b) The following types of program changes shall be approved by 
NOAA as long as they satisfy the decision criteria in Sec.  923.84 and 
do not raise issues under any federal laws, as described in Sec.  
923.85:
    (1) Editorial or non-substantive changes (e.g., citation changes, 
minor technical changes, or changes to state agency name) to state 
laws, regulations, enforceable policies, local government coastal 
management programs or plans that contain enforceable policies, and 
other authorities;
    (2) Changes to special area management plans that do not change a 
state's coastal zone boundary, enforceable policies or geographic 
location descriptions, and are not otherwise used by the state for 
federal consistency review;
    (3) Changes to the organization of a state's management program if 
the management program's structure and responsibilities will remain 
intact; and
    (4) Changes to enforceable policies previously approved by NOAA 
that make minor substantive revisions consistent with the scope and 
application of the previously approved enforceable policy. If the 
proposed changes are not consistent with the scope and application of 
the previously approved enforceable policy, then NOAA shall more 
closely review the changes to ensure they satisfy the decision 
criteria.
    (c) Any program change that is not described in paragraph (b) of 
this section shall be reviewed by NOAA to ensure the state's management 
program will remain approvable if the proposed

[[Page 78524]]

program change is approved. These changes include:
    (1) Changes to the five program approval areas, including: Uses 
Subject to Management (subpart B of this part); Special Management 
Areas (subpart C of this part); Boundaries (subpart D of this part); 
Authorities and Organization (subpart E of this part); and 
Coordination, Public Involvement and National Interest (subpart F of 
this part);
    (2) Changes to enforceable policies, including modifications, 
additions and deletions;
    (3) Changes to provisions that are not enforceable policies, but 
which a state may use to evaluate the scope or applicability of an 
enforceable policy (e.g., definitions, advisory statements);
    (4) Changes to local government coastal management programs or 
plans if those local programs or plans contain enforceable policies 
that the state uses for federal consistency review. States are not 
required to submit program changes for local government coastal 
management programs or plans that do not contain enforceable policies 
for federal consistency review; and
    (5) Changes or additions to the state's federal consistency list or 
geographic location descriptions (part 930 of this subchapter);
    (6) Changes or additions to Necessary Data and Information (930.58 
of this subchapter).
    (d) Changes to state Clean Air Act (CAA) and Clean Water Act (CWA) 
Pollution Control Requirements. Pursuant to section 307(f) of the Act, 
requirements established by the CWA (33 U.S.C. 1251-1387) and the CAA 
(42 U.S.C. 7401-7671), or established by the Federal Government or by 
any state or local government pursuant to the CWA and CAA shall be 
incorporated in state management programs and shall be the water 
pollution control and air pollution control requirements applicable to 
such management program. Therefore, states are not required to submit 
as program changes any changes to state CAA and CWA provisions.


Sec.  923.83   Program change materials.

