Coastal Zone Management Program Regulations

SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is

revising and consolidating its regulations concerning coastal zone

management (CZM) program development, approval, grants and evaluation,

and removing obsolete rules concerning research and technical

assistance. These regulations implement, in part, the Coastal Zone

Management Act, as amended (CZMA). The purpose of this rule is to

remove outdated provisions and to revise and consolidate remaining

provisions. The intended effect of this rule is to make the CZM program

regulations more concise and easier to use.

EFFECTIVE DATE: July 29, 1996.

FOR FURTHER INFORMATION CONTACT:

Roger Eckert, NOAA Office of General Counsel for Ocean Services, at

301-713-2967 (ext. 213), fax: 301-713-4408, e-mail:

[email protected]

SUPPLEMENTARY INFORMATION:

I. Authority

This rule is issued under the authority of the CZMA, 16 U.S.C. 1451

et seq.

II. Background

The CZMA was enacted to encourage and assist the 35 eligible

coastal states and territories to develop and implement CZM programs to

preserve, protect, develop and, where possible, restore or enhance the

resources of the Nation's coasts. In all, 29 coastal states and

territories have chosen to participate in this program, and their

programs have received federal approval. Five states are currently

developing programs for federal approval. Many of the regulations

promulgated when the program began are no longer needed, now that the

program has matured.

In March 1995, President Clinton issued a directive to federal

agencies regarding their responsibilities under his Regulatory Reform

Initiative. This initiative is part of the National Performance Review

and calls for immediate, comprehensive regulatory reform. The President

directed all agencies to review all of their regulations, with an

emphasis on eliminating or modifying those that are obsolete or

otherwise in need of reform. This rule is intended to carry out the

President's directive with respect to the regulations implementing the

Coastal Zone Management program.

On March 11, 1996 (61 FR 9745-9762), the Office of Ocean and

Coastal Resource Management (OCRM) proposed to revise and consolidate

these CZM regulations. Concurrent with the issuance of the proposed

regulations, OCRM mailed draft guidance to coastal states concerning

the program change regulations. OCRM received comments on the proposed

revision of the regulations and/or draft program change guidance from

the states of: Connecticut, Massachusetts, Michigan, New Hampshire,

Oregon, Pennsylvania and Texas. These state comments focused on the

proposed revision of 15 CFR 923.80(d) (the definition of a program

amendment). OCRM will evaluate the comments directed at the draft

guidance, and revise the guidance as appropriate. The comments directed

at the proposed revision of the regulations are addressed below. In

addition, OCRM will continue to consider these comments in its

implementation of the CZMA and these regulations.

OCRM also received comments from the Federal Emergency Management

Agency (FEMA) directed at coastal hazard mitigation efforts. Sections

303(2)(K) and 303(3) of the CZMA identify the need to address the

adverse effects of coastal hazards, including erosion, land subsidence

and flooding. While the regulations already identify hazardous areas as

areas of particular concern (15 CFR 923.21(b)(7)), some additional

emphasis on coastal hazards has been placed in Sec. 923.25(a) and

Sec. 923.50(a)(5) to reflect the CZMA's policies. Coastal states may

rely on these interpretive statements when submitting program changes

concerning coastal hazard mitigation efforts. In addition, the

regulation concerning plan coordination (Sec. 923.56(b)(2)) has been

updated, consistent with FEMA's current planning authorities.

Accordingly, this final rule revises and consolidates the CZM

regulations as follows:

A. Consolidates Regulations

The rule consolidates CZM program regulations found in present 15

CFR parts 923, 927, 928 and 932 into a revised part 923. This

consolidation is expected to make the regulations easier for coastal

states, territories and the public to use.

B. Removes Regulations Restating Statutory Language

The rule removes those regulations in 15 CFR part 923 that simply

restate provisions contained in the Coastal Zone Management Act. These

provisions are replaced, where appropriate, with references to the

applicable sections of the CZMA. Removal of these provisions is in

accordance with the rules of the Office of the Federal Register which

discourage agencies from restating the language of a law in a document

intended for publication in the Federal Register.

C. Removes Outdated Provisions and Simplifies Remaining Provisions

The rule removes those regulations in 15 CFR part 923 that are no

longer necessary because the CZM program has reached its maturity, and

simplifies the remaining provisions. Many of the more detailed

regulatory requirements are removed. Since part 923 largely addresses

requirements for the development and approval of coastal management

programs, many of these changes do not apply to those states that

already have federally approved CZM programs. For the eligible coastal

states that do not yet have approved programs, OCRM will continue to

provide necessary guidance, and actual and timely notice of appropriate

application procedures. In particular, OCRM will continue to work with

the 5 coastal states currently developing programs in order to ensure

that those programs meet the criteria for federal approval. Finally,

the rule removes 15 CFR part 933 because it implements a portion of the

CZMA that was repealed in 1986. OCRM will provide guidance on a

corresponding technical assistance provision that was added to the CZMA

in the Coastal Zone Act Reauthorization Amendments of 1990.

D. Updates Program Change Regulations

The rule updates the program change regulations so that they more

precisely reflect the structure of coastal management programs. In

particular, the four criteria identified at 15 CFR 923.80(d)(1)-(4), by

which program changes are assessed by OCRM, are replaced with a

reference to the five program approvability areas identified in part

923: (1) uses subject to

[[Page 33803]]

management, (2) special management areas, (3) boundaries, (4)

authorities and organization, and (5) coordination, public involvement

and national interest. These criteria will apply when states submit

their proposed program changes to OCRM for review and approval; they

are intended to assist in OCRM's evaluation of a program change.

The revised definition of a program amendment located at 15 CFR

923.80(d) is intended to ease rather than increase the administrative

burden of states. While the four criteria were an effort to group the

program approvability areas, not all program changes fit squarely

within the four groups. The rule repeats the headings of subparts B

through F of part 923, and so, tracks the program approvability areas.

In addition, states may refer to these subparts for assistance in their

analysis of a program change. Furthermore, states are no longer

required to address those program areas that do not apply to their

proposed changes. Rather, the rule allows states to discuss one or more

of the program areas that would be affected by a change. Thus, the rule

allows states greater flexibility to provide a more focused analysis.

OCRM anticipates that the great majority of program change requests

will continue to be routine program changes, i.e., OCRM does not

anticipate that the revision will increase the number of program

changes that are determined to be substantial in nature.

The element of 15 CFR 923.80(d) relating to special management

areas has been simplified from ``criteria or procedures for designating

or managing areas [of] particular concern or areas for preservation or

restoration,'' to the heading for subpart C of part 923: ``special

management areas.'' OCRM does not anticipate that this revision will

increase the number of program changes relating to special management

areas that will be determined to be amendments. Specifically, the

elimination of the phrase ``criteria or procedures for designating or

managing'' is not intended to broaden the scope of this element.

Conversely, OCRM declines to reinsert this phrase into 15 CFR 923.80(d)

because, in practice, this phrase has proven to be of little utility to

coastal states submitting program changes in this category. Rather, the

test for an amendment to the special management area portion of a

coastal management program remains unchanged: the program change must

be substantial. In other words, under both the old and the new

language, whether a change in this area of a state's program

constitutes an amendment requires an evaluation of whether the program

change is substantial.

The addition of ``authorities'' as a partial fifth category in 15

CFR 923.80(d) is merely a restructuring of the definition of program

amendment. Previously, the term ``authorities'' was used at the outset

of the definition of program amendment, and proved to be a source of

confusion. Again, the test of whether a change is substantial, and

therefore an amendment, remains unchanged. Minor program changes,

including minor changes in authorities, remain approvable through the

routine program change process.

The addition of an ``organization'' element to 15 CFR 923.80(d)

clarifies that federal approval of coastal programs is indeed

predicated, in part, on whether the state is organized to manage its

coastal zone in an effective manner. The prior four criteria contained

in Sec. 923.80(d) did not assist states in analyzing the impacts of

organizational changes, whereas the revision explicitly addresses this

area of program approvability. Again, minor program changes, including

minor organizational changes, remain approvable through the routine

program change process.

The rule also adds explanatory statements concerning the addition

of any enforceable policies to management programs. These statements

reflect Congress' increased focus on enforceable policies in the

Coastal Zone Act Reauthorization Amendments of 1990. OCRM, federal

agencies, applicants for federal licenses or permits, and often the

state coastal programs themselves, cannot always identify the

enforceable policies in a program. OCRM recognizes that events beyond a

coastal management program's control can change the enforceability of a

policy. However, OCRM needs to know just what is being changed at the

time of a program change, and federal agencies and applicants should be

allowed to comment on the enforceable policies submitted for

incorporation.

To be sure, coastal management programs allow for flexibility in

state coastal management efforts. Certain changes in coastal management

efforts may not need OCRM approval because they do not affect the

federally-approved program. In other words, states structured their

coastal management programs with varying levels of detail sufficient to

``guide public and private uses of lands and waters in the coastal

zone.'' CZMA section 304(12). Depending on the nature of the particular

state coastal management program and the nature of the management

change, a state may make minor adjustments in how it manages the

coastal zone without necessarily changing its approved coastal

management program.

Alternatively, a state may determine that a necessary change in its

federally-approved coastal management program is so insignificant that

it need not be submitted to OCRM for review. However, the expenditure

of CZMA funds is limited to those approved parts of a state's program

(with an exception identified in CZMA section 306(e)(3)(B)), as is the

requirement of federal consistency. In addition, this regulatory

revision does not change the possibility that failure to submit program

changes for OCRM approval may lead to adverse evaluation findings (15

CFR 928.5(a)(3)(i)(G) has been redesignated as 15 CFR

923.135(a)(3)(i)(G)). The routine program change procedure is intended

to be an administratively efficient means by which states may submit,

on a routine or periodic basis, insubstantial program changes for OCRM

review and approval. OCRM shares the desire of coastal states to

minimize administrative burdens and will work cooperatively to achieve

this goal.

Finally, the term ``routine program implementation'' is changed to

the more descriptive term ``routine program change,'' and existing

agency practice that allows for the resubmittal of routine program

change requests is codified.

III. Miscellaneous Rulemaking Requirements

Executive Order 12372: Intergovernmental Review

This program is subject to Executive Order 12372.

Executive Order 12612: Federalism Assessment

NOAA has concluded that this regulatory action does not have

sufficient federalism implications to warrant the preparation of a

Federalism Assessment under Executive Order 12612.

Executive Order 12866: Regulatory Planning and Review

This regulatory action is not significant for purposes of Executive

Order 12866.

Regulatory Flexibility Act

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce has certified to the Chief Counsel for Advocacy

of the Small Business Administration that the rule will not have a

significant impact on a substantial number of small entities because

(1) the rule addresses CZM

[[Page 33804]]

programs of coastal states and territories, (2) those provisions that

are being removed, because they are outdated or repeat statutory

language, are unnecessary for the development and implementation of CZM

programs, and (3) the revision and consolidation of remaining

provisions will impose no additional burden on small entities. In

particular, the update of the CZM program change regulations will help

ensure the continued approvability of CZM programs. Accordingly, a

Regulatory Flexibility Analysis was not prepared.

Paperwork Reduction Act

The rule contains collection-of-information requirements subject to

review and approval by OMB under the Paperwork Reduction Act (PRA). The

collection-of-information requirements contained in this rule have been

approved under OMB Control Number 0648-0119. The estimated response

times for these requirements are 480 hours for management program

approval and 8 hours for program amendments and routine program

changes. The response estimates shown include the time for reviewing

instructions, searching exiting data sources, gathering and maintaining

data needed, and completing and reviewing the collection of

information.

Notwithstanding any other provision of the law, no person is

required to respond to, nor shall any person be subject to a penalty

for failure to comply with a collection of information, subject to the

requirements of the PRA, unless that collection of information displays

a currently valid OMB Control Number.

National Environmental Policy Act

NOAA has concluded that this regulatory action does not constitute

a major federal action significantly affecting the quality of the human

environment. Therefore, an environmental impact statement is not

required.

