CFR Subpart H

CFR Subpart H
in effect

15 C.F.R. § 923.80 General.

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

15 C.F.R. § 923.81 Program change procedures, deadlines, public notice and comment, and application of approved changes.

(a) Pursuant to section 306(d)(6) of the Act and § 930.11(o) of this subchapter, all program changes shall be submitted to NOAA by: The Governor of a coastal state with an approved management program; the head of the single state agency designated under the management program to be the lead state agency for administering the CZMA; or the head of an office within the designated single state agency if the state has authorized that person to submit program changes. Program changes may be submitted to NOAA on a cyclical basis (e.g., quarterly, twice a year, annually) or as the changes occur. (1) One (1) copy shall be submitted electronically using the Program Change Form on NOAA's Program Change website, http://coast.noaa.gov/czmprogramchange. (i) If a state is not able to electronically send all or part of a program change to NOAA through NOAA's Program Change website, the state and NOAA shall agree to an alternative method (e.g., email, electronic CD, or a state website). In such instances, NOAA will, to the extent practicable, post the program change to NOAA's Program Change website. (ii) [Reserved] (2) All deadlines and timeframes under this subpart shall start on the first full business day after the day NOAA receives a program change (Day 1). For example, if a submission is received on a Thursday, day one of NOAA's review period would be Friday; if the day of receipt is Friday and Monday is a Federal holiday, Day 1 would be Tuesday. All days, starting with Day 1, are included in the calculation of total time for a deadline, including weekends and Federal holidays, except for the last day (e.g., Day 30 or Day 120). The day that NOAA's decision is due shall also end on a full business day. For example, if Day 30 is a Saturday, then NOAA's decision will be due the next Monday, or if Monday is a Federal holiday, on Tuesday. A state may request that NOAA's review period begin on a specified date following receipt by NOAA. (b) Within 5 days of receipt of a program change submission, NOAA shall notify the state (via email or letter) of the date the program change was received and NOAA's expected decision deadline. NOAA will also notify the state within 10 days of receipt of a program change submission if NOAA determines the submission is incomplete. If NOAA determines a submission is incomplete, NOAA shall inform the state that the program change review timeline shall not start until the missing information is submitted. During NOAA's review of a program change request, NOAA may request additional information that NOAA needs to make its decision. (c) NOAA's program change review period shall start on Day 1 pursuant to paragraph (a)(2) of this section, unless NOAA determines the submission is incomplete pursuant to paragraph (b) of this section. NOAA shall respond to the state (via email or letter) within 30 calendar days after the date NOAA receives a program change. NOAA's approval is presumed if NOAA does not respond or extend its review period within the 30-day period. NOAA may extend its review period up to 120 days after receipt of a program change request, if NOAA so notifies the state during the 30-day period. NOAA can extend beyond 120 days only as necessary to meet the requirements of the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.). NOAA shall inform the state via email or letter whether NOAA approves, approves in part, approves with qualifications or denies the incorporation of the program change into the state's management program. (d) States shall, to the extent practicable, consult with NOAA prior to state adoption of new or revised state laws, policies, regulations, and other changes the state intends to submit to NOAA as a program change. States are encouraged to submit draft program changes to NOAA for informal review and comment prior to submitting a program change. If consulted, NOAA shall review draft submissions to identify issues that would need to be addressed in the formal submission. (e)(1) A state shall post a public notice of its program change on the state's management program website in a conspicuous manner, and email or mail the public notice to local and regional offices of relevant Federal agencies, Federal agency CZMA headquarter contacts identified on NOAA's Federal consistency website, affected local governments and state agencies, and to individuals requesting direct notice. To meet the requirement for direct public notice (via email or mail), states are encouraged to maintain a coastal management listserv or mailing list. In addition to posting the public notice on the state's website and notifying the parties described above, states may, but are not required to, publish the notice in any state bulletin or newspaper. The timing of the state's public notice. States will draft a public notice of a submission, which shall be included as part of the contents of the program change submission form. When NOAA posts the program change submission on its Program Change website, NOAA will notify the state management program via email. The state will then post its public notice on the state web page providing a link to the submission on NOAA's Program Change website. The state shall send the public notice and link to the state and local agencies, Federal agency contacts, and others who have requested the state's public notice. Day 1 for NOAA review purposes will be the first business day after the state submits to NOAA the program change request. However, the 21-day comment period shall not start until the state posts its public notice on the state web page. If a state fails to post its public notice, then NOAA may either determine the program change submission is not complete and the review period has not started or deny the program change request. (2) A state's public notice shall: (i) Describe the changes to the management program; (ii) If applicable, identify any new, modified or deleted enforceable policies of the management program; (iii) Indicate that any comments on the incorporation of the program change into the state's management program shall be submitted to NOAA through NOAA's Program Change website within 21 calendar days of the date of the state's public notice; and (3) NOAA shall post all program changes on its Program Change website where any interested party may review or download materials. NOAA shall also post on its Program Change website deadlines, extensions and any comments received. For each program change posted on NOAA's website, NOAA shall notify the Federal agency CZMA headquarter contacts (identified on NOAA's Federal consistency website) via email. In addition, any party may request through the Program Change website that NOAA notify them via email when program changes are submitted by one or more state(s). NOAA's email shall also state that any party may, through NOAA's Program Change website, submit comments to NOAA on a state's request to incorporate a program change into the state's management program within 21 calendar days from the date of the state's public notice. NOAA shall only consider public and Federal agency comments for program change requests that are pending for a NOAA decision; no comments shall be accepted or considered for program changes once NOAA issues its decision. If a state, during or after the public comment period, submits directly to NOAA a response to a comment before NOAA issues a decision, NOAA shall consider the state's response and post the state's response on the Program Change website. (4) NOAA may, at its discretion, extend the public comment period or hold a public hearing. NOAA shall only consider holding a public hearing for a program change that would substantially change a management program and/or be controversial. (5) NOAA shall post its program change decisions on its CZMA Program Change website and shall notify, by email, Federal agency CZMA headquarter contacts and individuals requesting such notice. A state shall post NOAA's decision regarding a state's program change on the state agency's website. (f) Application of approved program changes for Federal consistency purposes under section 307 of the Act (16 U.S.C. 1456) and part 930 of this subchapter. The effective date for the approved changes will be the date on NOAA's approval letter. NOAA will post its program change decision letters on its Program Change website. Changes to a state's management program and enforceable policies shall apply for Federal consistency purposes to Federal actions proposed on or after the date NOAA approves the changes. Approved program changes shall not apply retroactively to state Federal consistency reviews under 15 CFR part 930 initiated prior to the date NOAA approved the changes, except as allowed by part 930 (e.g., a Federal action was finalized or authorized and there is a substantial change, amendment or renewal proposed for the Federal action on or after the date of NOAA's approval of a program change, pursuant to the applicable subpart of part 930).

