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Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.) (PRA) requires
that a Federal agency consider the
impact of paperwork and other
information collection burdens imposed
on the public and obtain approval from
OMB for each collection of information
it conducts, sponsors, or requires
through regulations. Notwithstanding
any other provision of 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 PRA unless
that collection displays a currently valid
OMB Control Number. This final rule
does not require the collection of any
information.
List of Subjects in 15 CFR Part 315
Canada, Customs duties and
inspection, Imports, Motor vehicles.
Dated: July 22, 2019.
Bart Meroney,
Senior Advisor to the Deputy Assistant
Secretary for Manufacturing, International
Trade Administration, U.S. Department of
Commerce.

PART 315—[REMOVED AND
RESERVED]
For the reasons set out in the
preamble, and under the authority of 5
U.S.C. 301, we remove and reserve part
315 of title 15 of the Code of Federal
Regulations.

■

[FR Doc. 2019–16699 Filed 8–5–19; 8:45 am]
BILLING CODE 3510–GT–P

DEPARTMENT OF COMMERCE
National Oceanic Atmospheric
Administration
15 CFR Part 923
[Docket No. 080416573–8999–03]
RIN 0648–AW74

Coastal Zone Management Act
Program Change Procedures
Office for Coastal Management,
National Ocean Service, National
Oceanic Atmospheric Administration
(NOAA), Department of Commerce
(Commerce).
ACTION: Final rule.
AGENCY:

The National Oceanic and
Atmospheric Administration (NOAA) is
providing states and NOAA with a more
efficient process for making changes to
state coastal management programs
(‘‘management programs’’). The final
rule revises the Coastal Zone

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SUMMARY:

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Management Act (CZMA) program
change regulations and alleviates the
need for previous associated guidance
(Program Change Guidance (July 1996)
and Addendum (November 2013)); the
1996 Guidance and 2013 Addendum no
longer apply. Under the CZMA, a
coastal state may not implement any
amendment, modification, or other
change as part of its approved
management program unless the
amendment, modification, or other
change is approved by the Secretary of
Commerce under the regulations. Once
NOAA approves the incorporation of a
change into a management program, any
new or amended management program
enforceable policies are applied to
Federal actions through the CZMA
Federal consistency provision. The final
rule addresses the objectives raised in
NOAA’s May 2008 Advance Notice of
Proposed Rulemaking (ANPR) and
November 2016 Proposed Rule. These
objectives include: Provide a more
efficient process for states and NOAA to
make changes to state management
programs; remove unnecessary
requirements in the current regulations;
establish program change
documentation that all states would
adhere to; continue to ensure that
Federal agencies and the public have an
opportunity to comment to NOAA on a
state’s proposed change to its
management program; and comply with
the requirements of the CZMA and other
applicable Federal law. The final rule
also addresses comments submitted on
the proposed rule.
DATES: Effective: September 5, 2019.
FOR FURTHER INFORMATION CONTACT: Mr.
Kerry Kehoe, Federal Consistency
Specialist, Office for Coastal
Management, NOAA, at 240–533–0782
or [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
Unless otherwise specified, the term
‘‘NOAA’’ refers to the Office for Coastal
Management, within NOAA’s National
Ocean Service. The Office for Coastal
Management formed in 2014 through
the merger of the former Office of Ocean
and Coastal Resource Management and
the Coastal Services Center.
The CZMA (16 U.S.C. 1451–1466) was
enacted on October 27, 1972, to
encourage coastal states, Great Lake
states, and United States territories and
commonwealths (collectively referred to
as ‘‘coastal states’’ or ‘‘states’’) to be
proactive in managing the uses and
resources of the coastal zone for their
benefit and the benefit of the Nation.
The CZMA recognizes a national
interest in the uses and resources of the

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coastal zone and in the importance of
balancing the competing uses of coastal
resources. The CZMA established the
National Coastal Zone Management
Program, a voluntary program for states.
If a state decides to participate in the
program, it must develop and
implement a comprehensive
management program pursuant to
Federal requirements. See CZMA
§ 306(d) (16 U.S.C. 1455(d)); 15 CFR part
923. Of the thirty-five coastal states that
are eligible to participate in the National
Coastal Zone Management Program,
thirty-four have federally-approved
management programs. Alaska is
currently not participating in the
program.
An important component of the
National Coastal Zone Management
Program is that state management
programs are developed with the full
participation of state and local agencies,
industry, the public, other interested
groups and Federal agencies. See e.g., 16
U.S.C. 1451(i) and (m), 1452(2)(H) and
(I), 1452(4) and (5), 1455(d)(1) and
(3)(B), and 1456. The comprehensive
state management programs must
address the following areas pursuant to
15 CFR part 923:
1. Uses Subject to Management
(Subpart B);
2. Special Management Areas
(Subpart C);
3. Boundaries (Subpart D);
4. Authorities and Organization
(Subpart E); and
5. Coordination, Public Involvement
and National Interest (Subpart F).
NOAA approval is required for the
establishment of a state management
program. Once approved, changes to
one or more of the program management
areas listed above, including new or
revised enforceable policies, must be
submitted to NOAA for approval
through the program change process.
Program changes are important for
several reasons: The CZMA requires
states to submit changes to their
programs to NOAA for review and
approval (16 U.S.C. 1455(e)); state
programs are not static—laws and issues
change, requiring continual operation of
the CZMA state-Federal partnership;
and the CZMA ‘‘Federal consistency’’
provisions require that Federal actions
that have reasonably foreseeable coastal
effects be consistent with the
enforceable policies of federallyapproved management programs. The
state-Federal partnership is a
cornerstone of the CZMA. The primacy
of state decisions under the CZMA and
compliance with the CZMA Federal
consistency provision is balanced with
adequate consideration of the national
interest in CZMA objectives; the

