Procedural Changes to the Coastal Zone Management Act Federal Consistency Process, 8628-8633 [2019-04199]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 84, Number 47 (Monday, March 11, 2019)]
[Proposed Rules]
[Pages 8628-8633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-04199]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 930

[Docket No. 180215185-8185-01]
RIN 0648-BH78


Procedural Changes to the Coastal Zone Management Act Federal 
Consistency Process

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

ACTION: Advance notice of proposed rulemaking.

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

SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is 
issuing this advance notice of proposed rulemaking (ANPR) to seek the 
public and regulated community's input on what changes could be made to 
NOAA's Coastal Zone Management Act (CZMA) federal consistency 
regulations to make the federal consistency process more efficient 
across all stages of OCS oil and gas projects from leasing to 
development, as well as renewable energy projects. NOAA is also seeking 
comments on whether NOAA could process appeals in less time and 
increase the predictability in the outcome of an appeal. NOAA further 
invites comment on the potential costs that could be incurred by small 
entities during CZMA consistency appeals if NOAA revises the federal 
consistency regulations to provide greater efficiency and 
predictability as discussed in this Notice.

DATES: Comments on this ANPR must be received by April 25, 2019.

ADDRESSES: You may submit comments on this advance notice of proposed 
rulemaking (ANPR), identified by NOAA-NOS-2018-0107 by either of the 
following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal www.regulations.gov. To 
submit

[[Page 8629]]

comments via the e-Rulemaking Portal, first click the ``Submit a 
Comment'' icon, then enter NOAA-NOS-2018-0107 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 Federal Consistency ANPR Comments.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NOAA. 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) submitted voluntarily by the sender 
will be publicly accessible. Do not submit confidential business 
information, or otherwise sensitive or protected information. NOAA will 
accept anonymous comments (enter ``N/A'' in the required fields if you 
wish to remain anonymous).

FOR FURTHER INFORMATION CONTACT: Mr. David Kaiser, Senior Policy 
Analyst, Office for Coastal Management, NOAA, at 603-862-2719, 
david.kaiser@noaa.gov, or Mr. Kerry Kehoe, Federal Consistency 
Specialist, Office for Coastal Management, NOAA, at 240-533-0782, 
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 
former Office of Ocean and Coastal Resource Management and the Coastal 
Services Center. Unless otherwise specified, the term ``Secretary'' 
refers to the Secretary of Commerce.
    The Coastal Zone Management Act. 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. See 16 U.S.C. 1451. 
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.
    Federal Consistency. The CZMA federal consistency provision is an 
important component of the National Coastal Zone Management Program and 
is a key incentive for states to join the Program. See CZMA Sec.  307 
(16 U.S.C. 1456) and NOAA's regulations at 15 CFR part 930. Federal 
consistency is the CZMA provision that federal actions (inside or 
outside a state's coastal zone) that have reasonably foreseeable 
effects on any land or water use or natural resource of the affected 
state's coastal zone must be consistent with the enforceable policies 
of the affected state's federally approved CZMA program. See CZMA Sec.  
307 (16 U.S.C. 1456) and 15 CFR part 930. See NOAA's federal 
consistency website for additional information, https://www.coast.noaa.gov/czm/consistency/ (last visited February 6, 2019).
    The CZMA and NOAA's implementing regulations describe four types of 
federal actions for CZMA federal consistency purposes.
    1. Federal agency activities and development projects (CZMA Sec.  
307(c)(1), (2); 15 CFR part 930, subpart C).
    2. Federal license or permit activities (non-federal applicants) 
(CZMA Sec.  307(c)(3)(A); 15 CFR part 930, subpart D).
    3. Outer Continental Shelf exploration, development and production 
plans (similar to the procedures in subpart D) (CZMA Sec.  
307(c)(3)(B); 15 CFR part 930, subpart E).
    4. Federal financial assistance to state or local agencies (CZMA 
Sec.  307(d); 15 CFR part 930, subpart F).
    It is important to understand that the applicable subparts of 
NOAA's federal consistency regulations for these four categories of 
federal actions (subparts C, D, E, and F) differ with regard to: 
Terminology; who decides whether there are coastal effects; procedural 
timeframes and information requirements; standards of consistency 
(i.e., ``fully consistent'' versus ``consistent to the maximum extent 
practicable''); state objection requirements; and the consequences of 
state objections. Below is a table summarizing some of the key 
differences between subpart C (federal agency activities), subpart D 
(federal license or permit activities) and subpart E (OCS plans). 
Subparts D and E are similar in requirements. Note that subpart F is 
not discussed in detail in this ANPR as it has limited, or no, 
connection to renewable energy or OCS oil and gas projects.