15 C.F.R. § 923.82 Program change submissions.

(a) As required by CZMA section 306(e)(3)(A), coastal states may not implement a change as part of its approved management program unless the change is approved by NOAA. In accordance with §§ 923.81 and 923.83, states shall submit program changes to NOAA for approval using the Program Change Form on NOAA's Program Change website. (b) All state program changes shall identify the program approval area(s) that apply to the program change. The five program approval areas are: Uses Subject to Management (subpart B of this part); Special Management Areas (subpart C of this part); Boundaries (subpart D of this part); Authorities and Organization (subpart E of this part); and Coordination, Public Involvement and National Interest (subpart F of this part). (c) Program changes that are editorial, non-substantive, or minor in scope. The types of program changes in paragraphs (c)(1) through (4) of this section shall be approved by NOAA and need less review as long as they satisfy the decision criteria in § 923.84 and do not raise issues under any Federal laws, as described in § 923.85: (1) Editorial or non-substantive changes (e.g., citation changes, minor technical changes, or changes to state agency name) to state laws, regulations, enforceable policies, local government coastal management programs, special area management plans, and other authorities; (2) Changes that do not change a state's coastal zone boundary or geographic location description(s), and are not otherwise used by the state for Federal consistency review; (3) Changes to the organization of a state's management program if the management program's structure and responsibilities will remain intact; and (4) Changes to enforceable policies previously approved by NOAA that make minor substantive revisions consistent with the scope and application of the previously approved enforceable policy. If the proposed changes are not consistent with the scope and application of the previously approved enforceable policy, then NOAA shall more closely review the changes under paragraph (d) of this section to ensure they satisfy the decision criteria. (d) Any program change that is not described in paragraph (c) of this section shall be reviewed by NOAA to ensure the state's management program will remain approvable if the proposed program change is approved. These changes include: (1) Changes to the five program approval areas, including: Uses Subject to Management (subpart B of this part); Special Management Areas (subpart C of this part); Boundaries (subpart D of this part); Authorities and Organization (subpart E of this part); and Coordination, Public Involvement and National Interest (subpart F of this part); (2) Changes to enforceable policies, including modifications, additions and deletions; (3) Changes to provisions that are not enforceable policies, but which a state may use to evaluate the scope or applicability of an enforceable policy (e.g., definitions, advisory statements); (4) Changes to local government coastal management programs or plans if those local programs or plans contain enforceable policies that the state uses for Federal consistency review. States are not required to submit program changes for local government coastal management programs or plans that do not contain enforceable policies for Federal consistency review; (5) Changes or additions to the state's Federal consistency list or geographic location descriptions (part 930 of this subchapter); and (6) Changes or additions to Necessary Data and Information (§ 930.58 of this subchapter). (e) Changes to state Clean Air Act (CAA) and Clean Water Act (CWA) Pollution Control Requirements. Pursuant to section 307(f) of the Act, requirements established by the CWA (33 U.S.C. 1251-1387) and the CAA (42 U.S.C. 7401-7671), or established by the Federal Government or by any state or local government pursuant to the CWA and CAA shall be incorporated in state management programs and shall be the water pollution control and air pollution control requirements applicable to such management program. Therefore, states are not required to submit as program changes any changes to state CAA and CWA provisions.