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opportunity for Federal agency input
into the content of state management
programs; NOAA evaluation of
management programs; and NOAA
review and approval of changes to
management programs.
In establishing and maintaining their
federally-approved management
programs, states must consider national
interest objectives of the CZMA in
addition to state and local interests.
These national interest objectives are
contained in CZMA §§ 302 and 303 (16
U.S.C. 1451 and 1452). NOAA must also
evaluate whether a state program change
would meet these national interest
objectives. As part of NOAA’s national
interest evaluation, by statute and
regulations NOAA also determines
whether a state’s management program
if changed would continue to give
‘‘priority consideration to coastaldependent uses and orderly processes
for siting major facilities related to
national defense, energy, fisheries,
recreation, and ports and
transportation.’’ 16 U.S.C. 1452(2)(D).
Further, states, in developing and
implementing their management
programs, 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
Secretary shall find that the State has
given consideration to any applicable
national or interstate energy plan or
program. (16 U.S.C. 1455(d)(8), see 15
CFR 923.52 (Consideration of the
national interest in facilities)). These
CZMA national interest requirements
for the development and
implementation of state management
programs are further described in
NOAA’s CZMA regulations. See 15 CFR
923.52.
Some of the important issues NOAA
must consider when evaluating program
changes include whether the change
would: (1) Conflict with CZMA national
interest objectives; (2) attempt to
regulate Federal agencies, lands or
waters, or areas outside state
jurisdiction; (3) be preempted by
Federal law; (4) discriminate against
particular coastal users or Federal
agencies; (5) include policies that are
enforceable under state law; and (6)
raise issues under the National
Environmental Policy Act (NEPA),
Endangered Species Act (ESA), Marine
Mammal Protection Act (MMPA),
National Historic Preservation Act
(NHPA), or Magnuson Stevens Fisheries
Conservation and Management Act
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NOAA review and approval of
program changes is also important
because the CZMA provides for Federal
agency and public participation in the
content of a state’s management
program. NOAA can only approve
management programs and changes to
management programs after Federal
agencies and the public have an
opportunity to comment on the content
of the program change. Within the
context of the CZMA Federal
consistency provisions, an enforceable
policy is a state policy that has been
incorporated into a state’s federallyapproved management program, is
legally binding under state law (e.g.,
through constitutional provisions, laws,
regulations, land use plans, ordinances,
or judicial or administrative decisions),
and by which a state exerts control over
private and public coastal uses and
resources. See 16 U.S.C. 1453(6a) and 15
CFR 930.11(h) (enforceable policy). This
means that enforceable policies must be
given legal effect by state law and
cannot apply to Federal lands, Federal
waters, Federal agencies or other areas
or entities outside a state’s jurisdiction,
unless authorized by Federal law. Also,
the CZMA section 307 Federal
consistency provision requires that state
enforceable policies are the standards
that apply to Federal agency activities,
Federal license or permit activities,
outer continental shelf plans and
Federal financial assistance activities.
(16 U.S.C. 1456; see also 15 CFR
930.11(h)). Therefore, Federal agencies
and the public must have an
opportunity to review proposed
substantive changes to a state’s
enforceable policies.
Program changes are also important
because the CZMA Federal consistency
provision applies only if the Federal
action has reasonably foreseeable
coastal effects and a state has applicable
policies approved by NOAA that are
legally enforceable under state law. It is
therefore important for states to submit
to NOAA for approval timely updates to
state management program enforceable
policies.
II. Need for Revised Program Change
Regulations
The previous program change
regulations, 15 CFR part 923, subpart H,
were in place since the late 1970s. The
CZMA was revised in 1990, in part, to
place greater emphasis on state
management program enforceable
policies. This has led to an increase in
the number of program changes
submitted to NOAA and the workload
for state and Federal staff. States and
NOAA have, therefore, recognized the
need to clarify the program change

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procedures and to provide a more
administratively efficient submission
and review process. In 1996, NOAA
made minor revisions to the regulations
and also issued program change
guidance that further described program
change requirements. In 2013, NOAA
issued an addendum to the 1996
program change guidance for added
clarification. Over the years, states and
NOAA have, at times, found the
regulations difficult to interpret. For
example, there has been confusion
about determining: When a program
change is ‘‘routine’’ versus an
‘‘amendment;’’ when a program change
is ‘‘substantial;’’ what level of state
analysis is required; what level of detail
is needed for a policy to be enforceable;
and what can be approved as an
enforceable policy. The final rule
addresses these points of confusion by
revising the regulations at 15 CFR part
923, subpart H, and alleviating the need
for the 1996 program change guidance
and the 2013 addendum; the 1996
guidance and 2013 addendum no longer
apply. The final rule addresses the
objectives raised in NOAA’s May 2008
Advance Notice of Proposed
Rulemaking, 73 FR 29093 (May 20,
2008) (ANPR) and November 2016
Proposed Rule, 81 FR 78514 (Nov. 8,
2016).
III. Objectives of the Final Rule
NOAA’s objectives in revising the
program change regulations are to:
1. Establish a clear, efficient and
transparent process for program change
review;
2. Describe approval criteria and how
these apply;
3. Use terminology from the CZMA,
including time lines and extensions;
4. Eliminate the distinction between
‘‘routine program changes (RPCs)’’ and
‘‘amendments.’’ This removes the
program change analysis currently done
by states to determine if a change is
substantial, and therefore an
amendment, and instead requires states
to describe the nature of the program
change and indicate whether the state
believes the program change would
impact CZMA program approvability
areas, national interest objectives, or
compliance with other Federal laws.
The distinction between RPCs and
amendments, and the substantiality
analyses by states were administrative
and paperwork burdens with little or no
benefit;
5. Continue to determine on a case-bycase basis the appropriate level of NEPA
analysis warranted. With over 35 years
of reviewing program changes, NOAA
has determined that the vast majority of
program changes do not, for purposes of