----------------------------------------------------------------------------------------------------------------
                                                                     Non-Federal Applicants for Federal Licenses
                       Activities by a Federal Agency  (e.g., OCS       or Permits (Subpart D) and OCS Plans
                          Oil and Gas Lease Sales)  (Subpart C)                      (Subpart E)
----------------------------------------------------------------------------------------------------------------
Who decides whether   Federal agency decides whether there are      State, with NOAA approval, decides whether
 there are coastal     coastal effects.                              there are coastal effects through
 effects?                                                            ``listing'' and ``unlisted'' requirements
                                                                     for activities requiring federal
                                                                     authorization.
Who submits           Federal agency submits consistency            Applicant submits consistency certification
 consistency           determination (CD) if coastal effects.        (CC).
 determination or
 certification?

[[Page 8630]]

 
When is consistency   Submitted at least 90 days before final       Submitted with or after license or permit
 determination or      action.                                       application to federal agency.
 certification
 submitted?
When does state       Review starts when CD received (if complete)  Review starts when CC and ``necessary data
 review start?                                                       and information'' received.
How long is the       State has 60 (plus 15) days to review. State  State has 6 months to review (with 3-month
 state review          and federal agency can agree to a shorter     status notice). State and applicant can
 process?              or longer review period.                      agree to ``stay'' the 6-month review period
                                                                     for a specified time, after which the
                                                                     remainder of the 6-month review period
                                                                     applies.
What is the           Activity must be ``consistent to the maximum  Activity must be fully consistent as
 applicable federal    extent practicable'' (i.e., fully             determined by the state.
 consistency           consistent unless federal law prohibits
 standard?             full consistency) as determined by the
                       federal agency.
What is the impact    If state concurs or concurrence is presumed,  If state concurs or concurrence is presumed,
 of the state's        federal agency may proceed. If state          federal agency may authorize the activity.
 response?             objects, federal agency can proceed over      If state objects, federal agency may not
                       objection if consistent to the maximum        authorize the activity, unless Secretary of
                       extent practicable.                           Commerce overrides state objection on
                                                                     appeal by the applicant.
Are there             There is no appeal to the Secretary of        Applicant may appeal state objection to the
 administrative or     Commerce for federal agency activities. A     Secretary of Commerce (delegated to NOAA)
 judicial processes    state can challenge a federal agency's        who can override or sustain the state
 available if a        decision to proceed over state objection in   objection. An applicant must file an appeal
 state objects?        federal court and/or a state or federal       within 30 days of receipt of a state
                       agency can seek non-binding mediation         objection. Under CZMA statutory
                       through the Secretary of Commerce or NOAA.    requirements and NOAA's regulations, NOAA
                       If state litigates federal agency decision    will issue a Secretarial CZMA appeal
                       to proceed and federal agency loses in        decision within 265-325 days from the
                       federal court, the President may exempt the   filing of an appeal. The applicant or state
                       activity from CZMA compliance if it is in     can challenge the Secretary's decision in
                       the paramount interest of the United States.  federal court.
----------------------------------------------------------------------------------------------------------------