List of Subjects

15 CFR Parts 923, 928 and 932

Administrative practice and procedure, Coastal zone, Grant

programs--Natural resources, Reporting and recordkeeping requirements.

15 CFR Part 927

Administrative practice and procedure, Coastal zone, Grant

programs--Natural resources.

15 CFR Part 933

Administrative practice and procedure, Coastal zone, Grant

programs--Natural resources, Reporting and recordkeeping requirements,

Research.

Dated: June 21, 1996.

David Evans,

Acting Deputy Assistant Administrator for Ocean Services and Coastal

Zone Management.

For the reasons set out in the Preamble, 15 CFR Chapter IX is

amended as follows:

1. The heading for Part 923 is revised to read as follows:

PART 923--COASTAL ZONE MANAGEMENT PROGRAM REGULATIONS

2. The table of contents for Part 923 is revised to read as

follows:

Subpart A--General

Sec.

923.1 Purpose and scope.

923.2 Definitions.

923.3 General requirements.

Subpart B--Uses Subject to Management

923.10 General.

923.11 Uses subject to management.

923.12 Uses of regional benefit.

923.13 Energy facility planning process.

Subpart C--Special Management Areas

923.20 General.

923.21 Areas of particular concern.

923.22 Areas for preservation or restoration.

923.23 Other areas of particular concern.

923.24 Shorefront access and protection planning.

923.25 Shoreline erosion/mitigation planning.

Subpart D--Boundaries

923.30 General.

923.31 Inland boundary.

923.32 Lakeward or seaward boundary.

923.33 Excluded lands.

923.34 Interstate boundary.

Subpart E--Authorities and Organization

923.40 General.

923.41 Identification of authorities.

923.42 State establishment of criteria and standards for local

implementation--Technique A.

923.43 Direct State land and water use planning and regulation--

Technique B.

923.44 State review on a case-by-case basis of actions affecting

land and water uses subject to the management program--Technique C.

923.45 Air and water pollution control requirements.

923.46 Organizational structure.

923.47 Designated State agency.

923.48 Documentation.

Subpart F--Coordination, Public Involvement and National Interest

923.50 General.

923.51 Federal-State consultation.

923.52 Consideration of the national interest in facilities.

923.53 Federal consistency procedures.

923.54 Mediation.

923.55 Full participation by State and local governments,

interested parties, and the general public.

923.56 Plan coordination.

923.57 Continuing consultation.

923.58 Public hearings.

Subpart G--Review/Approval Procedures

923.60 Review/approval procedures.

Subpart H--Amendments to and Termination of Approved Management

Programs

923.80 General.

923.81 Requests for amendments.

923.82 Amendment review/approval procedures.

923.83 Mediation of amendments.

923.84 Routine program changes.

Subpart I--Applications for Program Development of Implementation

Grants

923.90 General.

923.91 State responsibility.

923.92 Allocation.

923.93 Eligible implementation costs.

923.94 Application for program development or implementation

grants.

923.95 Approval of applications.

923.96 Grant amendments.

Subpart J--Allocation of Section 306 Program Administration Grants

923.110 Allocation formula.

Subpart K--Coastal Zone Enhancement Grants Program

923.121 General.

923.122 Objectives.

923.123 Definitions.

923.124 Allocation of section 309 funds.

923.125 Criteria for section 309 project selection.

923.126 Pre-application procedures.

923.127 Formal application for financial assistance and application

review and approval procedures.

923.128 Revisions to assessments and strategies.

Subpart L--Review of Performance

923.131 General.

923.132 Definitions.

923.133 Procedure for conducting continuing reviews of approved

State CZM programs.

923.134 Public participation.

923.135 Enforcement.

3. The authority for Part 923 is revised to read as follows:

Authority: 16 U.S.C. 1452 et seq. 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; (31 U.S.C. 6506; 42 U.S.C. 3334).

4. Subpart J consisting of Secs. 923.90 through 923.98 is removed,

and Subparts A through I of Part 923 are revised to read as follows:

[[Page 33805]]

Subpart A--General

Sec. 923.1 Purpose and scope.

(a) The regulations in this part set forth the requirements for

State coastal management program approval by the Assistant

Administrator for Ocean Services and Coastal Zone Management pursuant

to the Coastal Zone Management Act of 1972, as amended (hereafter, the

Act); the grant application procedures for program funds; conditions

under which grants may be terminated; and requirements for review of

approved management programs.

(b) Sections 306 and 307 of the Act set forth requirements which

must be fulfilled as a condition of program approval. The specifics of

these requirements are set forth below under the following headings:

General Requirements; Uses Subject to Management; Special Management

Areas; Boundaries; Authorities and Organization; and Coordination,

Public Involvement and National Interest. All relevant sections of the

Act are dealt with under one of these groupings, but not necessarily in

the order in which they appear in the Act.

(c) In summary, the requirements for program approval are that a

State develop a management program that:

(1) Identifies and evaluates those coastal resources recognized in

the Act as requiring management or protection by the State;

(2) Reexamines existing policies or develops new policies to manage

these resources. These policies must be specific, comprehensive, and

enforceable;

(3) Determines specific use and special geographic areas that are

to be subject to the management program, based on the nature of

identified coastal concerns;

(4) Identifies the inland and seaward areas subject to the

management program;

(5) Provides for the consideration of the national interest in the

planning for and siting of facilities that meet more than local

requirements;

(6) Includes sufficient legal authorities and organizational

arrangements to implement the program and to ensure conformance to it.

In arriving at these elements of the management program, States are

obliged to follow an open process which involves providing information

to and considering the interests of the general public, special

interest groups, local governments, and regional, State, interstate,

and Federal agencies;

(7) Provides for public participation in permitting processes,

consistency determinations, and other similar decisions;

(8) Provides a mechanism to ensure that all state agencies will

adhere to the program; and

(9) Contains enforceable policies and mechanisms to implement the

applicable requirements of the Coastal Nonpoint Pollution Control

Program of the state required by section 6217 of the Coastal Zone Act

Reauthorization Amendments of 1990.

Sec. 923.2 Definitions.

(a) The term Act means the Coastal Zone Management Act of 1972, as

amended.

(b) The term Secretary means the Secretary of Commerce and his/her

designee.

(c) The term Assistant Administrator means the Assistant

Administrator for Ocean Services and Coastal Zone Management, National

Oceanic and Atmospheric Administration (NOAA), or designee.

(d)(1) The term relevant Federal agencies means those Federal

agencies with programs, activities, projects, regulatory, financing, or

other assistance responsibilities in the following fields which could

impact or affect a State's coastal zone:

(i) Energy production or transmission,

(ii) Recreation of a more than local nature,

(iii) Transportation,

(iv) Production of food and fiber,

(v) Preservation of life and property,

(vi) National defense,

(vii) Historic, cultural, aesthetic, and conservation values,

(viii) Mineral resources and extraction, and

(ix) Pollution abatement and control.

(2) The following are defined as relevant Federal agencies:

Department of Agriculture; Department of Commerce; Department of

Defense; Department of Education; Department of Energy; Department of

Health and Human Services; Department of Housing and Urban Development;

Department of the Interior; Department of Transportation; Environmental

Protection Agency; Federal Energy Regulatory Commission; General

Services Administration, Nuclear Regulatory Commission; Federal

Emergency Management Agency.

(e) The term Federal agencies principally affected means the same

as ``relevant Federal agencies.'' The Assistant Administrator may

include other agencies for purposes of reviewing the management program

and environmental impact statement.

(f) The term Coastal State means a State of the United States in,

or bordering on, the Atlantic, Pacific, or Arctic Ocean, the Gulf of

Mexico, Long Island Sound, or one or more of the Great Lakes. Pursuant

to section 304(3) of the Act, the term also includes Puerto Rico, the

Virgin Islands, Guam, and American Samoa. Pursuant to section 703 of

the Covenant to Establish a Commonwealth of the Northern Mariana

Islands in Political Union with the United States of America, the term

also includes the Northern Marianas.

(g) The term management program includes, but is not limited to, a

comprehensive statement in words, maps, illustrations, or other media

of communication, including an articulation of enforceable policies and

citation of authorities providing this enforceability, prepared and

adopted by the State in accordance with the provisions of this Act and

this part, setting forth objectives, policies, and standards to guide

public and private uses of lands and waters in the coastal zone.

(h) The following terms, as used in these regulations, have the

same definition as provided in section 304 of the Act:

(1) Coastal zone;

(2) Coastal waters;

(3) Enforceable policy;

(4) Estuary;

(5) Land use; and

(6) Water use.

(i) The term grant means a financial assistance instrument and

refers to both grants and cooperative agreements.

Sec. 923.3 General requirements.

(a) The management program must be developed and adopted in

accordance with the requirements of the Act and this part, after

notice, and the opportunity for full participation by relevant Federal

and State agencies, local governments, regional organizations, port

authorities, and other interested parties and persons, and be adequate

to carry out the purposes of the Act and be consistent with the

national policy set forth in section 303 of the Act.

(b) The management program must provide for the management of those

land and water uses having a direct and significant impact on coastal

waters and those geographic areas which are likely to be affected by or

vulnerable to sea level rise. The program must include provisions to

assure the appropriate protection of those significant resources and

areas, such as wetlands, beaches and dunes, and barrier islands, that

make the State's coastal zone a unique, vulnerable, or valuable area.

(c) The management program must contain a broad class of policies

for each

[[Page 33806]]

of the following areas: resource protection, management of coastal

development, and simplification of governmental processes. These three

broad classes must include specific policies that provide the framework

for the exercise of various management techniques and authorities

governing coastal resources, uses, and areas. The three classes must

include policies that address uses of or impacts on wetlands and

floodplains within the State's coastal zone, and that minimize the

destruction, loss or degradation of wetlands and preserve and enhance

their natural values in accordance with the purposes of Executive Order

11990, pertaining to wetlands. These policies also must reduce risks of

flood loss, minimize the impact of floods on human safety, health and

welfare, and preserve the natural, beneficial values served by

floodplains, in accordance with the purposes of Executive Order 11988,

pertaining to floodplains.

(d) The policies in the program must be appropriate to the nature

and degree of management needed for uses, areas, and resources

identified as subject to the program.

(e) The policies, standards, objectives, criteria, and procedures

by which program decisions will be made must provide:

(1) A clear understanding of the content of the program, especially

in identifying who will be affected by the program and how, and

(2) A clear sense of direction and predictability for

decisionmakers who must take actions pursuant to or consistent with the

management program.

Subpart B--Uses Subject to Management

Sec. 923.10 General.

This subpart sets forth the requirements for management program

approvability with respect to land and water uses which, because of

their direct and significant impacts on coastal waters or those

geographic areas likely to be affected by or vulnerable to sea level

rise, are subject to the terms of the management program. This subpart

deals in full with the following subsections of the Act: 306(d)(1)(B),

Uses Subject to the Management Program, 306(d)(2)(H), Energy Facility

Planning, and 306(d)(12)(B), Uses of Regional Benefit.

Sec. 923.11 Uses subject to management.

(a) (1) The management program for each coastal state must include

a definition of what shall constitute permissible land uses and water

uses within the coastal zone which have a direct and significant impact

on the coastal waters.

(2) The management program must identify those land and water uses

that will be subject to the terms of the management program. These uses

shall be those with direct and significant impacts on coastal waters or

on geographic areas likely to be affected by or vulnerable to sea level

rise.

(3) The management program must explain how those uses identified

in paragraph (a)(2) of this section will be managed. The management

program must also contain those enforceable policies, legal

authorities, performance standards or other techniques or procedures

that will govern whether and how uses will be allowed, conditioned,

modified, encouraged or prohibited.

(b) In identifying uses and their appropriate management, a State

should analyze the quality, location, distribution and demand for the

natural and man-made resources of their coastal zone, and should

consider potential individual and cumulative impacts of uses on coastal

waters.