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NEPA, significantly affect the human
environment;
6. Encourage states to use underline/
strikeout documents for program change
submissions to show changes to
previously approved policies;
7. Create a program change form that
all states must use to submit changes to
NOAA, easing state and NOAA
paperwork burdens, promoting more
consistent submissions and NOAA
analyses, and expediting NOAA’s
review;
8. Use the NOAA ‘‘Program Change
website’’ through which NOAA will
electronically post program changes and
public comments received, and notify
Federal agencies and the public of the
status of program changes, http://
coast.noaa.gov/czmprogramchange; and
9. Require states to post program
change public notices on the state’s
management program website.
In addition, the previous regulations
at 15 CFR part 923, subpart H, included
‘‘termination of approved management
programs.’’ However, sanctions to and
termination of management programs
are described in detail in Subpart L—
Review of Performance. Therefore, the
final rule no longer includes
termination of approved management
programs under subpart H.

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Changes Between the Proposed Rule
and Final Rule
In general, the final rule has the same
overall provisions, requirements, and
structure as the proposed rule. The final
rule does not introduce major new
requirements. There are various minor
changes and clarifications in the final
rule preamble and regulatory text in
response to comments and to ensure
that NOAA’s new Program Change
website is consistent with the final rule.
This final rule also provides further
explanation and clarification of CZMA
national interest considerations, public
notice for state program change
submissions to NOAA, and how NOAA
applies the Federal preemption doctrine
to its review of state CZMA program
change submissions.
NOAA describes the changes from the
proposed rule for each of the five
regulation sections (923.80, 923.81,
923.82, 923.83, 923.84, and 923.85) in
the preamble below under section IV.
Explanation of Changes to the CZMA
Program Change Regulations.
Comments on the Proposed Rule
NOAA received comments on the
proposed rule from the state coastal
management programs from California
(from both the California Coastal
Commission and San Francisco Bay
Conservation and Development

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Commission), Hawaii, Maine, New
York, Oregon, and Virginia. The Coastal
States Organization and the National
Ocean Policy Coalition also submitted
comments. In addition, NOAA
discussed some of the proposed changes
with the U.S. Navy. NOAA addresses
general comments below. NOAA
addresses comments on specific
sections in section IV. Explanation of
Changes to the CZMA Program Change
Regulations. The comments on the
proposed rule can be viewed in their
entirety and downloaded at https://
www.regulations.gov/docket?D=NOAANOS-2016-0137.
General Comments on the Proposed
Rule
Comment 1 (Hawaii, Maine,
California, Oregon, Coastal States
Organization): We support the purposes
of the rulemaking to provide a more
effective and efficient process for states
and NOAA to make changes to state
coastal management programs.
Response: NOAA appreciates the
comment.
Comment 2 (Oregon): We support
doing away with the concepts of
‘‘routine’’ changes or ‘‘amendments’’
and removing the need to provide an
analysis of whether a change is
‘‘substantial.’’
Response: NOAA appreciates the
comment.
Comment 3 (Virginia): We have no
comments or concerns with the
proposed rule.
Response: NOAA appreciates the
comment.
Comment 4 (National Ocean Policy
Coalition): The proposed rule refers to
proposed revisions to the associated
guidance and Addendum within NOAA
regulations, such revisions were not
included in the proposed rule and the
Coalition requests that the proposed
guidance and Addendum revisions be
provided for public comment before
being finalized.
Response: NOAA was not proposing
any changes to the 1996 program change
guidance and addendum to the
guidance. Rather NOAA is removing the
guidance and addendum and replacing
them with the final rulemaking; the
program change guidance and
addendum are no longer effective.
IV. Explanation of Changes to the
CZMA Program Change Regulations
§ 923.80

General

This section describes the general
requirements for program changes.
Paragraph (a) states that the term
‘‘program changes’’ includes all terms
used in the statute, CZMA § 306(e), and

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identifies the Office for Coastal
Management as the NOAA office that
administers these regulations. Paragraph
(b), derived from CZMA § 306(e), states
that a coastal state may not implement
a change as part of its management
program until NOAA approves the
program change. Similarly, a coastal
state may not use a state or local
government policy or requirement as an
‘‘enforceable policy’’ for purposes of
Federal consistency unless NOAA has
approved the state or local policy or
requirement as an ‘‘enforceable policy.’’
State or local government law not
approved by NOAA as part of a state’s
management program remain legal
requirements for state and local
government purposes, but will not be
part of a state’s management program
and, therefore, cannot be used for
CZMA Federal consistency purposes.
Paragraph (d) states that the term
‘‘enforceable policies’’ has the same
definition as that included in NOAA’s
CZMA Federal consistency regulations
at 15 CFR 930.11(h). NOAA has added
enforceable policy decision criteria in
§ 923.84. These criteria have been
included in NOAA guidance and
information documents and have been
part of long-standing NOAA
implementation of program changes and
enforceable policies. See, e.g., NOAA’s
former Program Change Guidance (July
1996) (http://coast.noaa.gov/czm/
consistency/media/guidanceappendices
.pdf) and NOAA’s Federal Consistency
Overview document (http://
www.coast.noaa.gov/czm/consistency/
media/FC_overview_022009.pdf).
Paragraph (e) notes that the
submission of program changes may be
required as a necessary action under
NOAA’s evaluation of management
programs under CZMA § 312 and 15
CFR part 923, subpart L. Failure to
comply with a necessary action to
submit a program change can result in
a suspension of CZMA grants pursuant
to CZMA § 312 and the subpart L
regulations.
Comments on Proposed § 923.80
Comment 5 (New York): Under
§ 923.80(e), how will NOAA identify
which program changes are ‘‘necessary
actions’’ under section 312 of the Act
and part 923, subpart L (Review of
Performance) that will trigger the
process for suspending NOAA funding
allocations to states or impose new
program changes to previouslyapproved Federal program elements?
Response: NOAA does not have
authority to require a state to make a
change to state law or its coastal
management program, except in limited
circumstances if a state is not adhering