    (a) All program changes submitted to NOAA shall be submitted in 
accordance with Sec.  923.81. Using the Program Change Form, a state 
shall provide a brief description of the proposed program change(s) and 
a current version of the document(s) containing the program change 
(e.g., text of the revised statute, regulation, policy, map, etc.). 
States shall use the Program Change Form to provide information for:
    (1) Changes to the five program approval areas. States shall 
indicate if the proposed program change(s) affect any of the five 
management program approval areas under this part:
    (i) Uses Subject to Management (subpart B);
    (ii) Special Management Areas (subpart C);
    (iii) Boundaries (subpart D);
    (iv) Authorities and Organization (subpart E); or
    (v) Coordination, Public Involvement and National Interest (subpart 
F).
    The state shall refer to its program approval findings and any 
other relevant documents and make a statement that, to the best of the 
state's knowledge, its management program would continue to satisfy 
these five areas if the proposed changes are approved by NOAA.
    (2) Changes or additions to enforceable policies. States shall 
identify new, revised or deleted enforceable policies and describe the:
    (i) Title of the policy or statutory section, if applicable;
    (ii) If previously approved by NOAA, whether the proposed policy 
revisions are consistent with the scope and application of the 
previously approved version;
    (iii) State legal citation for the policy (do not use public law 
numbers);
    (iv) Date the policy was last updated by the state;
    (v) Date the policy was last approved by NOAA; and
    (vi) State enforceable mechanism that makes the policy enforceable 
under state law. The phrase ``enforceable mechanism'' means a state 
authority that makes an enforceable policy legally binding under state 
law, as described in this subpart and Sec.  930.11(h) of this 
subchapter. Examples of an enforceable mechanism include state 
statutes, regulations, permitting programs, local government ordinances 
or court decisions. If an enforceable mechanism is changed so that an 
enforceable policy is no longer legally binding under state law, then 
the enforceable policy shall be submitted as a program change with a 
new underlying state enforceable mechanism; otherwise the policy is no 
longer enforceable for purposes of state CZMA federal consistency 
reviews under part 930 of this subchapter.
    (3) Changes or additions to the state's federal consistency list or 
geographic location descriptions.
    (i) For each new or revised listed federal action, states shall 
describe the:
    (A) type of federal action;
    (B) specific federal statutory authority;
    (C) responsible federal agency; and
    (D) reasonably foreseeable effects to the uses and resources of the 
state's coastal zone (Sec.  923.84(d) of this part).
    (ii) For each new or revised geographic location description, 
states shall describe the:
    (A) geographic location description, using specific geographic 
boundaries;
    (B) listed federal actions to be included within a geographic 
location description; and
    (C) reasonably foreseeable effects to the uses and resources of the 
state's coastal zone.
    (iii) Exception for state and federal agreements made as part of a 
regional ocean plan prepared by a Regional Planning Body under the 
National Ocean Policy Executive Order 13547 (75 FR 43022 (July 22, 
2010)). Geographic location descriptions and changes to state lists of 
federal license or permit activities that describe general concurrences 
for minor federal license or permit activities resulting from state and 
federal agency agreements as part of a Regional Planning Body's 
regional ocean plan, and agreed to by NOAA through the Regional 
Planning Body process, shall be part of a state's management program 
once the Regional Planning Body's regional ocean plan is approved by 
the Regional Planning Body and certified by the National Ocean Council. 
No further submission to NOAA shall be required; the requirements of 
Sec.  930.53 of this subchapter and this part for notification to 
federal agencies and the public shall be met by the Regional Planning 
Body process.
    (4) Changes to Necessary Data and Information. States shall 
describe any changes or additions to Necessary Data and Information 
approved by NOAA in accordance with Sec.  930.58 of this subchapter and 
explain why such information is necessary in order for the state to 
commence its federal consistency review period.
    (5) NOAA's decision criteria. The state shall indicate that the 
program change meets each of NOAA's decision criteria in Sec.  923.84.
    (6) Impacts relating to other federal laws. The state shall 
describe whether and how the program change will impact the following:
    (i) Resources or interests of any federally-recognized American 
Indian or Alaska Native tribal government.
    (ii) Threatened or endangered species listed under the federal 
Endangered Species Act (ESA);
    (iii) Historic properties designated under the National Historic 
Preservation Act (NHPA);
    (iv) Essential fish habitat designated under the Magnuson Stevens 
Fishery Conservation and Management Act (MSFCMA);

[[Page 78525]]

    (v) Marine mammals managed under the Marine Mammal Protection Act 
(MMPA); and
    (vi) Other resources managed under other federal statutes.
    (7) The state shall identify the state's Web site where the public 
notices for the notification and submission requests are, or will be, 
located and where, if applicable, state documents related to the 
request may be viewed.
    (8) The state shall submit to NOAA any substantive correspondence 
between the state and federal agencies (not including NOAA's Office for 
Coastal Management) concerning the development of the changes that are 
the subject of the program change request.
    (9) The state shall indicate if the program change was developed 
pursuant to section 309 of the Act (16 U.S.C. 1456b--Coastal zone 
enhancement grants) and, if so, shall state the strategy title and 
years the strategy was carried out.
    (10) The state shall indicate if the program change was developed 
as a necessary action pursuant to section 312 of the Act (16 U.S.C. 
1458--Review of performance) and, if so, shall briefly describe the 
necessary action.