15 C.F.R. § 923.83 Program change materials.

(a) All program changes submitted to NOAA shall be submitted in accordance with § 923.81. States shall use the Program Change website Form and Table to provide the following. (1) A brief general overview description of the proposed program change(s) and a current version of the document(s) containing the program change (e.g., text of the revised statute, regulation, policy, map). The general overview description shall identify the law, regulation, policy, or other type of program provision contained in the program change submission. (2) A brief summary of the changes of each authority or policy identified in paragraph (a)(1) of this section, and how the management program as changed is different than the previously approved management program. (3) Indicate which of one or more of the five management program approval areas under this part apply to the program change: (i) Uses Subject to Management (subpart B); (ii) Special Management Areas (subpart C); (iii) Boundaries (subpart D); (iv) Authorities and Organization (subpart E); or (v) Coordination, Public Involvement and National Interest (subpart F). (4) States shall use the Program Change Table provided by NOAA through the Program Change website to provide: (i) The State legal citation for the policy (state code, public law number, state regulation, other official state format); (ii) The title of the policy, section, or other descriptor; (iii) Whether the change or policy is new, revised, or deleted; (iv) The date the change was effective in the state; (v) Identification of each enforceable policy submitted as part of the program change; and (vi) The state enforceable mechanism citation that makes the policy enforceable under state law. The phrase “enforceable mechanism” means a state authority that makes an enforceable policy legally binding under state law, as described in this subpart and § 930.11(h) of this subchapter. Examples of an enforceable mechanism include state statutes, regulations, permitting programs, local government ordinances or court decisions. If an enforceable mechanism is changed so that an enforceable policy is no longer legally binding under state law, then the enforceable policy shall be submitted as a program change with a new underlying state enforceable mechanism; otherwise the policy is no longer enforceable for purposes of state CZMA Federal consistency reviews under part 930 of this subchapter. (5) Changes or additions to the state's Federal consistency list or geographic location descriptions. (i) For each new or revised listed Federal action, states shall describe the: (A) Type of Federal action; (B) Specific Federal statutory authority; (C) Responsible Federal agency; and (D) Reasonably foreseeable effects to the uses and resources of the state's coastal zone (§ 923.84(d)). (ii) For each new or revised geographic location description, states shall describe the: (A) Geographic location description, using specific geographic boundaries; (B) Listed Federal actions to be included within a geographic location description; and (C) Reasonably foreseeable effects to the uses and resources of the state's coastal zone (§ 923.84(d)). (6) States shall describe any changes or additions to Necessary Data and Information approved by NOAA in accordance with § 930.58 of this subchapter and explain why such information is necessary in order for the state to commence its Federal consistency review period. (7) The state shall indicate that the program change meets each of NOAA's decision criteria in § 923.84. (8) The state shall describe whether and how the program change will impact the following: (i) Resources or interests of any federally-recognized Indian Tribe. (ii) Threatened or endangered species listed under the Federal Endangered Species Act (ESA); (iii) Historic properties designated under the National Historic Preservation Act (NHPA); (iv) Essential fish habitat designated under the Magnuson Stevens Fishery Conservation and Management Act (MSFCMA); and (v) Marine mammals managed under the Marine Mammal Protection Act (MMPA). (9) The state shall identify the state's website where the public notices for the notification and submission requests are, or will be, located and where, if applicable, state documents related to the request may be viewed. (10) The state shall submit to NOAA any substantive correspondence between the state and Federal agencies (not including NOAA's Office for Coastal Management) concerning the development of the changes that are the subject of the program change request. (11) The state shall indicate if the program change was developed as a necessary action pursuant to section 312 of the Act (16 U.S.C. 1458—Review of performance) and, if so, shall briefly describe the necessary action. (b) [Reserved]

15 C.F.R. § 923.84 Program change decision criteria.

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

15 C.F.R. § 923.85 Procedural requirements of other Federal law.

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

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