    Federal Consistency Standards. In accordance with the CZMA and 
NOAA's regulations at 15 CFR part 930, federal license or permit 
activities (subpart D), and OCS exploration plans, and development and 
production plans (subpart E) must be fully consistent with the 
enforceable policies of a state's federally approved CZMA program. If 
the affected state objects to the proposed activity after concluding it 
is not fully consistent with the state's enforceable policies, the 
federal agency may not authorize the activity unless the Secretary of 
Commerce overrides the state's objection on appeal by the applicant. 16 
U.S.C. 1456(c)(3).
    For federal agency activities and development projects (subpart C), 
the ``consistent to the maximum extent practicable'' standard applies. 
When such activities are subject to federal consistency review, they 
shall be carried out in a manner that is consistent to the maximum 
extent practicable with the enforceable policies of a state's federally 
approved CZMA program. 16 U.S.C. 1456(c)(1)(A). NOAA defines 
``consistent to the maximum extent practicable'' at 15 CFR 930.32, 
which requires that federal agencies be ``fully consistent'' ``unless 
full consistency is prohibited by existing law applicable to the 
Federal agency.'' This determination is made by the federal agency. In 
its 2000 and 2006 final rules, NOAA clarified how the ``consistent to 
the maximum extent practicable'' standard applies. The 2000 rule, in 
response to requests by Federal agencies, explained that Federal 
agencies can proceed over a state's objection, due to an unforeseen 
circumstance or emergency, or when a Federal agency asserts, based on 
its own administrative decision record, it is fully consistent even if 
the state disagrees, or the requirements of other federal law prevent 
full consistency. See 65 FR 77123, 77133-34 and 77142-43 (Dec. 8, 
2000), and 71 FR 787, 802 (comments 5 and 6) and 809 (comment 35) (Jan. 
5, 2006). These two Federal Register documents are on NOAA's website 
at: https://www.coast.noaa.gov/czm/consistency/media/frfinal.pdf and 
https://www.coast.noaa.gov/czm/consistency/media/finalrulefedregjan05_06.pdf (both last visited February 6, 2019).
    Federal Consistency and the Outer Continental Shelf Lands Act 
(OCSLA). The CZMA is intertwined with the OCSLA's oil and gas leasing 
and development program. The CZMA and its implementing regulations 
specifically describe how the CZMA federal consistency provisions apply 
to OCS oil and gas leasing, exploration, and development. The OCSLA and 
its implementing regulations prohibit the Secretary of the Interior 
from permitting any activity provided in either an Exploration Plan, a 
Development and Production Plan, or a Development Operations and 
Coordination Document, unless the coastal state concurs or is 
conclusively presumed to concur with the CZMA consistency certification 
accompanying the plan. If the coastal state objects to the CZMA 
consistency certification, the Secretary of the Interior may still 
permit such activity if, on appeal by the applicant, the Secretary of 
Commerce finds that such activity is consistent with the objectives of 
the CZMA or is otherwise necessary in the interest of national 
security. See 16 U.S.C. 1456(c)(3)(B)(iii); see also 43 U.S.C. 
1340(c)(2), 1351(d) and (h). (A Development Operations and Coordination 
Document is the equivalent of a Development and Production Plan in the 
Western Gulf of Mexico.) The OCSLA expressly references the relevant 
sections of the CZMA.
    Below is a brief description of how the CZMA applies to the four 
primary stages of OCS oil and gas activity. The four primary OCS oil 
and gas stages and the applicable subpart of NOAA's regulations are: 
(1) National OCS Oil

[[Page 8631]]