(c) States should utilize the following types of analyses:

(1) Capability and suitability of resources to support existing or

projected uses;

(2) Environmental impacts on coastal resources;

(3) Compatibility of various uses with adjacent uses or resources;

(4) Evaluation of inland and other location alternatives; and

(5) Water dependency of various uses and other social and economic

considerations.

(d) Examination of the following factors is suggested:

(1) Air and water quality;

(2) Historic, cultural and esthetic resources where coastal

development is likely to affect these resources;

(3) Open space or recreational uses of the shoreline where

increased access to the shorefront is a particularly important concern;

(4) Floral and faunal communities where loss of living marine

resources or threats to endangered or threatened coastal species are

particularly important concerns.

(5) Information on the impacts of global warming and resultant sea

level rise on natural resources such as beaches, dunes, estuaries, and

wetlands, on salinization of drinking water supplies, and on

properties, infrastructure and public works.

Sec. 923.12 Uses of regional benefit.

The management program must contain a method of assuring that local

land use and water use regulations within the coastal zone do not

unreasonably restrict or exclude land uses and water uses of regional

benefit. To this end, the management program must:

(a) Identify what constitutes uses of regional benefit; and

(5) Identify and utilize any one or a combination of methods,

consistent with the control techniques employed by the State, to assure

local land and water use regulations do not unreasonably restrict or

exclude uses of regional benefit.

Sec. 923.13 Energy facility planning process.

The management program must contain a planning process for energy

facilities likely to be located in or which may significantly affect,

the coastal zone, including a process for anticipating the management

of the impacts resulting from such facilities. (See subsection 304(5)

of the Act.) This process must contain the following elements:

(a) Identification of energy facilities which are likely to locate

in, or which may significantly affect, a State's coastal zone;

(5) Procedures for assessing the suitability of sites for such

facilities designed to evaluate, to the extent practicable, the costs

and benefits of proposed and alternative sites in terms of State and

national interests as well as local concerns;

(c) Articulation and identification of enforceable State policies,

authorities and techniques for managing energy facilities and their

impacts; and

(d) Identification of how interested and affected public and

private parties will be involved in the planning process.

Subpart C--Special Management Areas

Sec. 923.20 General.

(a) This subpart sets forth the requirements for management program

approvability with respect to areas of particular concern because of

their coastal-related values or characteristics, or because they may

face pressures which require detailed attention beyond the general

planning and regulatory system which is part of the management program.

As a result, these areas require special management attention within

the terms of the State's overall coastal program. This special

management may include regulatory or permit requirements applicable

only to the area of particular concern. It also may include increased

intergovernmental coordination, technical, assistance,

[[Page 33807]]

enhanced public expenditures, or additional public services and

maintenance to a designated area. This subpart deals with the following

subsections of the Act: 306(d)(2)(C)-Geographic Areas of Particular

Concern; 306(d)(2)(E)-Guidelines on Priorities of Uses; 306(d)(2)(G)-

Shorefront Access and protection Planning; 306(d)(2)(I)-Shoreline

Erosion/Mitigation Planning; and 306(d)(9)-Areas for Preservation and

Restoration.

(b) The importance of designating areas of particular concern for

management purposes and the number and type of areas that should be

designated is directly related to the degree of comprehensive controls

applied throughout a State's coastal zone. Where a State's general

coastal management policies and authorities address state and national

concerns comprehensively and are specific with respect to particular

resources and uses, relatively less emphasis need be placed on

designation of areas of particular concern. Where these policies are

limited and non-specific, greater emphasis should be placed on areas of

particular concern to assure effective management and an adequate

degree of program specificity.

Sec. 923.21 Areas of particular concern.

(a) The management program must include an inventory and

designation of areas of particular concern within the coastal zone, on

a generic and/or site-specific basis, and broad guidelines on

priorities of uses in particular areas, including specifically those

uses of lowest priority.

(b) In developing criteria for inventorying and designating areas

of particular concern. States must consider whether the following

represent areas of concern requiring special management:

(1) Areas of unique, scarce, fragile or vulnerable natural habitat;

unique or fragile, physical, figuration (as, for example, Niagara

Falls); historical significance, cultural value or scenic importance

(including resources on or determined to be eligible for the National

Register of Historic Places.);

(2) Areas of high natural productivity or essential habitat for

living resources, including fish, wildlife, and endangered species and

the various trophic levels in the food web critical to their well-

being;

(3) Areas of substantial recreational value and/or opportunity;

(4) Areas where developments and facilities are dependent upon the

utilization of, or access to, coastal waters;

(5) Areas of unique hydrologic, geologic or topographic

significance for industrial or commercial development or for dredge

spoil disposal;

(6) Areas or urban concentration where shoreline utilization and

water uses are highly competitive;

(7) Areas where, if development were permitted, it might be subject

to significant hazard due to storms, slides, floods, erosion,

settlement, salt water intrusion, and sea level rise;

(8) Areas needed to protect, maintain or replenish coastal lands or

resources including coastal flood plains, aquifers and their recharge

areas, estuaries, sand dunes, coral and other reefs, beaches, offshore

sand deposits and mangrove stands.

(c) Where states will involve local governments, other state

agencies, federal agencies and/or the public in the process of

designating areas of particular concern, States must provide guidelines

to those who will be involved in the designation process. These

guidelines shall contain the purposes, criteria, and procedures for

nominating areas of particular concern.

(d) In identifying areas of concern by location (if site specific)

or category of coastal resources (if generic), the program must contain

sufficient detail to enable affected landowners, governmental entities

and the public to determine with reasonable certainty whether a given

area is designated.

(e) In identifying areas of concern, the program must describe the

nature of the concern and the basis on which designations were made.

(f) The management program must describe how the management program

addresses and resolves the concerns for which areas are designated; and

(g) The management program must provide guidelines regarding

priorities of uses in these areas, including guidelines on uses of

lowest priority.

Sec. 923.22 Areas for preservation or restoration.

The management program must include procedures whereby specific

areas may be designated for the purpose of preserving or restoring them

for their conservation, recreational, ecological, historical or

esthetic values, and the criteria for such designations.

Sec. 923.23 Other areas of particular concern.

(a) The management program may, but is not required to, designate

specific areas known to require additional or special management, but

for which additional management techniques have not been developed or

necessary authorities have not been established at the time of program

approval. If a management program includes such designations, the basis

for designation must be clearly stated, and a reasonable time frame and

procedures must be set forth for developing and implementing

appropriate management techniques. These procedures must provide for

the development of those items required in Sec. 923.21. The management

program must identify an agency (or agencies) capable of formulating

the necessary management policies and techniques.

(b) The management program must meet the requirements of

Sec. 923.22 for containing procedures for designating areas for

preservation or restoration. The management program may include

procedures and criteria for designating areas of particular concern for

other than preservation or restoration purposes after program approval.

Sec. 923.24 Shorefront access and protection planning.

(a) The management program must include a definition of the term

``beach'' and a planning process for the protection of, and access to,

public beaches and other public coastal areas of environmental,

recreational, historical, esthetic, ecological or cultural value.

(b) The basic purpose in focusing special planning attention on

shorefront access and protection is to provide public beaches and other

public coastal areas of environmental, recreational, historic,

esthetic, ecological or cultural value with special management

attention within the purview of the State's management program. This

special management attention may be achieved by designating public

shorefront areas requiring additional access or protection as areas of

particular concern pursuant to Sec. 923.21 or areas for preservation or

restoration pursuant to Sec. 923.22.

(c) The management program must contain a procedure for assessing

public beaches and other public areas, including State owned lands,

tidelands and bottom lands, which require access or protection, and a

description of appropriate types of access and protection.

(d) The management program must contain a definition of the term

``beach'' that is the broadest definition allowable under state law or

constitutional provisions, and an identification of public areas

meeting that definition.

(e) The management program must contain an identification and

description of enforceable policies, legal authorities, funding program

and other techniques that will be used to provide such shorefront

access and protection that the State's planning process indicates is

necessary.

[[Page 33808]]

Sec. 923.25 Shoreline erosion/mitigation planning.

(a) The management program must include a planning process for

assessing the effects of, and studying and evaluating ways to control,

or lessen the impact of, shoreline erosion, including potential impacts

of sea level rise, and to restore areas adversely affected by such

erosion. this planning process may be within the broader context of

coastal hazard mitigation planning.

(b) The basic purpose in developing this planning process is to

give special attention to erosion issues. This special management

attention may be achieved by designating erosion areas as areas of

particular concern pursuant to Sec. 923.21 or as areas for preservation

or restoration pursuant to Sec. 923.22.

(c) The management program must include an identification and

description of enforceable policies, legal authorities, funding

techniques and other techniques that will be used to manage the effects

of erosion, including potential impacts of sea level rise, as the

state's planning process indicates is necessary.

Subpart D--Boundaries

Sec. 923.30 General.

This subpart sets forth the requirements for management program

approvability with respect to boundaries of the coastal zone. There are

four elements to a State's boundary: the inland boundary, the seaward

boundary, areas excluded from the boundary, and, in most cases,

interstate boundaries. Specific requirements with respect to procedures

for determining and identifying these boundary elements are discussed

in the sections of this subpart that follow.

Sec. 923.31 Inland boundary.

(a) The inland boundary of a State's coastal zone must include:

(1) Those areas the management of which is necessary to control

uses which have direct and significant impacts on coastal waters, or

are likely to be affected by or vulnerable to sea level rise, pursuant

to section 923.11 of these regulations.

(2) Those special management areas identified pursuant to

Sec. 923.21;

(3) Waters under saline influence-waters containing a significant

quantity of seawater, as defined by and uniformly applied by the State;

(4) Salt marshes and wetlands-Areas subject to regular inundation

of tidal salt (or Great Lakes) waters which contain marsh flora typical

of the region;

(5) Beaches-The area affected by wave action directly from the sea.

Examples are sandy beaches and rocky areas usually to the vegetation

line;

(6) Transitional and intertidal areas-Areas subject to coastal

storm surge, and areas containing vegetation that is salt tolerant and

survives because of conditions associated with proximity to coastal

waters. Transitional and intertidal areas also include dunes and rocky

shores to the point of upland vegetation;

(7) Islands-Bodies of land surrounded by water on all sides.

Islands must be included in their entirety, except when uses of

interior portions of islands do not cause direct and significant

impacts.

(8) The inland boundary must be presented in a manner that is clear

and exact enough to permit determination of whether property or an

activity is located within the management area. States must be able to

advise interested parties whether they are subject to the terms of the

management program within, at a maximum, 30 days of receipt of an

inquiry. An inland coastal zone boundary defined in terms of political

jurisdiction (e.g., county, township or municipal lines) cultural

features (e.g., highways, railroads), planning areas (e.g., regional

agency jurisdictions, census enumeration districts), or a uniform

setback line is acceptable so long as it includes the areas

indentified.

(b) The inland boundary of a State's coastal zone may include:

(1) Watersheds-A state may determine some uses within entire

watersheds which have direct and significant impact on coastal waters

or are likely to be affected by or vulnerable to sea level rise. In

such cases it may be appropriate to define the coastal zone as

including these watersheds.

(2) Areas of tidal influence that extend further inland than waters

under saline influence; particularly in estuaries, deltas and rivers

where uses inland could have direct and significant impacts on coastal

waters or areas that are likely to be affected by or vulnerable to sea

level rise.

(3) Indian lands not held in trust by the Federal Government.

(c) In many urban areas or where the shoreline has been modified

extensively, natural system relationships between land and water may be

extremely difficult, if not, impossible, to define in terms of direct

and significant impacts. Two activities that States should consider as

causing direct and significant impacts on coastal waters in urban areas

are sewage discharges and urban runoff. In addition, States should

consider dependency of uses on water access and visual relationships as

factors appropriate for the determination of the inland boundary in

highly urbanized areas.

Sec. 923.32 Lakeward or seaward boundary.