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to its NOAA-approved coastal
management program. See California
Coastal Com’n v. Mack, 693 F.Supp. 821
(N.D. Cal. 1988). However, if a state
makes a change to any part of its NOAAapproved management program that was
needed to obtain NOAA approval or that
a state uses for Federal consistency
purposes, then section 306(e)(1) of the
Act requires the state to submit those
changes to NOAA for approval. NOAA
can find the failure to do so as part of
a periodic evaluation of a state’s
management program pursuant to
section 312 of the Act and require
submission of the changes to those
management program provisions as a
necessary action. Failure to meet the
section 312 necessary action for the
program change could form the basis for
enforcement action under 15 CFR
923.135.
Changes from Proposed Rule. NOAA
did not make any material changes
between the proposed rule and final
rule.
§ 923.81 Program Change Procedures,
Deadlines, Public Notice and Comment,
and Application of Approved Changes
This section sets forth various
procedures for submitting program
changes.
Paragraph (a). Program changes must
be submitted by the Governor of a
coastal state, the head of the single state
agency designated under the
management program to be the lead
state agency for administering the
CZMA, or the head of an office within
the designated single state agency if the
state has authorized that person to
submit program changes.
NOAA will no longer require states to
mail hard copies of program changes.
Rather, states must submit all program
changes through the new Program
Change website or through an
alternative method, agreed to by the
state and NOAA, if an electronic
submission through the website is not
possible.
All deadlines and timeframes will
start on the first full business day after
NOAA receives a program change (Day
1). For example, if NOAA receives a
submission on a Thursday, Day 1 for
timeline purposes would be Friday. If
the day of receipt is Friday and Monday
is a Federal holiday, Day 1 would be
Tuesday. All days, starting with Day 1,
are included in the calculation of total
time for a deadline, including weekends
and Federal holidays, except for the last
day (e.g., Day 30 or Day 120). The day
that NOAA’s decision is due must also
end on a full business day. For example,
if Day 30 is a Saturday, then NOAA’s
decision would be due the next

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Monday, or if Monday is a Federal
holiday, on Tuesday. States may request
that the official start date occur at a later
time; this is an administrative
convenience NOAA has allowed states
to use in the past to account for various
state administrative purposes.
Paragraph (b). NOAA shall confirm
receipt of all program changes and
future deadlines. During NOAA’s
review of a program change, NOAA may
request additional information that it
needs to make its decision.
Paragraph (c). This paragraph sets
forth the deadlines NOAA must follow
in responding to state program change
requests. The deadlines in paragraph (c)
are the same as NOAA’s current practice
and clarify a discrepancy that exists in
the current program change regulations
and the CZMA. NOAA is required by
the Act to respond within 30 calendar
days of receipt of a program change
request. The 30-day period starts on Day
1 (the first full business day after receipt
of a program change request). If NOAA
does not respond within the 30-day
period, then NOAA’s approval is
presumed. NOAA may extend its review
period up to 120 days after receipt of a
program change request, if NOAA so
notifies the state during the 30-day
period. NOAA can extend its review
period beyond 120 days for NEPA
compliance; NOAA must notify the state
of the NEPA extension during the 120day review period.
Paragraph (d). This paragraph codifies
the current practice of pre-submission
consultation with NOAA to identify any
potential approval issues prior to
submitting a program change
submission. States are encouraged to
submit draft program changes to NOAA
for informal review and to consult with
NOAA, to the extent practicable, prior
to state adoption of new or revised laws,
policies and other provisions that the
state intends to submit as a program
change.
Paragraph (e). Given the reliance on
electronic means of communication and
the demise of hard copy notices in
newspapers and other formats, all states
must post a public notice of its program
change on the state management
program’s website and directly email or
mail the notice to applicable local and
regional offices of relevant Federal
agencies, Federal agency headquarter
contacts, affected local governments and
state agencies, and any individuals or
groups requesting direct notice. NOAA
will also post the state notice on its
Program Change website and directly
notify via email Federal agency
headquarter contacts and any other
individual or group requesting direct
notice. The state’s public notice will

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describe the program change, any new
or modified enforceable policies, and
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.
NOAA will post the program change
and all NOAA decisions on its website
and notify Federal agency headquarter
contacts and other individuals or groups
requesting notification. NOAA may
extend the public comment period.
State program change approval
requests will be submitted electronically
by the state through the Program Change
website. The timing of the state’s public
notice will occur in the following
manner. 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
will 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 would either determine the
program change submission is not
complete and the review period has not
started or deny the program change
request.
Paragraph (f). This paragraph states
that program changes to enforceable
policies can only be applied for CZMA
Federal consistency review purposes on
or after the date NOAA approves the
changes. The effective date for the
approved changes will be the date on
NOAA’s approval letter. NOAA will
post its program change decision letters
on its Program Change website. This
section codifies in regulation NOAA’s
long-standing position that a state
enforceable policy cannot apply
retroactively to previously proposed
Federal actions; proposed Federal
actions are only subject to the
management program enforceable
policies approved at the time the
Federal action is proposed under the
various subparts of 15 CFR part 930.
Applying newly approved program
changes retroactively to proposed
Federal actions would be contrary to