and Gas Leasing Program (no CZMA review); (2) OCS Oil and Gas Lease 
Sale (subpart C); (3) Exploration Plan (subpart E); and (4) Development 
and Production Plan or Development Operations and Coordination Document 
(subpart E). Below is also a description of the various ways in which 
geological and geophysical seismic surveys may be subject to state CZMA 
review.
    National OCS Oil and Gas Leasing Program (National OCS Program). 
CZMA federal consistency does not apply to the National OCS Program. 
The Bureau of Ocean Energy Management (BOEM), with NOAA's concurrence, 
determined that the National OCS Program is not a ``proposal for 
action'' under NOAA's CZMA regulations as a lease sale may not happen 
and any future coastal effects are too speculative at the National OCS 
Program stage. See 71 FR 787, 792 (Jan. 5, 2006), https://www.coast.noaa.gov/czm/consistency/media/finalrulefedregjan05_06.pdf 
(last visited February 6, 2019).
    OCS Oil and Gas Lease Sale (16 U.S.C. 1456(c)(1); 15 CFR part 930, 
subpart C). An OCS oil and gas lease sale is a federal agency activity 
under CZMA Sec.  307(c)(1) and subpart C of NOAA's regulations. If BOEM 
holds a lease sale, BOEM determines which states are affected and 
provides those states with a consistency determination for review and 
concurrence, objection, or presumed concurrence if there is no response 
within the regulatory timeframe. If a state objects to BOEM's 
consistency determination, BOEM can still proceed with the lease sale 
if BOEM determines it is ``consistent to the maximum extent 
practicable'' with the state's coastal management program. Because OCS 
oil and gas lease sales are subject to subpart C of the federal 
consistency regulations, there is no right of appeal to the Secretary 
of Commerce if a state objects to BOEM's consistency determination. 
Rather, BOEM may decide to proceed over the state's objection and hold 
a lease sale under the consistent to the maximum extent practicable 
standard if BOEM determines the lease sale: (1) Is fully consistent 
with the enforceable policies of the state's management program; or (2) 
BOEM is legally prohibited from being fully consistent. 15 CFR 
930.43(d).
    Once a lease sale is granted it gives the lessee the authority to 
conduct on-lease ancillary activities, such as geological and 
geophysical (G&G) seismic surveys on the lease blocks acquired. BOEM 
requires the submittal of an Exploration Plan for certain on-lease 
ancillary activities. These on-lease activities are considered as part 
of a state's CZMA review during the lease sale or later during review 
of an Exploration Plan. A BOEM permit may be required for certain off-
lease G&G surveys under 30 CFR part 551. An off-lease G&G survey is a 
survey that is not part of a lease sale or Exploration Plan. In these 
instances, states would not have the ability to review G&G surveys in a 
lease sale or Exploration Plan. However, as discussed further below, 
states may have the ability to review off-lease G&G survey activities 
as a federal license or permit activity in accordance with NOAA's 
regulations at 15 CFR part 930, subpart D.
    Exploration Plan (16 U.S.C. 1456(c)(3)(B); 15 CFR part 930, subpart 
E). If an OCS oil and gas lessee decides to commence exploration on a 
lease, the lessee is required to propose an Exploration Plan to BOEM. 
Depending on the location of the proposed Exploration Plan, CZMA Sec.  
307(c)(3)(B) requires that the lessee/applicant submit a consistency 
certification to the affected state(s), through BOEM. If a state 
objects to a consistency certification for an Exploration Plan, BOEM 
cannot authorize exploration activities unless the applicant appeals 
the state objection to the Secretary of Commerce pursuant to 15 CFR 
part 930, subpart H and the Secretary overrides the state's CZMA 
objection. Alternatively, the state, applicant, and BOEM could reach an 
agreement such that the state would remove its objection, allowing BOEM 
to authorize exploration activities. This agreement could occur before 
or during an appeal.
    Development and Production Plan or Development Operations and 
Coordination Document (16 U.S.C. 1456(c)(3)(B); 15 CFR part 930, 
subpart E, and 30 CFR part 550, subpart B). If a lessee completes its 
exploration activities and decides to extract oil and gas for 
production, it must provide BOEM with a Development and Production Plan 
or a Development Operations and Coordination Document (for the Western 
Gulf of Mexico). CZMA Sec.  307(c)(3)(B) requires that the lessee/
applicant submit a consistency certification to the affected state(s), 
through BOEM, for the Development and Production Plan or Development 
Operations and Coordination Document, just as it does for the 
Exploration Plan. Depending on the location of the development, one or 
more states will receive a consistency certification from the 
applicant, through BOEM. If a state objects to a consistency 
certification for a Development and Production Plan or Development 
Operations and Coordination Document, BOEM cannot authorize development 
and production unless the applicant appeals the state objection to the 
Secretary of Commerce pursuant to 15 CFR part 930, subpart H and the 
Secretary overrides the state's CZMA objection. Alternatively, the 
state, applicant, and BOEM could reach an agreement such that the state 
would remove its objection, allowing BOEM to authorize exploration 
activities. This agreement could occur before or during an appeal.
    Geological and Geophysical Permits for Off-lease Activities (16 
U.S.C. 1456(c)(3)(A); 15 CFR part 930, subpart D and 30 CFR part 551). 
Off-lease G&G surveys, as well as those conducted on lands under lease 
to a third party, require a permit from BOEM under 30 CFR part 551. 
Off-lease G&G surveys are surveys that are not authorized by BOEM, or 
reviewed by states for federal consistency, as part of a lease sale or 
Exploration Plan. These G&G permit applications may be subject to the 
CZMA federal consistency process as a federal license or permit 
activity pursuant to NOAA's regulations at 15 CFR part 930, subpart D. 
A consistency certification is required for these off-lease G&G permits 
if the state has, pursuant to 15 CFR 930.53, (1) listed the G&G permits 
in the state's NOAA-approved federal consistency list, and (2) included 
a geographic location description in its coastal management program. If 
not, then a state would need to request NOAA approval to review off-
lease G&G permit applications on a case-by-case basis as an unlisted 
activity under 15 CFR 930.54. If a state objects to a consistency 
certification for a G&G permit under 30 CFR part 551, BOEM cannot 
authorize the activity unless the applicant appeals the state objection 
to the Secretary of Commerce pursuant to 15 CFR part 930, subpart H and 
the Secretary overrides the state's CZMA objection. Alternatively, the 
state, applicant, and BOEM could reach an agreement such that the state 
would remove its objection, allowing BOEM to authorize exploration 
activities. This agreement could occur before or during an appeal.
    Federal Consistency Appeal Process. The CZMA appeal process is 
available to non-federal applicants for federal license and permit 
activities (subpart D), OCS Exploration, Development and Production 
Plans (subpart E), and federal financial assistance (subpart F). The 
appeal process takes 265 to 325 days to complete. Congress added this 
timeframe to the CZMA in the Energy Policy Act of 2005, Pub. L. 109-58, 
and NOAA added the timeframe to NOAA's regulations at 15 CFR part 930, 
subpart H in NOAA's 2006 rulemaking, 71 FR 75864. Historically, state 
objections to Exploration Plans or Development and