(a) (1) For states adjoining the Great Lakes, the lakeward boundary

of the State's coastal zone is the international boundary with Canada

or the boundaries with adjacent states. For states adjacent to the

Atlantic or Pacific Ocean, or the Gulf of Mexico, the seaward boundary

is the outer limit of state title and ownership under the Submerged

Lands Act (48 U.S.C. 1301 et seq.), the Act of March 2, 1917 (48 U.S.C.

749), the Covenant to Establish a Commonwealth of the Northern Mariana

Islands in Political Union with the United States of America, as

approved by the Act of March 24, 1976 (48 U.S.C. 1681 note) or section

1 of the Act of November 10, 1963, (48 U.S.C. 1705, as applicable).

(2) The requirement for defining the seaward boundary of a State's

coastal zone can be met by a simple restatement of the limits defined

in this section, unless there are water areas which require a more

exact delineation because of site specific policies associated with

these areas. Where States have site specific policies for particular

water areas, these shall be mapped, described or referenced so that

their location can be determined reasonably easily by any party

affected by the policies.

(b) The seaward limits, as defined in this section, are for

purposes of this program only and represent the area within which the

State's management program may be authorized and financed. These limits

are irrespective of any other claims States may have by virtue of other

laws.

Sec. 923.33 Excluded lands.

(a) The boundary of a State's coastal zone must exclude lands

owned, leased, held in trust or whose use is otherwise by law subject

solely to the discretion of the Federal Government, its officers or

agents. To meet this requirement, the program must describe, list or

map lands or types of lands owned, leased, held in trust or otherwise

used solely by Federal agencies.

(b) The exclusion of Federal lands does not remove Federal agencies

from the obligation of complying with the consistency provisions of

section 307 of the Act when Federal actions on these excluded lands

have spillover impacts that affect any land or water use or natural

resource of the coastal zone within the purview of a state's management

program. In excluding Federal lands from a State's coastal zone

[[Page 33809]]

for the purposes of this Act, a State does not impair any rights or

authorities that it may have over Federal lands that exist separate

from this program.

Sec. 923.34 Interstate boundary.

States must document that there has been consultation and

coordination with adjoining coastal States regarding delineation of any

adjacent inland and lateral seaward boundary.

Subpart E--Authorities and Organization

Sec. 923.40 General.

(a) This subpart sets forth the requirements for management program

approvability with respect to authorities and organization. The

authorities and organizational structure on which a State will rely to

administer its management program are the crucial underpinnings for

enforcing the policies which guide the management of the uses and areas

identified in its management program. There is a direct relationship

between the adequacy of authorities and the adequacy of the overall

program. The authorities need to be broad enough in both geographic

scope and subject matter to ensure implementation of the State's

enforceable policies. These enforceable policies must be sufficiently

comprehensive and specific to regulate land and water uses, control

development, and resolve conflicts among competing uses in order to

assure wise use of the coastal zone. (Issues relating to the adequate

scope of the program are dealt with in Sec. 923.3.)

(b) The entity or entities which will exercise the program's

authorities is a matter of State determination. They may be the state

agency designated pursuant to section 306(d)(6) of the Act, other state

agencies, regional or interstate bodies, and local governments. The

major approval criterion is a determination that such entity or

entities are required to exercise their authorities in conformance with

the policies of the management program. Accordingly, the essential

requirement is that the State demonstrate that there is a means of

ensuring such compliance. This demonstration will be in the context of

one or a combination of the three control techniques specified in

section 306(d)(11) of the Act. The requirements related to section

306(d)(12) of the Act are described in Sec. Sec. 923.42 through 923.44

of this subchapter.

(c) In determining the adequacy of the authorities and organization

of a state's programs, the Assistant Administrator will review and

evaluate authorities and organizational arrangements in light of the

requirements of this subpart and the finding of section 302(h) of the

Act.

(d) The authorities requirements of the Act dealt with in this

subpart are those contained in subsections 306(d)(2)(D)-Means of

Control; 306(d)(10)-Authorities; 306(d)(10)(A)-Control Development and

Resolve Conflicts; 306(d)(10)(B)-Powers of Acquisition; 306(d)(11)-

Techniques of Control; and 307(f)-Air and Water Quality Control

Requirements. The organization requirements of the Act dealt with in

this subpart are those contained in sections 306(d)(2)(F)-

Organizational Structure; 306(d)(6)-Designated State Agency; and

306(d)(7)-Organization.

Sec. 923.41 Identification of authorities.

(a) (1) The management program must identify the means by which the

state proposes to exert control over the permissible land uses and

water uses within the coastal zone which have a direct and significant

impact on the coastal waters, including a listing of relevant state

constitutional provisions, laws, regulations, and judicial decisions.

These are the means by which the state will enforce its coastal

management policies. (See section 304(6a) of the Act.)

(2) The state chosen agency or agencies (including local

governments, area-wide agencies, regional agencies, or interstate

agencies) must have the authority for the management of the coastal

zone. Such authority includes the following powers:

(i) To administer land use and water use regulations to control

development to ensure compliance with the management program, and to

resolve conflicts among competing uses; and

(ii) To acquire fee simple and less than fee simple interests in

land, waters, and other property through condemnation or other means

when necessary to achieve conformance with the management program.

(b) In order to meet these requirements, the program must identify

relevant state constitutional provisions, statutes, regulations, case

law and such other legal instruments (including executive orders and

interagency agreements) that will be used to carry out the state's

management program, including the authorities pursuant to sections

306(d)(10) and 306(d)(11) of the Act which require a state to have the

ability to:

(1) Administer land and water use regulations in conformance with

the policies of the management program;

(2) Control such development as is necessary to ensure compliance

with the management program;

(3) Resolve conflicts among competing uses; and

(4) Acquire appropriate interest in lands, waters or other property

as necessary to achieve management objectives. Where acquisition will

be a necessary technique for accomplishing particular program policies

and objectives, the management program must indicate for what purpose

acquisition will be used (i.e., what policies or objectives will be

accomplished); the type of acquisition (e.g., fee simple, purchase of

easements, condemnation); and what agency (or agencies) of government

have the authority for the specified type of acquisition.

Sec. 923.42 State establishment of criteria and standards for local

implementation-Technique A.

(a) The management program must provide for any one or a

combination of general techniques specified in subsection 306(d)(11) of

the Act for control of land uses and water uses within the coastal

zone. The first such control technique, at subsection 306(d)(11)(A) of

the Act, is state establishment of criteria and standards for local

implementation, subject to administrative review and enforcement

(control technique A).

(b) There are 5 principal requirements that control technique A

must embody in order to be approved:

(1) The State must have developed and have in effect at the time of

program approval enforceable policies that meet the requirements of

Sec. 923.3. These policies must serve as the standards and criteria for

local program development or the State must have separate standards and

criteria, related to these enforceable policies, that will guide local

program development.

(2) During the period while local programs are being developed, a

State must have sufficient authority to assure that land and water use

decisions subject to the management program will comply with the

program's enforceable policies. The adequacy of these authorities will

be judged on the same basis as specified for direct State controls or

case-by-case reviews.

(3) A State must be able to ensure that coastal programs will be

developed pursuant to the State's standards and criteria, or failing

this, that the management program can be implemented directly by the

State. This requirement can be met if a State can exercise any one of

the following techniques:

[[Page 33810]]

(i) Direct State enforcement of its standards and criteria in which

case a State would need to meet the requirements of this section which

address the direct State control technique;

(ii) Preparation of a local program by a State agency which the

local government then would implement. To use this technique the State

must have statutory authority to prepare and adopt a program for a

local government, and a mechanism by which the State can cause the

local government to enforce the State-created program. Where the

mechanism to assure local enforcement will be judicial relief, the

program must include the authority under which judicial relief can be

sought;

(iii) State preparation and enforcement of a program on behalf of a

local government. Here the State must have the authority to:

(A) Prepare and adopt a plan, regulations, and ordinances for the

local government and

(B) Enforce such plans, regulations and ordinances;

(iv) State review of local government actions on a case-by-case

basis or on appeal, and prevention of actions inconsistent with the

standards and criteria. Under this technique, when a local government

fails to adopt an approvable program, the State must have the ability

to review activities in the coastal zone subject to the management

program and the power to prohibit, modify or condition those activities

based on the policies, standards and criteria of the management

program; or

(v) If a locality fails to adopt a management program, the State

may utilize a procedure whereby the responsibility for preparing a

program shifts to an intermediate level government, such as a county.

If this intermediate level of government fails to produce a program,

then the State must have the ability to take one of the actions

described above. This alternative cannot be used where the intermediate

level of government lacks the legal authority to adopt and implement

regulations necessary to implement State policies, standards and

criteria.

(4) A State must have a procedure whereby it reviews and certifies

the local program's compliance with State standards and criteria. This

procedure must include provisions for:

(i) Opportunity for the public and governmental entities (including

Federal agencies) to participate in the development of local programs;

and

(ii) Opportunity for the public and governmental entities

(including Federal agencies) to make their views known (through public

hearings or other means) to the State agency prior to approval of local

programs; and

(iii) Review by the State of the adequacy of local programs

consideration of facilities identified in a State's management program

in which there is a national interest.

(5) A State must be able to assure implementation and enforcement

of a local program once approved. To accomplish this a State must:

(i) Establish a monitoring system which defines what constitutes

and detects patterns of non-compliance. In the case of uses of regional

benefit and facilities in which there is a national interest, the

monitoring system must be capable of detecting single instances of

local actions affecting such uses or facilities in a manner contrary to

the management program.

(ii) Be capable of assuring compliance when a pattern of deviation

is detected or when a facility involving identified national interests

or a use of regional benefit is affected in a manner contrary to the

program's policies. When State action is required because of failure by

a local government to enforce its program, the State must be able to do

one or a combination of the following:

(A) Directly enforce the entire local program;

(B) Directly enforce that portion of the local program that is

being enforced improperly. State intervention would be necessary only

in those local government activities that are violating the policies,

standards or criteria.

(C) Seek judicial relief against local government for failure to

properly enforce;

(D) Review local government actions on a case-by-case basis or on

appeal and have the power to prevent those actions inconsistent with

the policies and standards.

(E) Provide a procedure whereby the responsibility for enforcing a

program shifts to an intermediate level of government, assuming

statutory authority exists to enable the immediate of government to

assume this responsibility.

Sec. 923.43 Direct State land and water use planning and regulation-

Technique B.

(a) The management program must provide for any one or a

combination of general techniques specified in subsection 306(d)(11) of

the Act for control of land and water uses within the coastal zone. The

second such control technique, at subsection 306(d)(11)(B) of the Act,

is direct state land and water use planning and regulation (control

technique B).

(b) To have control technique B approved, the State must have the

requisite direct authority to plan and regulate land and water uses

subject to the management program. This authority can take the form of:

(1) Comprehensive legislation--A single piece of comprehensive

legislation specific to coastal management and the requirements of this

Act.

(2) Networking--The utilization of authorities which are compatible

with and applied on the basis of coastal management policies developed

pursuant to Sec. 923.3.

(c) In order to apply the networking concept, the State must:

(1) Demonstrate that, taken together, existing authorities can and

will be used to implement the full range of policies and management

techniques identified as necessary for coastal management purposes; and

(2) Bind each party which exercises statutory authority that is

part of the management program to conformance with relevant enforceable

policies and management techniques. Parties may be bound to conformance

through an executive order, administrative directive or a memorandum of

understanding provided that:

(i) The management program authorities provide grounds for taking

action to ensure compliance of networked agencies with the program. It

will be sufficient if any of the following can act to ensure

compliance: The state agency designated pursuant to subsection

306(d)(6) of the Act, the state's Attorney General, another state

agency, a local government, or a citizen.

(ii) The executive order, administrative directive or memorandum of

understanding establishes conformance requirements of other State

agency activities or authorities to management program policies. A

gubernatorial executive order will be acceptable if networked State

agency heads are directly responsible to the Governor.

(3) Where networked State agencies can enforce the management

program policies at the time of section 306 approval without first

having to revise their operating rules and regulations, then any

proposed revisions to such rules and regulations which would enhance or

facilitate implementation need not be accomplished prior to program

approval. Where State agencies cannot enforce coastal policies without

first revising their rules and regulations, then these revisions must

be made prior to approval of the State's program by the Assistant

Administrator.