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Congressional intent that Federal
consistency apply in an expeditious and
timely manner, and could impose unfair
retroactive requirements on applicants
and Federal agencies.
Comments on Proposed § 923.81
Comment 6 (Hawaii, Coastal States
Organization): We support § 923.81(a)
that program changes may be submitted
on a cyclical basis or as changes occur
giving states flexibility.
Response: NOAA appreciates the
comment.
Comment 7 (Hawaii): The proposed
rules should change ‘‘§ 923.81 Program
change procedures, deadlines, public
notice and comment and application of
Federal consistency’’ to ‘‘§ 923.81
Program change procedures, deadlines,
public notice and comment and
application of approved changes.’’
Response: NOAA agrees that the
phrase ‘‘application of approved
changes’’ would be more appropriate to
match the title of Subpart H—Changes
to Approved Management Programs,
and maintain the title consistency from
§ 923.81 to § 923.84.
Comment 8 (Hawaii): The proposed
rule should include a deadline under
§ 923.81(b) for NOAA to determine and
notify the state whether its submission
is complete.
Response: NOAA agrees with the
comment and has added to § 923.81(b)
five- and ten-day timeframes,
respectively, for responding to the
receipt of a program change and
notifying the state if a program change
submission is incomplete. This
timeframe does not preclude NOAA
from requesting additional information
from the state on the submission.
Comment 9 (Hawaii): A state’s public
notice is required by § 923.81(e)(2)(iii)
to indicate that any comments on the
content of the program change shall be
submitted to NOAA through NOAA’s
Program Change website within 21
calendar days of the date NOAA’s
review period starts. However, as
required by § 923.81(e)(1), when the
state posts its public notice prior to, or
on the same date as, the date the state
submits the electronic program change
to NOAA, the state does not know the
date when NOAA’s review period will
start. Therefore, when a state posts its
public notice on the state’s management
program website, the deadline for
comment submitted to NOAA has to be
left as ‘‘to be determined,’’ which shall
be updated when the day one of
NOAA’s review period is available from
NOAA.
Response: NOAA agrees that this
could be confusing and has modified
§ 923.81(e)(2)(iii) to state that comments

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shall be submitted within 21 days of the
date of the state’s notice.
Comment 10 (National Ocean Policy
Coalition): NOAA must publish notice
and provide public comment
opportunities in the Federal Register for
any changes that are not editorial, nonsubstantive, and/or minor in scope,
including but not limited to any
proposed changes or additions to state
Federal consistency lists or geographic
location descriptions, any major
changes requiring analysis for their
justification, and any changes that may
require analysis under NEPA, rather
than rely solely on website notices and
communications to individuals who
opt-in to receive such announcements.
Response: The CZMA establishes a
30-day timeframe for reviewing program
changes that are further detailing of
state programs. Preparation and
publication of a public notice in the
Federal Register while providing a
meaningful opportunity for public
comment cannot be accomplished
within a 30-day timeframe. Nonetheless,
public notice and an opportunity for
public comment is provided through
state management program websites and
email list serves as well as NOAA’s
Program Change website and list serve.
Furthermore, additional public notice
and an enhanced opportunity to submit
comments will be provided through the
NOAA’s new Program Change website
with direct notifications sent to
interested parties. Where changes are so
substantial as to bring into question the
continued approvability of a state
program and when NOAA needs
additional time for NEPA compliance,
NOAA’s practice has been to extend its
review timeframe in order to provide for
notice and comment in the Federal
Register. NOAA will continue to follow
that practice.
Comment 11 (National Ocean Policy
Coalition): NOAA should provide for at
least 45 days of public comment on
proposed changes to management
programs that are not editorial, nonsubstantive, and/or minor in scope,
including but not limited to any
proposed changes or additions to state
Federal consistency lists or geographic
location descriptions, any major
changes requiring analysis for their
justification, and any changes that may
require analysis under NEPA.
Response: NOAA disagrees. NOAA is
required by statute to respond to the
state within 30 days of receipt of a
program change. Therefore, NOAA
retains the 21-day comment period.
However, both the proposed rule and
final rule, in § 923.81(e)(4), allow NOAA
to extend a public notice period at

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NOAA’s discretion. See 16 U.S.C.
1455(e)(2).
Comment 12 (New York, Oregon):
Please clarify how this rule will relate
to the new NOAA Revised National
Environmental Policy Act Implementing
Procedures in its draft Companion
Manual for NOAA Administrative Order
216–6A containing policy and
procedures for implementing NEPA.
What standards will OCM use to
determine ‘‘on a case by case basis’’ the
appropriate level of NEPA analysis to be
applied?
Response: All program changes are
now subject to NOAA’s Companion
Manual for NOAA Administrative Order
216–6A, Appendix E, Categorical
Exclusion A6, effective January 13,
2017. See http://www.nepa.noaa.gov/.
NOAA will evaluate each program
change submitted by a coastal state on
a case-by-case basis pursuant to the
Administrative Record for Categorical
Exclusion A6 to determine if the
magnitude of the difference between the
current NOAA approved management
program and the management program
as changed would no longer be covered
under this Categorical Exclusion (CE)
and would require an environmental
assessment or environmental impact
statement. Factors NOAA will consider
when determining if the CE applies
include, but are not limited to, the
following. The presence of any of these
factors in a program change does not
necessarily mean the change is not
covered by the CE; rather, NOAA will
consider the magnitude of the change to
the management program for these
factors. Factors considered prior to
applying the CE:
• Whether the program change is
further detailing of existing: Uses
subject to the management program;
enforceable policies; organizational
structure; coastal zone boundaries;
special area management plans; national
interest objectives; geographic location
descriptions; or Federal consistency
lists.
• Whether the program change
contains new: Uses subject to the
management program; enforceable
policies; organizational structure;
coastal zone boundaries; special area
management plans; national interest
objectives; geographic location
descriptions; or Federal consistency
lists.
• Whether the approval of a program
change may be controversial.
• Whether the program change may
have a potentially significant effect on
tribal resources or sovereignty,
threatened or endangered species,
historic properties, essential fish
habitat, or marine mammals.