[[Page 8632]]

Production Plans do not happen very often. As noted in NOAA's 2006 
final rule:

    Since 1978, [BOEM] has approved over 10,600 [Exploration Plans] 
and over 6,000 [Development and Production Plans]. States have 
concurred with nearly all of these plans. In the 30-year history of 
the CZMA, there have been only 18 instances where the offshore oil 
and gas industry appealed a State's federal consistency objection to 
the Secretary of Commerce. The Secretary issued a decision in 14 of 
those cases. The Secretary did not issue a decision for the other 4 
OCS appeals because the appeals were withdrawn due to settlement 
negotiations between the State and applicant or a settlement 
agreement between the Federal Government and the oil companies 
involved in the projects. Of the 14 decisions (1 [Development and 
Production Plan] and 13 [Exploration Plans]), there were 7 decisions 
to override the State's objection and 7 decisions not to override 
the State.

    71 FR 787, 791 (Jan 5, 2006). These numbers are still valid. The 
most recent Secretarial appeal of an OCS oil and gas plan was in 1999. 
See NOAA's CZMA appeal spreadsheet for more information on CZMA appeals 
at https://www.coast.noaa.gov/czm/consistency/media/appealslist.pdf 
(last visited February 6, 2019).
    NOAA's 2006 Final Rule. NOAA revised its CZMA federal consistency 
regulations in 2006 to address concerns raised by the energy industry, 
particularly regarding OCS oil and gas, in response to the 2001 Vice 
President's Energy Policy Report, and the Energy Policy Act of 2005. 
The 2006 revision was finalized after close coordination with the 
Department of the Interior, the Department of Energy, and with 
substantial input by the energy industry and the coastal states. See 
NOAA's final rule published in the Federal Register, 71 FR 787 (Jan. 5, 
2006), https://www.coast.noaa.gov/czm/consistency/media/finalrulefedregjan05_06.pdf (last visited February 6, 2019). NOAA's 
2006 final rule removed uncertainties in various time frames in the 
regulations, provided an expedited and date-certain period for 
processing CZMA consistency appeals, and provided industry with greater 
transparency and predictability in the CZMA process. The CZMA 
Secretarial appeals process deadlines were mandated by amendments to 
the CZMA by the Energy Policy Act of 2005, amending 16 U.S.C. 1465 
(appeals to the Secretary) and adding section 1466 (appeals relating to 
offshore mineral development). At that time, NOAA evaluated the 
rulemaking in the context of what changes could be made without 
statutory amendments.