[[Page 33811]]

Sec. 923.44 State review on a case-by-case basis of actions affecting

land and water uses subject to the management program-Technique C.

(a) The management program must provide for any one or a

combination of general techniques specified in subsection 306(d)(11) of

the Act for control of land and water uses within the coastal zone. The

third such control technique, at subsection 306(d)(11)(C) of the Act,

is state administrative review for consistency with the management

program of all development plans, projects, or land and water use

regulations, including exceptions and variances thereto, proposed by

any state or local authority or private developer, with power to

approve or disapprove after public notice and an opportunity for

hearings (control technique C).

(b) Under case-by-case review, States have the power to review

individual development plans, projects or land and water use

regulations (including variances and exceptions thereto) proposed by

any State or local authority or private developer which have been

identified in the management program as being subject to review for

consistency with the management program. This control technique

requires the greatest degree of policy specificity because compliance

with the program will not require any prior actions on the part of

anyone affected by the program. Specificity also is needed to avoid

challenges that decisions (made pursuant to the management program) are

unfounded, arbitrary or capricious.

(c) To have control technique C approved, a State must:

(1) Identify the plans, projects or regulations subject to review,

based on their significance in terms of impacts on coastal resources,

potential for incompatibility with the State's coastal management

program, and having greater than local significance;

(2) Identify the State agency that will conduct this review;

(3) Include the criteria by which identified plans, projects and

regulations will be approved or disapproved;

(4) Have the power to approve or disapprove identified plans,

projects or regulations that are inconsistent with the management

program, or the power to seek court review thereof; and

(5) Provide public notice of reviews and the opportunity for public

hearing prior to rendering a decision on each case-by-case review.

Sec. 923.45 Air and water pollution control requirements.

The program must incorporate, by reference or otherwise, all

requirements established by the Federal Water Pollution Control Act, as

amended (Clean Water Act or CWA), or the Clean Air Act, as amended

(CAA), or established by the Federal Government or by any state or

local government pursuant to such Acts. Such requirements must be the

water pollution control and air pollution control requirements

applicable to such program. Incorporation of the air and water quality

requirements pursuant to the CWA and CAA should involve their

consideration during program development, especially with respect to

use determinations and designation of areas for special management. In

addition, this incorporation will prove to be more meaningful if close

coordination and working relationships between the State agency and the

air and water quality agencies are developed and maintained throughout

the program development process and after program approval.

Sec. 923.46 Organizational structure.

The State must be organized to implement the management program.

The management program must describe the organizational structure that

will be used to implement and administer the management program

including a discussion of those state and other agencies, including

local governments, that will have responsibility for administering,

enforcing and/or monitoring those authorities or techniques required

pursuant to the following subsections of the Act: 306(d)(3)(B);

306(d)(10); 306(d)(10) (A) and (B); 306(d) (11) and (12); and 307(f).

The management program must also describe the relationship of these

administering agencies to the state agency designated pursuant to

subsection 306(d)(6) of the Act.

Sec. 923.47 Designated State agency.

(a) For program approval, the Governor of the state must designate

a single state agency to receive and administer the grants for

implementing the management program.

(1) This entity must have the fiscal and legal capability to accept

and administer grant funds, to make contracts or other arrangements

(such as passthrough grants) with participating agencies for the

purpose of carrying out specific management tasks and to account for

the expenditure of the implementation funds of any recipient of such

monies, and

(2) This entity must have the administrative capability to monitor

and evaluate the management of the State's coastal resources by the

various agencies and/or local governments with specified

responsibilities under the management program (irrespective of whether

such entities receive section 306 funds); to make periodic reports to

the Office of Ocean and Coastal Resource Management (OCRM), the

Governor, or the State legislature, as appropriate, regarding the

performance of all agencies involved in the program. The entity also

must be capable of presenting evidence of adherence to the management

program or justification for deviation as part of the review by OCRM of

State performance required by section 312 of the Act.

(b) (1) The 306 agency designation is designed to establish a

single point of accountability for prudent use of administrative funds

in the furtherance of the management and for monitoring of management

activities. Designation does not imply that this single agency need be

a ``super agency'' or the principal implementation vehicle. It is,

however, the focal point for proper administration and evaluation of

the State's program and the entity to which OCRM will look when

monitoring and reevaluating a State's program during program

implementation.

(2) The requirement for the single designated agency should not be

viewed as confining or otherwise limiting the role and responsibilities

which may be assigned to this agency. It is up to the State to decide

in what manner and to what extent the designated State agency will be

involved in actual program implementation or enforcement. In

determining the extent to which this agency should be involved in

program implementation or enforcement, specific factors should be

considered, such as the manner in which local and regional authorities

are involved in program implementation, the administrative structure of

the State, the authorities to be relied upon and the agencies

administering such authorities. Because the designated State agency may

be viewed as the best vehicle for increasing the unity and efficiency

of a management program, the State may want to consider the following

in selecting which agency to designate:

(i) Whether the designated State entity has a legislative mandate

to coordinate other State or local programs, plans and/or policies

within the coastal zone;

(ii) To what extent linkages already exist between the entity,

other agencies, and local governments;

(iii) To what extent management or regulatory authorities affecting

the coastal zone presently are administered by the agency; and

(iv) Whether the agency is equipped to handle monitoring,

evaluation and enforcement responsibilities.

[[Page 33812]]

Sec. 923.48 Documentation.

A transmittal letter signed by the Governor is required for the

submission of a management program for federal approval. The letter

must state that the Governor:

(a) Has reviewed and approved as State policy, the management

program, and any changes thereto, submitted for the approval of the

Assistant Administrator.

(b) Has designated a single State agency to receive and administer

implementation grants;

(c) Attests to the fact that the State has the authorities

necessary to implement the management program; and

(d) Attests to the fact that the State is organized to implement

the management program.

Subpart F--Coordination, Public Involvement and National Interest

Sec. 923.50 General.

(a) Coordination with governmental agencies having interests and

responsibilities affecting the coastal zone, and involvement of

interest groups as well as the general public is essential to the

development and administration of State coastal management programs.

The coordination requirements of this subpart are intended to achieve a

proper balancing of diverse interests in the coastal zone. The policies

of section 303 of the Act require that there be a balancing of variety,

sometimes conflicting, interests, including:

(1) The preservation, protection, development and, where possible,

the restoration or enhancement of coastal resources;

(2) The achievement of wise use of coastal land and water resources

with full consideration for ecological, cultural, historic, and

aesthetic values and needs for compatible economic development;

(3) The involvement of the public, of Federal, state and local

governments and of regional agencies in the development and

implementation of coastal management programs;

(4) The management of coastal development to improve, safeguard,

and restore coastal water quality; and

(5) The study and development of plans for addressing the adverse

effects of coastal hazards, including erosion, flooding, land

subsidence and sea level rise.

(b) In order to be meaningful, coordination with and participation

by various units and levels of government including regional

commissions, interest groups, and the general public should begin early

in the process of program development and should continue throughout on

a timely basis to assure that such efforts will result in substantive

inputs into a State's management program. State efforts should be

devoted not only to obtaining information necessary for developing the

management program but also to obtaining reactions and recommendations

regarding the content of the management program and to responding to

concerns by interested parties. The requirements for intergovernmental

cooperation and public participation continue after program approval.

(c) This subpart deals with requirements for coordination with

governmental entities, interest groups and the general public to assure

that their interests are fully expressed and considered during the

program development process and that procedures are created to insure

continued consideration of their views during program implementation.

In addition, this subpart deals with mediation procedures for serious

disagreements between States and Federal agencies that occur during

program development and implementation. This subpart addresses the

requirements of the following subsections of the Act: 306(d)(1)--

Opportunity for Full Participation; 306(d)(3)(A)--Plan Coordination;

306(d)(3)(B)--Continued State-Local Consultation; 306(d)(4)--Public

Hearings; 306(d)(8)--Consideration of the National Interest in

Facilities; 307(b)--Federal Consultation; and 307(h)--Mediation.

Sec. 923.51 Federal-State consultation.

(a) The management program must be developed and adopted with the

opportunity of full participation by relevant Federal agencies and with

adequate consideration of the views of Federal agencies principally

affected by such program.

(b) By providing relevant Federal agencies with the opportunity for

full participation during program development and for adequately

considering the views of such agencies, States can effectuate the

Federal consistency provisions of subsections 307 (c) and (d) of the

Act once their programs are approved. (See 15 CFR part 930 for a full

discussion of the Federal consistency provisions of the Act.)

(c) In addition to the consideration of relevant Federal agency

views required during program development, Federal agencies have the

opportunity to provide further comment during the program review and

approval process. (See subpart G for details on this process.)

Moreover, in the event of a serious disagreement between a relevant

Federal agency and designated State agency during program development

or during program implementation, the mediation provisions of

subsection 307(h) of the Act are available. (See Sec. 923.54 for

details on mediation.)

(d) In order to provide an opportunity for participation by

relevant Federal agencies and give adequate consideration to their

views, each state must:

(1) Contact each relevant Federal Agency listed in Sec. 923.2(d)

and such other Federal agencies as may be relevant, owing to a State's

particular circumstances, early in the development of its management

program. The purpose of such contact is to develop mutual arrangements

or understandings regarding that agency's participation during program

development;

(2) Provide for Federal agency input on a timely basis as the

program is developed. Such input shall be related both to information

required to develop the management program and to evaluation of and

recommendations concerning various elements of the management program;

(3) Solicit statements from the head of Federal agencies identified

in Table 1 of Sec. 923.52(c)(1) as to their interpretation of the

national interest in the planning for and siting of facilities which

are more than local in nature;

(4) Summarize the nature, frequency, and timing of contacts with

relevant Federal agencies;

(5) Evaluate Federal comments received during the program

development process and, where appropriate in the opinion of the State,

accommodate the substance of pertinent comments in the management

program. States must consider and evaluate relevant Federal agency

views or comments about the following:

(i) Management of coastal resources for preservation, conservation,

development, enhancement or restoration purposes;

(ii) Statements of the national interest in the planning for or

siting of facilities which are more than local in nature;

(iii) Uses which are subject to the management program;

(iv) Areas which are of particular concern to the management

program;

(v) Boundary determinations;

(vi) Shorefront access and protecting planning, energy facility

planning and erosion planning processes; and

(vii) Federally developed or assisted plans that must be

coordinated with the management program pursuant to subsection

306(d)(3) of the Act.

[[Page 33813]]

(6) Indicate the nature of major comments by Federal agencies

provided during program development (either by including copies of

comments or by summarizing comments) and discuss any major differences

or conflicts between the management program and Federal views that have

not been resolved at the time of program submission.

Sec. 923.52 Consideration of the national interest in facilities.

(a) The management program must provide for adequate consideration

of the national interest involved in planning for, and managing the

coastal zone, including the siting of facilities such as energy

facilities which are of greater than local significance. In the case of

energy facilities, the State must have considered any applicable

national or interstate energy plan or program.

(b) The primary purpose of this requirement is to assure adequate

consideration by States of the national interest involved in the

planning for and siting of facilities (which are necessary to meet

other than local requirements) during:

(1) The development of the State's management program,

(2) The review and approval of the program by the Assistant

Administrator, and

(3) The implementation of the program as such facilities are

proposed.

(c) In order to fulfill this requirement, States must:

(1) Describe the national interest in the planning for and siting

of facilities considered during program development.

(2) Indicate the sources relied upon for a description of the

national interest in the planning for and siting of the facilities.

(3) Indicate how and where the consideration of the national

interest is reflected in the substance of the management program. In

the case of energy facilities in which there is a national interest,

the program must indicate the consideration given any national or

interstate energy plans or programs which are applicable to or affect a

state's coastal zone.

(4) Describe the process for continued consideration of the

national interest in the planning for and siting of facilities during

program implementation, including a clear and detailed description of

the administrative procedures and decisions points where such interest

will be considered.