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• Whether the program change may
trigger any informal or formal
consultations for tribal or other Federal
law purposes. Not all tribal or other
Federal law consultations would
necessarily trigger the need for an
environmental assessment; rather,
NOAA would determine the magnitude
of the issues and whether the CE would
still apply.
Comment 13 (Oregon): We support
the use of the language in the statute for
establishing NOAA’s review periods
and extensions.
Response: NOAA appreciates the
comment.
Comment 14 (New York, Maine):
Please clarify the time limits NOAA will
have to review and approve program
changes and for extensions and public
hearings. It is unclear how long of an
extension ‘‘beyond 120 days’’ NOAA
can make based on the language under
§ 923.81(c) (see Page 78523 column 1).
Can the extension be indefinite?
Response: The CZMA requires NOAA
to respond within 30 days of receipt of
a program change request. Determining
the 30 days is described in this
preamble and in § 923.81(a), (b), and (c).
The Act authorizes NOAA to extend the
30-day response period to 120 days. 16
U.S.C. 1455(e)(2). Whether NOAA
extends the 30-day time period will
depend on the complexity or issues
raised by a program change, including
whether NOAA will hold a public
hearing. NOAA can extend beyond 120
days if NOAA needs that time to comply
with NEPA and the length of time
NOAA extends beyond 120 days will
depend on the time needed to produce
additional NEPA documents.
Comment 15 (New York): Will the
public be able to comment on every
program change submitted to the NOAA
Program Change website, and what will
be the process for states responding to
those comments? What type of
comments will be accepted during the
public comment period under this new
rule?
Response: The public and Federal
agencies will be able to respond to any
program change that NOAA determines
is complete and is under NOAA review.
This applies to all program changes that
states submit to NOAA through the
Program Change website and that
NOAA has made publicly available on
the Program Change website. NOAA has
modified § 923.81(e)(3) to state that
NOAA will not accept and will not
consider any comments received after
NOAA issues its decision. If a state
responds to a public comment before
NOAA issues its decision, then NOAA
will consider the state’s response and
may post the state’s response on the

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Program Change website. A state’s
response to a comment would be sent
directly to NOAA via email or mail and
not through the Program Change
website. NOAA has modified
§ 923.81(e)(2)(iii) to state that any public
comments on a state’s request to
incorporate the program changes into
the state’s management program may be
submitted to NOAA.
Comment 16 (New York): Please
clarify the time requirements or limits
for submitting program changes ‘‘as the
changes occur’’ or ‘‘on a cyclical basis.’’
Will the states get to choose the option
they prefer (‘‘as the changes occur’’ or
‘‘on a cyclical basis’’)?
Response: There is no requirement for
a state to submit program changes
within a specified time period, unless
the submission of program changes is a
necessary action in a CZMA section 312
finding and that 312 finding has a
specified time frame that would have
been discussed between NOAA and the
state. Section 923.81(a) gives states
choices on submitting program changes
as they occur or on some cyclical basis.
When a state submits a program change
may also depend on whether the state
wants NOAA to approve a program
change so the state can use the change
for Federal consistency reviews.
Comment 17 (New York): Under
§ 923.81(e)(4) how will NOAA
determine if a proposed program change
is elevated to a ‘‘controversial’’ status
that would necessitate a public hearing?
How would NOAA weigh the
information gathered during a public
hearing in its decision making regarding
whether or not to approve the proposed
program change?
Response: NOAA will evaluate the
magnitude of the proposed change to
the management program and the
totality of any issues raised on any
particular program change submission
to determine if any controversy over a
request for approval of a program
change warrants a public hearing. If
NOAA conducts a public hearing,
public comments become part of
NOAA’s decision record and NOAA
will evaluate the usefulness of the
comments submitted when applying
NOAA’s decision criteria.
Comment 18 (New York): When will
the new proposed regulations take
effect, and how will program changes
happen while the Program Change Form
and website are being developed, tested,
and finalized?
Response: The final regulations will
take effect 30 days after publication in
the Federal Register. The Program
Change website described in
§ 923.81(a)(1) has been developed,
tested, and finalized concurrently with

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development of this rulemaking. Any
program change submitted after the
effective date identified in the Federal
Register notice for the final rule must
apply these regulations and use the
Program Change website.
Comment 19 (Maine, Coastal States
Organization): Under § 923.81(e)(1),
allowing a coastal state to provide
public notice and opportunity for
comment on proposed program changes
by publishing a notice on its website
seems like a sensible change that, in
today’s world, provides notice in a
forum likely to reach interested parties
and reduces administrative costs related
to publication of newspaper notices.
Response: NOAA appreciates the
comment.
Comment 20 (Maine, Coastal States
Organization): Under § 923.81(e)(3),
NOAA would notify and solicit
comments from Federal agencies
regarding all proposed program changes
and provide access to information on
such changes on its website. Section
923.81(e)(1) appears to require coastal
states to provide the same notice to the
same Federal agencies. NOAA should
revise these provisions to avoid
duplicative notice and consider
clarifying that it will assume sole
responsibility for notifying Federal
agencies via its website as outlined in
proposed § 923.81(e)(3).
Response: NOAA disagrees with the
comment. States have a wider set of
local, regional, and sometimes
headquarter Federal agency contacts. In
addition, Federal agencies should have
the full 21 days to provide comments,
which starts from when the state
provides notice. It is the state’s notice
that solicits comments; NOAA’s notice
via the Program Change website alerts
Federal agency headquarter contacts
and anyone else asking for direct
notification that the program change is
available for viewing on the Program
Change website.
Comment 21 (Maine, Coastal States
Organization): Section 923.81(f) clarifies
that enforceable policies become
effective on the date of NOAA’s letter to
a coastal state providing its decision on
proposed program changes. This seems
helpful and well-aligned with rules
regarding web-based notice of approved
program changes.
Response: NOAA appreciates the
comment.
Changes from the Proposed Rule.
NOAA modified the title of the section
by replacing ‘‘Federal consistency’’ with
‘‘approved changes.’’ NOAA added to
§ 923.81(b) five- and ten-day
timeframes, respectively, for responding
to the receipt of a program change and
notifying the state if a program change

