Coastal Zone Management Act Federal Consistency Regulations

AGENCY:

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

ACTION:

Final rule; technical corrections.

SUMMARY:

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

DATES:

Effective December 19, 2006.

FOR FURTHER INFORMATION CONTACT:

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

ADDRESSES:

Office of Ocean and Coastal Resource Management/NOAA, c/o Coastal Response Research Center, University of New Hampshire, 35 Colovos Road, 246 Gregg Hall, Durham, NH 03824-3534.

Headquarter and Official Mailing/Filing Address: Coastal Programs Division, Office of Ocean and Coastal Resource Management/NOAA, 1305 East-West Hwy., 11th Floor (N/ORM3), Silver Spring, MD 20910, Fax: 301-713-4367.

Additional information on federal consistency can be located at OCRM's federal consistency web page: http://coastalmanagement.noaa.gov/consistency/welcome.html.

SUPPLEMENTARY INFORMATION:

Background

The CZMA was enacted in 1972 to encourage States to be proactive in managing natural resources for their benefit and the benefit of the Nation. The CZMA recognizes a national interest in the resources of the coastal zone and in the importance of balancing the competing uses of those resources. The CZMA is a voluntary program for States. If a State elects to participate it must develop and implement a CMP pursuant to federal requirements. See CZMA section 306(d); 15 CFR part 923. State CMPs are comprehensive management plans that describe the uses subject to the management program, the authorities and enforceable policies of the management program, the boundaries of the State's coastal zone, the organization of the management program, and related State coastal management concerns. The State CMPs are developed with the participation of Federal agencies, industry, other interested groups and the public. Thirty-five coastal States are eligible to participate in the federal coastal management program. Thirty-four of the eligible States have federally approved CMPs. Illinois is not currently in program development.

The CZMA federal consistency provision is a cornerstone of the CZMA program and a primary incentive for States' participation. Federal agency activities that have coastal effects must be consistent to the maximum extent practicable with the federally approved enforceable policies of the State's CMP. In addition, non-federal applicants for federal authorizations and funding must be fully consistent with the enforceable policies of State CMPs. States either concur with or object to a federal agency's consistency determination, under 15 CFR part 930, subpart C, or an applicant's consistency certification, under 15 CFR part 930, subparts D, E or F.

For non-federal applicants for federal authorizations under 15 CFR part 930, subparts D, E or F, the applicant may appeal a State's CZMA objection to the Secretary of Commerce pursuant to CZMA sections 307(c)(3) and (d). The Secretary overrides the State's objection if the Secretary finds that the activity is consistent with the objectives or purposes of the CZMA or is necessary in the interest of national security. If the Secretary overrides the State(s objection, then the Federal agency may issue its authorization. NOAA's Federal consistency regulations were first promulgated in 1979.

On January 5, 2006, NOAA published a final rule amending the Agency's regulations implementing the CZMA, including procedural requirements governing the processing of consistency appeals filed under section 307 of the CZMA. These changes sought to effectuate necessary changes identified since the regulations were last amended in 2000, and respond to amendments to the CZMA enacted by Congress in the Energy Policy Act of 2005 (Pub. L. 109-58; 119 Stat. 594 (2005)) (Energy Policy Act).

Explanation of Changes to the Federal Consistency Regulations

Rule Change 1: § 930.125(b). The January 2006 amendments in part added new requirements concerning the content of a notice of appeal filed with the Secretary of Commerce. Section 930.125(b) now requires that a notice of appeal include a statement explaining the bases for appealing the State agency's objection. As noted in the Final Rule, this new requirement was promulgated to help the Secretary decide appeals within new time constraints established under the Energy Policy Act, by requiring that appellants clarify from the outset each separate basis for appeal. See 71 FR 788, 799 (Jan. 5, 2006). If identified in the notice of appeal, these bases can be argued in greater detail within an appellant's subsequent brief.

Section 930.125(b) includes an inadvertent error that necessitates technical correction. This section requires a statement explaining the bases for appeal under “§ 923.121,” a cross reference that has no relevance to consistency appeals. The correct cross reference is §§ 930.121 and 122. Sections 930.121 and 122 are the two grounds available on which to base an appeal. With this technical correction, § 930.125(b) requires the notice of appeal to: (1) Explain why the project is consistent with the objectives or purposes of the CZMA (§ 930.121), and/or is otherwise necessary in the interest of national security (§ 930.122), outlining appellant's arguments for each element contained within §§ 930.121 and/or 930.122 (with the understanding that appellant will amplify upon these arguments in briefs); and (2) identify any procedural arguments pursuant to § 930.129(b).

Rule Change 2: § 930.127(d)(1) and § 930.127(i)(2). Both of these sections require the appellant to submit four copies of briefs, supporting materials and, in the case of appeals of energy projects under § 930.127(i)(2), the consolidated record maintained by the lead Federal permitting agency. NOAA has determined that one hard copy and one electronic copy are sufficient to process appeals to the Secretary. This technical change will also reduce paperwork burdens on appellants.

Miscellaneous Rulemaking Requirements

Executive Order 12372: Intergovernmental Review

This program is subject to Executive Order 12372.

Executive Order 12866: Regulatory Planning and Review

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

Executive Order 13211

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

Administrative Procedure Act

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

Regulatory Flexibility Act

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

Paperwork Reduction Act

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

National Environmental Policy Act

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

List of Subjects in 15 CFR Part 930

• Administrative practice and procedure
• Coastal zone
• Reporting and recordkeeping requirements

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

PART 930—FEDERAL CONSISTENCY WITH APPROVED COASTAL MANAGEMENT PROGRAMS

1. The authority citation continues to read as follows:

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

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

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