Sec. 923.53 Federal consistency procedures.

(a) A State must include in its management program submission, as

part of the body of the submission an appendix or an attachment, the

procedures it will use to implement the Federal consistency

requirements of subsections 307 (c) and (d) of the Act. At a minimum,

the following must be included:

(1) An indication of whether the state agency designated pursuant

to subsection 306(d)(6) of the Act or a single other agency will handle

consistency review (see 15 CFR 930.18);

(2) A list of Federal license and permit activities that will be

subject to review (see 15 CFR 930.53);

(3) For States anticipating coastal zone effects from Outer

Continental Shelf (OCS) activities, the license and permit list also

must include OCS plans which describe in detail Federal license and

permit activities (see 15 CFR 930.74); and

(4) The public notice procedures to be used for certifications

submitted for Federal License and permit activities and, where

appropriate, for OCS plans (see 15 CFR 930.61 through 930.62 and

930.78).

(b) Beyond the minimum requirements contained in paragraph (a) of

this section, States have the option of including:

(1) A list of Federal activities, including development projects,

which in the opinion of the State agency are likely to significantly

affect the coastal zone and thereby will require a Federal agency

consistency determination (see 15 CFR 930.35); and

(2) A description of the types of information and data necessary to

assess the consistency of Federal license and permit activities and,

where appropriate, those described in detail in OCS plans (see 15 CFR

930.56 and 930.75).

Sec. 923.54 Mediation.

(a) Section 307(h) of the Act provides for mediation of serious

disagreement between any Federal agency and a coastal state in the

development and implementation of a management program. In certain

cases, mediation by the Secretary, with the assistance of the Executive

Office of the President, may be an appropriate forum for conflict

resolution.

(b) State-Federal differences should be addressed initially by the

parties involved. Whenever a serious disagreement cannot be resolved

between the parties concerned, either party may request the informal

assistance of the Assistant Administrator in resolving the

disagreement. This request shall be in writing, stating the points of

disagreement and the reason therefore. A copy of the request shall be

sent to the other party to the disagreement.

(c) If a serious disagreement persists, the Secretary or other head

of a relevant Federal agency, or the Governor or the head of the state

agency designated by the Governor as administratively responsible for

program development (if a state still is receiving section 305 program

development grants) or for program implementation (if a state is

receiving section 306 program implementation grants) may notify the

Secretary in writing of the existence of a serious disagreement, and

may request that the Secretary seek to mediate the serious

disagreement. A copy of the written request must be sent to the agency

with which the requesting agency disagrees and to the Assistant

Administrator.

(d) Secretarial mediation efforts shall last only so long as the

parties agree to participate. The Secretary shall confer with the

Executive Office of the President, as necessary, during the mediation

process.

(e) Mediation shall terminate:

(1) At any time the parties agree to a resolution of the serious

disagreement,

(2) If one of the parties withdraws from mediation,

(3) In the event the parties fail to reach a resolution of the

serious disagreement within 15 days following Secretarial mediation

efforts, and the parties do not agree to extend mediation beyond that

period, or

(4) For other good cause.

(f) The availability of the mediation services provided in this

section is not intended expressly or implicitly to limit the parties'

use of alternate forums to resolve disputes. Specifically, judicial

review where otherwise available by law may be sought by any party to a

serious disagreement without first having exhausted the mediation

process provided herein.

Sec. 923.55 Full participation by State and local governments,

interested parties, and the general public.

The management program must be developed and adopted with the

opportunity of full participation by state agencies, local governments,

regional commissions and organizations, port authorities, and other

interested public and private parties. To meet this requirement, a

State must:

(a) Develop and make available general information regarding the

program design, its content and its status throughout program

development;

(b) Provide a listing, as comprehensive as possible, of all

governmental agencies, regional

[[Page 33814]]

organizations, port authorities and public and private organizations

likely to be affected by or to have a direct interest in the

development and implementation of the management program;

(c) Indicate the nature of major comments received from interested

or affected parties, identified in paragraph (b)(2) of this section,

and the nature of the State's response to these comments; and

(d) Hold public meetings, workshops, etc., during the course of

program development at accessible locations and convenient times, with

reasonable notice and availability of materials.

Sec. 923.56 Plan coordination.

(a) The management program must be coordinated with local,

areawide, and interstate plans applicable to areas within the coastal

zone--

(1) Existing on January 1 of the year in which the state's

management program is submitted to the Secretary; and

(2) Which have been developed by a local government, an areawide

agency, a regional agency, or an interstate agency.

(b) A State must insure that the contents of its management program

has been coordinated with local, areawide and interstate plans

applicable to areas within the coastal zone existing on January 1 of

the year in which the State's management program is submitted to the

Assistant Administrator for approval. To document this coordination,

the management program must:

(1) Identify local governments, areawide agencies and regional or

interstate agencies which have plans affecting the coastal zone in

effect on January 1 of the year in which the management program is

submitted;

(2) List or provide a summary of contacts with these entities for

the purpose of coordinating the management program with plans adopted

by a governmental entity as of January 1 of the year in which the

management program is submitted. At a minimum, the following plans,

affecting a State coastal zone, shall be reviewed: Land use plans

prepared pursuant to section 701 of the Housing and Urban Development

Act of 1968, as amended; State and areawide waste treatment facility or

management plans prepared pursuant to sections 201 and 208 of the Clean

Water Act, as amended; plans and designations made pursuant to the

National Flood Insurance Act of 1968, as amended, and the Flood

Disaster Protection Act of 1973, as amended; hazard mitigation plans

prepared pursuant to section 409 of the Robert T. Stafford Disaster

Relief and Emergency Assistance Act; any applicable interstate energy

plans or programs developed pursuant to section 309 of the Act;

regional and interstate highway plans; plans developed by Regional

Action Planning Commission; and fishery management plans developed

pursuant to the Fisheries Conservation and Management Act.

(3) Identify conflicts with those plans of a regulatory nature that

are unresolved at the time of program submission and the means that can

be used to resolve these conflicts.

Sec. 923.57 Continuing consultation.

(a) As required by subsection 306(d)(3)(B) of the Act, a State must

establish an effective mechanism for continuing consultation and

coordination between the management agency designated pursuant to

paragraph (6) of section 306(d) of the Act and with local governments,

interstate agencies, regional agencies, and areawide agencies within

the coastal zone to assure the full participation of those local

governments and agencies in carrying out the purposes of this Act.

(b) The management program must establish a procedure whereby local

governments with zoning authority are notified of State management

program decisions which would conflict with any local zoning ordinance

decision.

(1) ``Management program decision'' refers to any major,

discretionary policy decisions on the part of a management agency, such

as the determination of permissible land and water uses, the

designation of areas or particular concern or areas for preservation or

restoration, or the decision to acquire property for public uses.

Regulatory actions which are taken pursuant to these major decisions

are not subject to the State-local consultation mechanisms. A State

management program decision is in conflict with a local zoning

ordinance if the decision is contradictory to that ordinance. A State

management program decision that consists of additional but not

contradictory requirements is not in conflict with a local zoning

ordinance, decision or other action;

(2) ``Local government'' refers to these defined in section 304(11)

of the Act which have some form of zoning authority.

(3) ``Local zoning ordinance, decision or other action'' refers to

any local government land or water use action which regulates or

restricts the construction, alteration of use of land, water or

structures thereon or thereunder. These actions include zoning

ordinances, master plans and official maps. A local government has the

right to comment on a State management program decision when such

decision conflicts with the above specified actions;

(4) Notification must be in writing and must inform the local

government of its right to submit comments to the State management

agency in the event the proposed State management program decision

conflicts with a local zoning ordinance, decision or other action. The

effect of providing such notice is to stay State action to implement

its management decision for at least a 30-day period unless the local

government waives its right to comment.

(5) ``Waiver'' of the right of local government to comment (thereby

permitting a State agency to proceed immediately with implementation of

the management program decision) shall result:

(i) Following State agency receipt of a written statement from a

local government indicating that it either:

(A) Waives its right to comment; or

(B) Concurs with the management program decision; or

(C) Intends to take action which conflicts or interferes with the

management program decision; or

(ii) Following a public statement by a local government to the same

effect as paragraph (b)(5)(i) of this section; or

(iii) Following an action by a local government that conflicts or

interferes with the management program decision.

(6) The management program shall include procedures to be followed

by a management agency in considering a local government's comments.

These procedures shall include, at a minimum, circumstances under which

the agency will exercise its discretion to hold a public hearing. Where

public hearings will be held, the program must set forth notice and

other hearing procedures that will be followed. Following State agency

consideration of local comments (when a discretionary public hearing is

not held) or following public hearing, the management agency shall

provide a written response to the affected local government, affected

local government, within a reasonable period of time and prior to

implementation of the management program decision, on the results of

the agency's consideration of public comments.

Sec. 923.58 Public hearings.

The management program must be developed and adopted after the

holding of public hearings. A State must:

(a) Hold a minimum of two public hearings during the course of

program

[[Page 33815]]

development, at least one of which will be on the total scope of the

coastal management program. Hearings on the total management program do

not have to be held on the actual document submitted to the Assistant

Administrator for section 306 approval. However, such hearing(s) must

cover the substance and content of the proposed management program in

such a manner that the general public, and particularly affected

parties, have a reasonable opportunity to understand the impacts of the

management program. If the hearing(s) are not on the management

document per se, all requests for such document must be honored and

comments on the document received prior to submission of the document

to the Assistant Administrator must be considered;

(b) Provide a minimum of 30 days public notice of hearing dates and

locations;

(c) Make available for public review, at the time of public notice,

all agency materials pertinent to the hearings; and

(d) Include a transcript or summary of the public hearing(s) with

the State's program document or submit same within thirty (30) days

following submittal of the program to the Assistant Administrator. At

the same time this transcript or summary is submitted to the Assistant

Administrator, it must be made available, upon request, to the public.

Subpart G--Review/Approval Procedures

Sec. 923.60 Review/approval procedures.

(a) All state management program submissions must contain an

environmental assessment at the time of submission of the management

program to OCRM for threshold review. In accordance with regulations

implementing the National Environmental Policy Act of 1969, as amended,

OCRM will assist the State by outlining the types of information

required. (See 40 CFR Sec. 1506.5 (a) and (b).)

(b) Upon submission by a State of its draft management program,

OCRM will determine if it adequately meets the requirements of the Act

and this part. Assuming positive findings are made and major revisions

to the State's draft management program are not required, OCRM will

prepare draft and final environmental impact statements, in accordance

with National Environmental Policy Act requirements. Because the review

process involves preparation and dissemination of draft and final

environmental impact statements and lengthy Federal agency review;

states should anticipate that it will take at least 7 months between

the time a state first submits a draft management program to OCRM for

threshold review and the point at which the Assistant Administrator

makes a final decision on whether to approve the management program.

Certain factors will contribute to lengthening or shortening this time

table; these factors are discussed in OCRM guidance on the review/

approval process. The OCRM guidance also recommends a format for the

program document submitted to the Assistant Administrator for review

and approval.

Subpart H--Amendments to and Termination of Approved Management

Programs

Sec. 923.80 General.

(a) This subpart establishes the criteria and procedures by which

amendments, modifications or other changes to approved management

programs may be made. This subpart also establishes the conditions and

procedures by which administrative funding may be terminated for

programmatic reasons.

(b) Any coastal state may amend or modify a management program

which it has submitted and which has been approved by the Assistant

Administrator under this subsection, subject to the conditions provided

for subsection 306(e) of the Act.

(c) As required by subsection 312(d) of the Act, the Assistant

Administrator shall withdraw approval of the management program of any

coastal state and shall withdraw financial assistance available to that

state under this title as well as any unexpended portion of such

assistance, it the Assistant Administrator determines that the coastal

state has failed to take the actions referred to in subsection

312(c)(2)(A) of the Act.