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submission is incomplete. NOAA
modified § 923.81(e)(2)(iii) to state that
comments shall be submitted within 21
days of the date of the state’s notice.
NOAA modified § 923.81(e)(3) to state
that NOAA will not accept and will not
consider any comments received after
NOAA issues its decision. If a state
responds to a public comment before
NOAA issues its decision, then NOAA
will consider the state’s response and
may post the state’s response on the
Program Change website. NOAA
modified § 923.81(e)(2)(iii) to state that
any public comments on a state’s
request to incorporate the program
changes into the state’s management
program may be submitted to NOAA.
§ 923.82 Program Change Submissions
Section 923.82 identifies the type of
changes that a state would submit to
NOAA. Paragraph (a) reflects the
statutory requirement that states may
not implement changes to their
management programs unless the
changes are approved by NOAA.
Paragraph (b) identifies the five CZMA
management program approval areas; all
changes to a state management program
would fall under one or more of these
five areas. The changes described in
§ 923.82(c) are editorial, nonsubstantive, or are minor in scope, both
procedurally and substantively. The
distinction between paragraph (c)
(editorial, non-substantive, or minor in
scope) and paragraph (d) (substantive
changes) does not re-introduce
‘‘routine’’ changes and ‘‘substantial’’
changes from the previous regulations.
Rather, paragraph (c) changes that are
editorial, non-substantive, or minor in
scope are not controversial and pose
little or no impact on Federal agencies
or the public. Therefore, NOAA’s review
of changes under § 923.82(c) would be
expedited.
Paragraphs (c)(1) through (4) describe
program changes that are either editorial
in nature or are minor in scope, both
procedurally and substantively.
Paragraph (c)(1) addresses editorial or
non-substantive changes to state laws,
regulations, enforceable policies, local
government coastal programs or plans
that contain enforceable policies, and
other authorities. Paragraph (c)(2) covers
changes to special area management
plans that do not change a state’s coastal
zone boundary, enforceable policies, or
geographic location descriptions, and
are not otherwise used by the state for
Federal consistency review. Paragraph
(c)(3) covers most organizational
changes where the primary structure
and responsibilities of the management
remain intact. NOAA will closely
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ensure that major overhauls of a state’s
management program structure would
not weaken a coastal program.
Most program changes, even those
that result in some substantive change
to enforceable policies, have historically
been minor and non-controversial, and
have not posed any approval issues or
resulted in any comments from Federal
agencies or the public. Under paragraph
(c)(4), NOAA’s review of these types of
program changes should be expedited so
long as these minor substantive changes
would only apply to revised enforceable
policies, not wholly new enforceable
policies, and the changes are consistent
with the scope and application of the
previously approved enforceable policy.
The types of program changes under
§ 923.82(d) are self-explanatory and
include: Any changes that are not
covered under § 923.82(c) and would be
used for Federal consistency purposes
(new or revised enforceable policies,
changes to state lists of Federal actions
subject to Federal consistency review,
geographic location descriptions outside
the coastal zone, necessary data and
information); new or revised coastal
uses; changes in the coastal zone
boundary; program approval authorities;
and special area management plans.
Paragraph (d)(4) recognizes that for
some states with local coastal programs
or plans, the state can respond to
Federal consistency reviews without
having to refer to the local programs or
plans. In such cases, while the local
programs and plans are important
implementing mechanisms for coastal
management in the states, states do not
need to submit updates to the local
programs or plans if they do not contain
enforceable policies for Federal
consistency purposes. This removes the
substantial administrative burden for
states and NOAA to submit and review
local coastal programs.
Paragraph (e) addresses changes to
state Clean Air Act (CAA) and Clean
Water Act (CWA) Pollution Control
Requirements. CZMA section 307(f)
states that CAA and CWA requirements
established by the Federal Government
or by any state or local government
pursuant to the CWA and CAA shall be
incorporated in state management
programs and shall be the water
pollution control and air pollution
control requirements applicable to such
management program. NOAA’s longstanding interpretation of 307(f) has
been that these CWA and CAA pollution
control requirements are automatically
enforceable policies of the state
management programs and, therefore,
states are not required to submit as
program changes any changes to state
CAA and CWA provisions. NOAA

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notes, however, that changes to state
CWA or CAA pollution control
requirements must be consistent with
the Acts and not seek to circumvent or
supersede exemptions provided for
specified military activities. For
example, state CWA and CAA
requirements must not attempt to
regulate or prohibit discharges from
vessels of the armed forces that are
permissible as a matter of law under the
CWA.
Comments on Proposed § 923.82
Comment 22 (Hawaii): We support
§ 923.82(c)(4) [now (d)(4)] that the 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.
Response: NOAA appreciates the
comment.
Comment 23 (Hawaii, Maine, Coastal
States Organization): We support
§ 923.82(d) [now (e)] that the states are
not required to submit as program
changes, any changes to state Clean Air
Act (CAA) and Clean Water Act (CWA)
provisions. The CZMA itself expressly
makes such requirements applicable
under NOAA-approved state coastal
management programs.
Response: NOAA appreciates the
comment.
Comment 24 (Oregon, Coastal States
Organization): Section 923.82(c)(3) [now
(d)(3)] concerns changes to provisions
that are not enforceable policies but that
help determine whether an enforceable
policy applies. Please clarify which
provisions would fall under this
category.
Response: In their program, some
states include guidance documents and
explanatory text for enforceable policies
to help interpret and apply the policies.
While such guidance or explanatory text
may explain how a Federal agency or
license or permit applicant may
demonstrate consistency with the
policies, the actual guidance or
explanatory text cannot be treated as
enforceable policies and cannot serve as
the basis for a state’s finding of
inconsistency or objection.
Changes from the Proposed Rule.
NOAA made minor wording changes to
clarify program change submission
types. In the preamble, NOAA further
explained the incorporation of Clean Air
Act and Clean Water Act provisions into
management programs and that state
CWA and CAA provisions cannot
circumvent or supersede exemptions
provided for specified military
activities.