Sec.  923.84   Program change decision criteria.

    (a) NOAA shall review all program changes on a case-by-case basis. 
NOAA shall determine whether a management program, if changed, would 
continue to satisfy the applicable program approval criteria of CZMA 
Sec.  306(d) and subparts B through F of this part and the requirements 
of this subpart (subpart H).
    (b) Enforceable policies. In order for NOAA to approve the 
incorporation of a new or revised enforceable policy into a state's 
management program, the policy shall:
    (1) Be legally binding under state law;
    (2) Contain standards of sufficient specificity to guide public and 
private uses. A policy is not enforceable if it merely directs a state 
agency to develop regulations or standards.
    (i) Definitions, procedures and information requirements are 
essential elements of determining compliance with regulatory and permit 
standards. As such, a state law or regulation that contains numerous 
standards, definitions, procedures, and information requirements may be 
considered enforceable in its entirety after consultation with NOAA. If 
NOAA determines that a law or regulation may be considered enforceable 
in its entirety, a state does not have to identify non-enforceable 
parts of the law or regulation.
    (3) Apply only to areas and/or entities under state jurisdiction;
    (4) Not refer to or otherwise purport to apply to federal agencies, 
federal lands or federal waters. The Act does not authorize states to 
establish regulatory standards for federal agencies or for federal 
lands or waters. A state policy that would regulate or otherwise 
establish standards for federal agencies or federal lands or waters 
shall not meet the Act's definition of ``enforceable policy'' (i.e., 
legally binding under state law) under 16 U.S.C. 1453(6a). States apply 
their NOAA-approved enforceable policies to federal actions, regardless 
of location, through CZMA federal consistency reviews under 16 U.S.C. 
1456 and part 930 of this subchapter;
    (5) Not, on its face, be preempted by federal law. If a state 
policy seeks to regulate an activity where state regulation is 
preempted by federal law, the policy is not legally binding under state 
law and shall not be an enforceable policy under 16 U.S.C. 1453(6a). 
Policies previously approved by NOAA as enforceable policies shall no 
longer be enforceable if federal law enacted after NOAA's approval 
subsequently preempts the state policy;
    (6) Not incorporate by reference other state or local requirements 
that are not identified, described and evaluated as part of the program 
change request. Any state or local requirements incorporated by 
reference shall not be applicable for federal consistency review 
purposes unless separately approved by NOAA as enforceable policies;
    (7) Not discriminate against a particular type of activity or 
entity. Enforceable policies shall be applied to all relevant public 
and private entities that would have similar coastal effects. 
Enforceable policies may be specific to a particular type of activity 
or entity if NOAA agrees that a state has demonstrated that the 
activity or entity present unique circumstances; or
    (8) Not adversely affect the national interest in the CZMA 
objectives described in 16 U.S.C. 1451 and 1452.
    (c) Effect of Prior Program Change Approvals. If enforceable 
policies previously approved by NOAA become obsolete or non-enforceable 
through application of subsequently enacted state or federal law, such 
policies will no longer be enforceable for purposes of CZMA federal 
consistency review. For example, a state law change may repeal a 
previous policy or may change the policy in a manner that changes the 
scope and application of the policy. In such cases, the previously 
approved enforceable policy is no longer applicable under state law and 
the new or revised policy is not applicable for federal consistency 
purposes until that policy has been submitted by the state as a program 
change and approved by NOAA. A previously approved enforceable policy 
may also become non-enforceable and no longer legally binding under 
state law if subsequent federal law preempts state regulation of a 
particular activity.
    (d) Changes to a management program's federal consistency list or a 
new or revised geographic location description under part 930 of this 
subchapter, subparts C, D, E, F or I. For changes to a management 
program's list of federal actions or a new or revised geographic 
location description, the state's effects analysis shall be based on 
information that would allow NOAA to find that the listed activity, 
either within the state's coastal zone or within a geographic location 
described outside the state's coastal zone, would have reasonably 
foreseeable effects on the uses or resources of the state's coastal 
zone. A state's analysis asserting impacts to uses or resources outside 
of the coastal zone shall not, by itself, demonstrate a coastal effect; 
rather, the state shall describe a causal connection of how an impact 
outside the coastal zone could result in a coastal effect. A state's 
effects analysis shall not be based on unsupported conclusions, 
speculation or the mere existence of coastal uses or resources within a 
geographic location. A state's coastal effects analysis shall, to the 
extent practicable, identify:
    (1) The affected uses (e.g., commercial and recreational fishing, 
boating, tourism, shipping, energy facilities) and resources (e.g., 
fish, marine mammals, reptiles, birds, landmarks).
    (2) Where and in what densities the uses and resources are found.
    (3) How the state has a specific interest in the resource or use. 
Be specific in showing their connection to the coastal zone of the 
state (e.g., economic values, harvest amounts, vulnerabilities, 
seasonal information relevant to the proposed activity).
    (4) Where the proposed activity overlaps with these resources, uses 
and values.
    (5) Impacts to the resources or uses from the proposed activity.
    (6) The causal connection to the proposed activity, including how 
the impacts from the activity results in reasonably foreseeable effects 
on the state's coastal uses or resources.
    (7) Why any proposed mitigation may be inadequate.
    (8) Empirical data and information that supports the effects 
analysis and: can be shown to be reliable; visualizes the affected 
area, resources and uses with maps; and shows values, trends and 
vulnerabilities.