(d) For purposes of this subpart, amendments are defined as

substantial changes in one or more of the following coastal management

program areas:

(1) Uses subject to management;

(2) Special management areas;

(3) Boundaries;

(4) Authorities and organization; and

(5) Coordination, public involvement and the national interest.

(e) OCRM will provide guidance on program changes. The five program

management areas identified in Sec. 923.80(d) are also discussed in

subpart B through F of this part.

Sec. 923.81 Requests for amendments.

(a) Requests for amendments shall be submitted to the Assistant

Administrator by the Governor of a coastal state with an approved

management program or by the head of the state agency (designated

pursuant to subsection 306(d)(6) of the Act) if the Governor had

delegated this responsibility and such delegation is part of the

approved management program. Whenever possible, requests should be

submitted prior to final State action to implement the amendment. At

least one public hearing must be held on the proposed amendment,

pursuant to subsection 306(d)(4) of the Act. Pursuant to section 311 of

the Act, notice of such public hearing(s) must be announced at least 30

days prior to the hearing date. At the time of the announcement,

relevant agency materials pertinent to the hearing must be made

available to the public.

(b) Amendment requests must contain the following:

(1) A description of the proposed change, including specific pages

and text of the management program that will be changed if the

amendment is approved by the Assistant Administrator. This description

shall also identify any enforceable policies to be added to the

management program;

(2) explanation of why the change is necessary and appropriate,

including a discussion of the following factors, as relevant; changes

in coastal zone needs, problems, issues, or priorities. This discussion

also shall identify which findings, if any made by the Assistant

Administrator in approving the management program may need to be

modified if the amendment is approved;

(3) A copy of public notice(s) announcing the public hearing(s) on

the proposed amendments;

(4) A summary of the hearing(s) comments:

(i) Where OCRM is providing Federal agency review concurrent with

the notice period for the State's public hearing, this summary of

hearing(s) comments may be submitted to the Assistant Administrator

within 60 days after the hearing;

(ii) Where hearing(s) summaries are submitted as a supplement to

the amendment request (as in the case described in paragraph (b)(1) of

this section), the Assistant Administrator will not take final action

to approve or disapprove an amendment request until the hearing(s)

summaries have been received and reviewed; and

(5) Documentation of opportunities provided relevant Federal,

State, regional and local agencies, port authorities and other

interested public and private parties to participate in the development

and approval at the State level of the proposed amendment.

[[Page 33816]]

Sec. 923.82 Amendment review/approval procedures.

(a) Upon submission by a State of its amendment request, OCRM will

review the request to determine preliminarily if the management

program, if changed according to the amendment request, still will

constitute an approvable program. In making this determination, OCRM

will determine whether the state has satisfied the applicable program

approvability criteria of subsection 306(d) of the Act.

(b) If the Assistant Administrator, as a preliminary matter,

determines that the management program, if changed, would no longer

constitute an approvable program, or if any of the procedural

requirements of section 306(d) of the Act have not been met, the

Assistant Administrator shall advise the state in writing of the

reasons why the amendment request cannot be considered.

(c) If the Assistant Administrator, as a preliminary matter,

determines that the management program, if changed, would still

constitute an approvable program and that the procedural requirements

of section 306(d) of the Act have been met, the Assistant Administrator

will then determine, pursuant to the National Environmental Policy Act

of 1969, as amended, whether an environmental impact statement (EIS) is

required.

Sec. 923.89 Mediation of amendments.

(a) Section 307(h)(2) of the Act provides for mediation of

``serious disagreements'' between a Federal agency and a coastal State

during administration of an approved management program. Accordingly

mediation is available to states or federal agencies when a serious

disagreement regarding a proposed amendment arises.

(b) Mediation may be requested by a Governor or head of a state

agency designated pursuant to subsection 306(d)(6) or by the head of a

relevant federal agency. Mediation is a voluntary process in which the

Secretary of Commerce attempts to mediate between disagreeing parties

over major problems. (See Sec. 923.54).

Sec. 923.84 Routine program changes.

(a) Further detailing of a State's program that is the result of

implementing provisions approved as part of a State's approved

management program, that does not result in the type of action

described in Sec. 923.80(d), will be considered a routine program

change. While a routine change is not subject to the amendment

procedures contained in Secs. 923.81 through 923.82, it is subject to

mediation provisions of Sec. 923.83.

(b) (1) States must notify OCRM of routine program change actions

in order that OCRM may review the action to ensure it does not

constitute an amendment. The state notification shall identify any

enforceable policies to be added to the management program, and explain

why the program change will not result in the type of action described

in Sec. 923.80(d).

(i) States have the option of notifying OCRM of routine changes on

a case-by-case basis, periodically throughout the year, or annually.

(ii) In determining when and how often to notify OCRM of such

actions, States should be aware that Federal consistency will apply

only after the notice required by paragraph (b)(4) of this section has

been provided.

(2) Concurrent with notifying OCRM, States must provide notice to

the general public and affected parties, including local governments,

other State agencies and regional offices of relevant federal agencies

of the notification given OCRM.

(i) This notice must:

(A) Describe the nature of the routine program change and identify

any enforceable policies to be added to the management program if the

State's request is approved;

(B) Indicate that the State considers it to be a routine program

change and has requested OCRM's concurrence in that determination; and

(C) Indicate that any comments on whether or not the action does or

does not constitute a routine program change may be submitted to OCRM

within 3 weeks of the date of issuance of the notice.

(ii) Where relevant Federal agencies do not maintain regional

offices, notice must be provided to the headquarters office.

(3) Within 4 weeks of receipt of notice from a State, OCRM will

inform the State whether it concurs that the action constitutes a

routine program change. Failure to notify a State in writing within 4

weeks of receipt of notice shall be considered concurrence.

(4) Where OCRM concurs, a State then must provide notice of this

fact to the general public and affected parties, including local

governments, other State agencies and relevant Federal agencies.

(i) This notice must:

(A) Indicate the date on which the State received concurrence from

OCRM that the action constitutes a routine program change;

(B) Reference the earlier notice (required in paragraph (b)(2) of

this section) for a description of the content of the action; and

(C) Indicate if Federal consistency applies as of the date of the

notice called for in this paragraph.

(ii) Federal consistency shall not be required until this notice

has been provided.

(5) Where OCRM does not concur, a State will be advised to:

(1) submit the action as an amendment, subject to the provisions of

Secs. 923.81 through 923.82; or

(ii) resubmit the routine program change with additional

information requested by OCRM concerning how the program will be

changed as a result of the action.

Subpart I--Applications for Program Development or Implementation

Grants

Sec. 923.90 General.

(a) The primary purpose of development grants made pursuant to

section 305 of the Act is to assist coastal States in the development

of comprehensive coastal management programs that can be approved by

the Assistant Administrator. The primary purpose of implementation

grants made pursuant to section 306 of the Act is to assist coastal

States in implementing coastal management programs following their

approval, including especially administrative actions to implement

enforceable program policies, authorities and other management

techniques. The purpose of the guidelines in this subpart is to define

the procedures by which grantees apply for and administer grants under

the Act. These guidelines shall be used and interpreted in conjunction

with applicable Federal laws and policies, Department of Commerce

grants management regulations, policies and procedures, and any other

applicable directives from the NOAA Grants Management Division and OCRM

program offices.

(b) Grants awarded to a State must be expended for the development

or administration, as appropriate, of a management program that meets

the requirements of the Act, and in accordance with the terms of the

award.

(c) All applications for funding under section 305 or 306 of the

Act, including proposed work programs, funding priorities and

allocations are subject to the discretion of the Assistant

Administrator.

(d) For purposes of this subpart, the term ``development grant''

means a grant awarded pursuant to subsection 305(a) of the Act.

``Administrative grant'' and ``implementation grant'' are

[[Page 33817]]

used interchangeably and mean grants awarded pursuant to subsection

306(a) of the Act.

(e) All application and preapplication forms are to be requested

from and submitted to: National Oceanic and Atmospheric Administration,

Office of Ocean and Coastal Resource Management, Coastal Programs

Division, 1305 East-West Highway (N/ORM3), Silver Spring, MD 20910.

Sec. 923.91 State responsibility.

(a) Applications for program grants are required to be submitted by

the Governor of a participating state or by the head of the state

entity designated by the Governor pursuant to subsection 306(d)(6) of

the Act.

(b) In the case of a section 305 grant, the application must

designate a single state agency or entity to receive development grants

and to be responsible for development of the State's coastal management

program. The designee need not be that entity designated by the

Governor pursuant to subsection 306(d)(6) of the Act as a single agency

to receive and administer implementation grants.

(c) One State application will cover all program activities for

which program development or implementation funds under this Act and

matching State funds are provided, irrespective of whether these

activities will be carried out by State agencies, areawide or regional

agencies, local governments, or interstate entities.

(d) The designated state entity shall be fiscally responsible for

all expenditures made under the grant, including expenditures by

subgrantees and contractors.

Sec. 923.92 Allocation.

(a) Subsections 303(4), 306(d)(3)(B) and 306(d)(10) of the Act

foster intergovernmental cooperation in that a state, in accordance

with its coastal zone management program, may allocate some of its

coastal zone management responsibilities to several agencies, including

local governments, areawide agencies, regional agencies and interstate

agencies. Such allocations provide for continuing consultation and more

effective participation and cooperation among state and local

governments, interstate, regional and areawide agencies.

(b) A State may allocate a portion or portions of its grant to

other State agencies, local governments, areawide or regional agencies,

interstate entities, or Indian tribes, if the work to result from such

allocation(s) will contribute to the effective development or

implementation of the State's management program.

(1) Local governments. Should a State desire to allocate a portion

of its grant to a local government, units of general-purpose local

government are preferred over special-purpose units of local

government. Where a State will be relying on direct State controls as

provided for in subsection 306(d)(11)(B) of the Act, pass-throughs to

local governments for local planning, regulatory or administrative

efforts under a section 306 grant cannot be made, unless they are

subject to adequate State overview and are part of the approved

management program. Where the approved management program provides for

other specified local activities or one-time projects, again subject to

adequate State overview, then a portion of administrative grant funds

may be allocated to local governments.

(2) Indian Tribes. Tribal participation in coastal management

efforts may be supported and encouraged through a State's program.

Individual tribes or groups of tribes may be considered regional

agencies and may be allocated a portion of a State's grant for the

development of independent tribal coastal management programs or the

implementation of specific management projects provided that:

(i) The State certifies that such tribal programs or projects are

compatible with its approved coastal management policies; and

(ii) On excluded tribal lands, the State demonstrates that the

tribal program or project would or could directly affect the State's

coastal zone.

Sec. 923.93 Eligible implementation costs.

(a) Costs claimed must be beneficial and necessary to the

objectives of the grant project. As used herein the terms cost and

grant project pertain to both the Federal and the matching share.

Allowability of costs will be determined in accordance with the

provisions of OMB Circular A-87: Cost Principles for State, Local and

Indian Tribal Governments.

(b) Federal funds awarded pursuant to section 306 of the Act may

not be used for land acquisition purposes and may not be used for

construction purposes. These costs may be eligible, however, pursuant

to section 306A of the Act.

(c) The primary purpose for which implementation funds, pursuant to

section 306 of the Act, are to be used is to assure effective

implementation and administration of the management program, including

especially administrative actions to implement enforceable program

policies, authorities and other management techniques. Implementation

activities should focus on achieving the policies of the Act.

(d) Section 306 funding in support of any of these purposes may be

used to fund, among other things:

(1) Personnel costs,

(2) Supplies and overhead,

(3) Equipment, and

(4) Feasibility studies and preliminary engineering reports.

(e) States are encouraged to coordinate administrative funding

requests with funding possibilities pursuant to sections 306A, 308,

309, 310 and 315 of the Act, as well as with funding possibilities

pursuant to section 6217 of the Coastal Zone Act Reauthorization

Amendments of 1990. When in doubt as to the appropriate section of the

Act under which to request funding, States should consult with OCRM.

States should consult with OCRM on technical aspects of consolidating

requests into a single application.

Sec. 923.94 Application for program development or implementation

grants.