II. Action Requested From the Public

    In accordance with Executive Order 13795, this Advance Notice of 
Proposed Rulemaking seeks the public and regulated community's input on 
what changes could be made to NOAA's CZMA federal consistency 
regulations at 15 CFR part 930 to make the consistency process more 
efficient across all stages of OCS oil and gas projects from leasing to 
development or renewable energy projects. Any input should be 
consistent with statutory provisions regarding the CZMA review of OCS 
oil and gas lease sales, Exploration Plans, Development and Production 
Plans, Development Operations and Coordination Documents, G&G permits, 
and appeals to the Secretary of Commerce. NOAA recommends that anyone 
providing input review NOAA's 2006 final rule discussed above. NOAA 
notes that addressing these questions could result in a proposed rule 
that includes numerous regulatory modifications that could also apply 
to other types of federal actions and not just renewable or non-
renewable energy projects.
    NOAA is interested in the public and regulated community responses 
to the following statements.
    1. What changes could be made to NOAA's federal consistency 
regulations at 15 CFR part 930 that could streamline federal 
consistency reviews and provide industry with greater predictability 
when making large investments in offshore renewable and non-renewable 
energy development?
    2. NOAA is seeking comments on whether and how NOAA could achieve 
greater efficiency to process an appeal in less time and increase 
predictability in the outcome of an appeal--while continuing to meet 
the requirements and purposes of the CZMA--by limiting the Secretary of 
Commerce's review of an appeal of a state's objection to an OCS oil and 
gas Development and Production Plan or Development Operations and 
Coordination Document, to information that the Secretary of Commerce 
had not previously considered in an appeal of an OCS oil and gas 
Exploration Plan for the same lease block.
    In addition, NOAA requests any comment on the types of new 
information that may be produced at different stages of OCS oil and gas 
projects to provide an indication of what information may be relevant 
to subsequent appeals. For example, a state may object under the CZMA 
to an OCS oil and gas Exploration Plan and the applicant may then 
appeal the objection to the Secretary of Commerce and the Secretary 
could override the state's objection. The applicant could then complete 
its exploration activities and then submit to BOEM a Development and 
Production Plan or Development Operations and Coordination Document and 
the state could again issue a CZMA objection. In this scenario, there 
may be a substantial amount of technical, environmental, safety, 
national interest, and alternative analysis information and review by 
BOEM, other federal agencies, the states, NOAA and Commerce for the 
Exploration Plan and for an appeal of a state CZMA objection to an 
Exploration Plan. This information may be similar or the same as that 
developed for an appeal of a state CZMA objection to the later 
Development and Production Plan or Development Operations and 
Coordination Document for the same lease block. Therefore, NOAA is 
seeking comment on whether, in such a situation, it is efficient and 
effective to use the Secretary's override of the Exploration Plan as a 
precedent and limit the Secretary's review of an appeal of a state's 
objection to an OCS oil and gas Development and Production Plan or 
Development Operations and Coordination Document to information and 
issues not previously considered by the Secretary when deciding an 
appeal regarding the OCS Exploration Plan.
    3. When an applicant seeks Secretarial review of a state CZMA 
federal consistency objection, the CZMA requires the Secretary to 
collect appeal fees from the applicant. 16 U.S.C. 1456(i). The fees 
include an ``application fee of not less than $200 for minor appeals 
and not less than $500 for major appeals, unless the Secretary, upon 
consideration of an applicant's request for a fee waiver, determines 
that the applicant is unable to pay the fee.'' 16 U.S.C. 1456(i)(1). 
Under NOAA's regulations, an appeal involving a project valued in 
excess of $1 million is considered major. 15 CFR 930.125(c).
    In addition to the application fee, the Secretary is also directed 
to collect such other fees as are necessary to recover the full costs 
of administering and processing appeals of a state CZMA federal 
consistency objection. 16 U.S.C. 1456(i)(2)(A) and 15 CFR 930.126. 
However, if the Secretary waives the application fee for an applicant, 
the Secretary shall waive all other fees for the applicant. 16 U.S.C. 
1456(i)(2)(B).
    Under the Regulatory Flexibility Act (RFA), at a proposed rule 
stage NOAA must determine whether the rule, if adopted, would have a 
significant economic impact on a substantial number of small entities. 
The term ``small entity'' includes small businesses, small 
organizations, and

[[Page 8633]]

small governmental jurisdictions. State and federal agencies and 
private landowners are not small entities under the RFA.
    NOAA has stated for past CZMA federal consistency rulemakings that 
the federal consistency process and appeals to the Secretary do not 
have a significant impact on small entities and anticipates the same 
finding would be reached for a proposed rule based upon this document. 
See e.g., 65 FR 20270, 20280-81 (Apr. 14, 2000). However, NOAA invites 
comment on the potential costs that could be incurred by small entities 
during CZMA consistency appeals if NOAA revises the federal consistency 
regulations to provide greater efficiency and predictability as 
discussed in this document.
    Comments submitted to NOAA will help us determine whether to 
propose changes to the CZMA federal consistency regulations. Any 
proposed changes to the federal consistency regulations would be 
published in the Federal Register as a proposed rule following 
compliance with the Administrative Procedures Act (5 U.S.C. 553) and 
other relevant statutes and executive orders.
    This regulatory action is significant for purposes of Executive 
Order 12866.

    Dated: March 1, 2019.
Paul M. Scholz,
Chief Financial Officer/Chief Administrative Officer, National Ocean 
Service, National Oceanic and Atmospheric Administration.
[FR Doc. 2019-04199 Filed 3-8-19; 8:45 am]
 BILLING CODE P