[[Page 78526]]

Sec.  923.85   Procedural requirements of other Federal law.

    (a) NOAA shall determine on a case-by-case basis whether each 
program change requires NOAA to take additional actions under any other 
federal requirement described below.
    (1) If a state's program change will affect the resources or 
interests of any federally-recognized American Indian or Alaska Native 
tribal government (tribe), NOAA shall contact the affected tribe(s) and 
determine if Government-to-Government consultation is desired under 
Executive Order 13175 (Nov. 6, 2000).
    (2) If, for the purposes of ESA, NHPA, MSFCMA or MMPA compliance, 
NOAA determines that a state's program change will have effects on 
listed threatened or endangered species, historic properties, essential 
fish habitat or marine mammals, then NOAA shall determine if 
consultation is needed with the applicable federal agency under the 
ESA, NHPA, MSFCMA and MMPA.
    (3) When NOAA determines whether to consult under other federal 
statutes or tribal executive orders, NOAA's ability to require changes 
to a state's proposed program change are limited by the following:
    (i) Once NOAA approves a state's management program, NOAA cannot 
require a state to change its program. NOAA can, through periodic 
evaluations of a state's management program under section 312 of the 
Act, establish necessary actions if NOAA finds a state is not adhering 
to its NOAA-approved program, but NOAA can only recommend that a state 
change its program to create a different state standard or to address 
emerging issues; and
    (ii) NOAA can approve or disapprove a program change request. When 
NOAA reviews a program change, NOAA has a limited ability to require a 
state to make changes to state policies. If NOAA disapproves a program 
change request, this does not require a state to change state law. 
Therefore, there is no effect from NOAA's denial on the implementation 
of state law at the state (or local government) level. NOAA's denial 
means the disapproved state policy is not part of the state's NOAA-
approved management program and cannot be used for CZMA federal 
consistency purposes. NOAA cannot use a program change to require 
changes to other parts of a state's management program.

[FR Doc. 2016-26680 Filed 11-7-16; 8:45 am]
 BILLING CODE 3510-08-P