(a) OMB Standard Form 424 (4-92) and the NOAA Application Kit for

Federal Assistance constitute the formal application. An original and

two (2) copies must be submitted 45 days prior to the desired grant

beginning date. The application must be accompanied by evidence of

compliance with E.O. 12372 requirements including the resolution of any

problems raised by the proposed project. The administrative

requirements for grants and subawards, under this program, to state,

local and Indian tribal governments are set out in 15 CFR Part 24. The

administrative requirements for other entities are prescribed under OMB

Circular A-110: Administrative Requirements for Grants and Agreements

with Institutions of Higher Education, Hospitals and Other Non-Profit

Organizations.

(b) Costs claimed as charges to the grant project must be

beneficial and necessary to the objectives of the grant project. As

used herein, the terms ``cost'' and ``grant project'' pertain to both

the Federal amount awarded and the non-federal matching share.

Allowability of costs will be determined in accordance with the

provisions of OMB Circular A-87: Cost Principles for State, Local and

Indian Tribal Governments. Eligible implementation costs also shall be

determined in accordance with Sec. 923.93 of these regulations.

Allowability of costs for non-profit organizations will be determined

in accordance with OMB Circular A-122: Cost Principles for Non-Profit

Organizations. Allowability of

[[Page 33818]]

costs for institutions of higher education will be determined in

accordance with OMB Circular A-21: Cost Principles for Educational

Institutions.

(c) In the grant application, the applicant must describe clearly

and briefly the activities that will be undertaken with grant funds in

support of implementation and administration of the management program.

This description must include:

(1) An identification of those elements of the approved management

program that are to be supported in whole or in part by the Federal and

the matching share,

(2) A clear statement of the major tasks required to implement each

element,

(3) For each task the application must:

(i) Specify how it will be accomplished and by whom;

(ii) Identify any sub-awardees (other State agencies, local

governments, individuals, etc.) that will be allocated responsibility

for carrying out all or portions of the task, and indicate the

estimated cost of the sub-awards for each allocation; and

(iii) Indicate the estimated total cost.

(4) The sum of all task costs in paragraph (c)(3) of this section

should equal the total estimated grant project cost.

(d) For program development grants, when evaluating whether a State

is making satisfactory progress toward completion of an approvable

management program which is necessary to establish eligibility for

subsequent grants, the Assistant Administrator will consider:

(1) The progress made toward meeting management program goals and

objectives;

(2) The progress demonstrated in completing the past year's work

program;

(3) The cumulative progress toward meeting the requirements for

preliminary or final approval of a coastal management program;

(4) The applicability of the proposed work program to fulfillment

of the requirements for final approval; and

(5) The effectiveness of mechanisms for insuring public

participation and consultation with affected Federal, State, regional

and local agencies in program development.

Sec. 923.95 Approval of applications.

(a) The application for a grant by any coastal State which complies

with the policies and requirements of the Act and these guidelines

shall be approved by the NOAA Grants Officer, upon recommendation by

the Assistant Administrator, assuming available funding.

(b) Should an application be found deficient, the Assistant

Administrator will notify the applicant in detail of any deficiency

when an application fails to conform to the requirements of the Act or

these regulations. Conferences may be held on these matters.

Corrections or adjustments to the application will provide the basis

for resubmittal of the application for further consideration and

review.

(c) The NOAA Grants Officer, upon recommendation by the Assistant

Administrator, may waive appropriate administrative requirements

contained in this subpart, upon finding of extenuating circumstances

relating to applications for assistance.

Sec. 923.96 Grant amendments.

(a) Actions that require an amendment to a grant award such as a

request for additional Federal funds, changes in the amount of the non-

Federal share, changes in the approved project budget as specified in

15 CFR Part 24, or extension of the grant period must be submitted to

the Assistant Administrator and approved in writing by the NOAA Grants

Officer prior to initiation of the contemplated change. Such requests

should be submitted at least 30 days prior to the proposed effective

date of the change and, if appropriate, accompanied by evidence of

compliance with E.O. 12372 requirements.

(b) NOAA shall acknowledge receipt of the grantee's request within

the ten (10) working days of receipt of the correspondence. This

notification shall indicate NOAA's decision regarding the request; or

indicate a time-frame within which a decision will be made.

PART 926--[REMOVED]

5. Part 926 which is currently reserved is removed.

PART 927--[REDESIGNATED AS PART 923, SUBPART J]

6. Part 927, consisting of Sec. 927.1, is redesignated as Subpart J

of Part 923, consisting of Sec. 923.110.

PART 928--[REDESIGNATED AS PART 923, SUBPART L]

7. Part 928 is redesignated as Subpart L of Part 923, and

Secs. 928.1 through 928.5 are redesignated as Secs. 923.131 through

923.135 in the Subpart.

Sec. 923.131 [Amended]

8. Redesignated Sec. 923.131 is amended by replacing the two

references to ``This part'' in the introductory text with references to

``This subpart.''

Sec. 923.133 [Amended]

9. Redesignated Sec. 923.133 is amended by changing the references

to 15 CFR 928.3 and 928.4 in paragraph (b)(9), the reference to

Sec. 928.3(d) in paragraph (c)(2), and the reference to

Sec. 928.3(c)(4) in paragraph (d)(2), as references to Secs. 923.133

and 923.134, Sec. 923.132(d) and Sec. 923.133(c)(4), respectively.

Sec. 923.134 [Amended]

10. Redesignated Sec. 923.134 is amended by changing the reference

to 15 CFR 928.3(b)(7) in paragraph (b)(3) as a reference to

Sec. 923.133(b)(7).

Sec. 923.135 [Amended]

11. Redesignated Sec. 923.135 is amended as follows:

(1) by changing the reference to 15 CFR 928.5(a)(3) in paragraph

(a)(2)(i) as a reference to Sec. 923.135(a)(3),

(2) by changing the reference to 15 CFR 928.4 in paragraph

(a)(2)(ii) as a reference to Sec. 923.134,

(3) by changing the reference to 15 CFR 923.81(c) in paragraph

(a)(3)(i)(G) as a reference to 15 CFR 923.81(a), and

(4) by changing the four references to 15 CFR 928.5(a)(2) in

paragraphs (b)(2) (i) and (iii) as references to Sec. 923.135(a)(2).

PART 932--[REDESIGNATED AS PART 923, SUBPART K]

12. Part 932 is redesignated as Subpart K of Part 923, and

Secs. 932.1 through 932.8 are redesignated as Secs. 923.121 through

923.128 in the Subpart.

13. Redesignated Sec. 923.121 is amended by revising paragraph (h)

to read as follows:

Sec. 923.121 General

* * * * *

(h) All application forms are to be requested from and submitted

to: National Oceanic and Atmospheric Administration, Office of Ocean

and Coastal Resources Management, Coastal Programs Division, 1305 East-

West Highway (N/ORM3), Silver Spring, MD 20910.

14. Redesignated Sec. 923.121 is further amended as follows:

(1) by changing the references to ``this part'' in paragraphs (a)

and (b) with references to ``this subpart'', and

(2) by changing the reference to 15 CFR 932.8 in paragraph (b)(1)

as a reference to Sec. 923.128.

Sec. 923.123 [Amended]

15. Redesignated Sec. 923.123 is amended as follows:

(1) in paragraph (a), by replacing ``routine program

implementation'' with ``routine program change'',

[[Page 33819]]

(2) in the footnote in paragraph (b), the address is revised to

read: ``Office of Ocean and Coastal Resource Management, Coastal

Programs Division, 1305 East-West Highway (N/ORM3), Silver Spring, MD

20910'', and

(3) by changing the reference to 15 CFR 932.5(a) in paragraph (d)

and the reference to 15 CFR 932.5(b) in paragraph (e), as references to

Secs. 923.125(a) and 923.125(b), respectively.

Sec. 923.124 [Amended]

16. Redesignated Sec. 923.124 is amended as follows:

(1) by changing the reference to 15 CFR 932.1(b) and 15 CFR

927.1(c) in paragraph (d)(1)(i) as references to Sec. 0923.121(b) and

923.110(c), respectively,

(2) by changing the reference to 15 CFR 932.4(d) in paragraph

(d)(1)(iii) as a reference to Sec. 923.124(d),

(3) by changing the reference to 15 CFR 932.8 in paragraph (d)(3)

as a reference to Sec. 923.128,

(4) by changing the references to 15 CFR 932.4(d), 15 CFR 932.3(d)

and 15 CFR 932.5(b) in paragraph (e) as references to Secs. 923.124(d),

923.123(d), and 923.125(b), respectively, and

(5) by changing the references to 15 CFR 932.4(b), 15 CFR 932.4(c),

15 CFR 932.4(d) and 15 CFR 932.4(e) in paragraph (f) as references to

Secs. 923.124(b), 923.124(c), 923.124(d) and 923.124(e), respectively.

Sec. 923.125 [Amended]

17. Redesignated Sec. 923.125 is amended as follows:

(1) by changing the reference to 15 CFR 932.6(b)(1) in paragraph

(a)(1)(v) as a reference to Sec. 923.126(b)(1),

(2) by changing the reference to 15 CFR 932.3(e) in paragraph

(b)(2)(ii) as a reference to Sec. 923.123(e),

(3) by changing the reference to 15 CFR 932.3(f) in paragraph

(b)(2)(iii) as a reference to Sec. 923.123(f), and

(4) by changing the references to Sec. 932.5(a) and 15 CFR 932.5(b)

in paragraph (c) as references to Secs. 923.125(a) and 923.125(b),

respectively.

18. Redesignated Sec. 923.125 is further amended by removing

footnote two in paragraph (a)(1)(ii).

Sec. 923.126 [Amended]

19. Redesignated Sec. 923.126 is amended as follows:

(1) by changing the references to 15 CFR 932.6(b) and 15 CFR

932.1(b) in paragraph (a) as references to Sec. 923.126(b) and

923.121(b), respectively,

(2) by changing the reference to 15 CFR 923.95(d)(3)(ii) in

paragraph (b)(1)(iii) as a reference to Sec. 923.94(d)(3)(ii),

(3) by changing the references to 15 CFR 932.5(a) and 15 CFR

932.5(b) in paragraph (b)(4) as references to Sec. 923.125(a) and

923.125(b), respectively,

(4) by changing the reference to 15 CFR 932.3(a) in paragraph

(b)(7) as a reference to Sec. 923.123(a),

(5) by changing the references to 15 CFR 932.5(a) and 15 CFR

932.4(d) in paragraph (b)(8) as references to Secs. 923.125(a) and

923.124(d), respectively,

(6) by changing the references to 15 CFR 932.5(a) and 15 CFR

932.5(b) in paragraph (c)(3) as references to Sec. 923.125(a) and

923.125(b), respectively,

(7) by changing the references to 15 CFR 932.5(a) and 15 CFR

932.4(d) in paragraph (c)(4) as references to Secs. 923.125(a) and

923.124(d), respectively, and

(8) by changing the reference to subpart J of 15 CFR part 923 in

paragraph (c)(5) as a reference to subpart I of 15 CFR part 923.

Sec. 923.127 [Amended]

20. Redesignated Sec. 923.127 is amended as follows:

(1) by changing the reference to subpart J of 15 CFR part 923 in

paragraph (a) as a reference to subpart I of 15 CFR part 923,

(2) by changing the reference to 15 CFR 932.6(b)(1) in paragraph

(b) as a reference to Sec. 923.126(b)(1),

(3) by changing the reference to subpart J of 15 CFR part 923 in

paragraph (c) as a reference to subpart I of 15 CFR part 923, and

(4) by changing the reference to 15 CFR 932.6(c)(2) in paragraph

(e) as a reference to Sec. 923.126(c)(2).

PART 933--COASTAL ZONE MANAGEMENT RESEARCH AND TECHNICAL ASSISTANCE

[Removed]

21. Part 933 is removed.

* * * * *

[FR Doc. 96-16402 Filed 6-27-96; 8:45 am]

BILLING CODE 3510-08-M