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§ 923.83

Program Change Materials

Section 923.83 describes all the
program change information a state
must submit to NOAA. NOAA has
transformed these paragraphs into a
form that will, to the greatest extent
practicable, use check-boxes or ‘‘radiobuttons,’’ and require minimal text
input. While the same form will be used
for all program changes, there will be
less information needed for those
changes that fall under § 923.82(b).
Paragraph (a)(1) is a brief general
overview of the entire program change
submission. Paragraph (a)(2) is a more
detailed overview requiring states to
briefly describe each authority or policy
included in a program change. For
example, if a program change
submission contains changes to two
state statutes and three different state
regulatory programs, then the state
would briefly describe the changes in
each of the two statutes and three
regulations. The brief description would
also describe the effect of the change on
the management program, that is, the
‘‘delta’’—how the management program
as changed is different than the
previously approved management
program.
Paragraph (a)(3) requires states to
indicate which of the five program
approval areas the program change
applies to.
Paragraph (a)(4) is the table states will
fill out for each change within a state
statute, regulation, or other program
change authority. This is similar to the
table format states previously used to
fill out, but NOAA has eliminated some
of the columns.
Paragraph (a)(4)(vi) codifies NOAA
interpretation and long-standing
practice of the term ‘‘enforceable
mechanism.’’ An enforceable
mechanism is the state legal authority
that makes a state policy enforceable
under state law. In order to be an
‘‘enforceable policy,’’ CZMA § 304(6a)
requires that the policies be legally
binding under state law. NOAA has
interpreted this to mean that the
enforceable policy must be incorporated
into the state’s NOAA-approved
management program, but the
underlying enforceable mechanism does
not necessarily have to be incorporated
into a state’s management program or
submitted for NOAA approval. Some
enforceable mechanisms are integral
parts of the management program or are
needed for NOAA approval of a state’s
management program and changes to
these enforceable mechanisms would be
submitted to NOAA as program changes
(e.g., core management program statutes,
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implement a part of a management
program). States need to identify the
enforceable mechanism for each
enforceable policy. This is needed not
only so NOAA can concur that a state
policy is legally binding under state
law, but an enforceable mechanism may
be changed in such a way that makes an
enforceable policy no longer legally
binding under state law. In such cases,
that policy, while previously approved
by NOAA as part of the state’s
management program, would no longer
be an enforceable policy that could be
used for Federal consistency purposes.
Paragraph (a)(5) applies to changes to
state Federal consistency lists or
geographic location descriptions under
15 CFR 930.53.
Paragraph (a)(6) applies to necessary
data and information under 15 CFR
930.58.
Paragraph (a)(7) requires states to
indicate whether they believe that
NOAA’s decision criteria are met.
Paragraph (a)(8) requires states to
describe any impacts related to other
Federal laws. This does not require
states to develop new information or to
consult with Federal agencies or tribes.
Rather, NOAA needs any information a
state may have regarding requirements
of other Federal laws.
Paragraph (a)(9) requires states to
identify their websites where the public
notices and program change
submissions are located.
Paragraph (a)(10) requires states to
provide any correspondence they have
with Federal agencies regarding the
program change.
Paragraph (a)(11) requires states to
specify whether a program change is
responding to a CZMA § 312 evaluation
necessary action.
States are encouraged to show the
changes, additions and deletions to
enforceable policies using an underline/
strikeout format or other similar format.
If a state uses an underline/strikeout
format, the state should only show the
changes from the version of the policy
last approved by NOAA and the most
current version that is being submitted
to NOAA.
States are also encouraged to post
comprehensive lists of the enforceable
policies to the state’s coastal
management program website.
Comments on Proposed § 923.83
Comment 25 (Hawaii, New York):
NOAA should provide the states an
opportunity to review and comment on
the Program Change Form and website
before it is finalized for use.
Response: The Program Change
website and web-based form that states
will have to use to submit program

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changes once these regulations are final
and will not be available for public
review and comment. The website and
form are directly tied to these
regulations and do not contain any
requirements that are in addition to
these regulations. The website and form
were developed by NOAA’s in-house
web designers and NOAA did conduct
testing of the web-based form with three
states (Maine, North Carolina, Oregon).
Comment 26 (National Ocean Policy
Coalition, Oregon, Coastal States
Organization): We oppose, are
concerned with, or have questions on
proposed § 923.83(a)(3)(iii), which
would have allowed use of a Regional
Planning Body (RPB) process to replace
the program change requirements in the
regulations for notifications to Federal
agencies and the public for the
development of geographic location
descriptions and changes to state lists of
Federal license or permit activities that
describe general concurrences for minor
Federal license or permit activities
resulting from state and Federal agency
agreements as part of an RPB’s regional
ocean plan, and agreed to by NOAA
through the RPB process.
Response: NOAA has deleted
§ 923.83(a)(3)(iii) from the final rule,
regarding establishment of geographic
location descriptions and changes to
state Federal consistency lists by states
as part of a regional ocean plan by an
RPB. NOAA’s intent was that the public
process used by an RPB when
developing a regional ocean plan would
suffice for meeting public notice and
comment for changes to state CZMA
programs. However, neither the
Northeast RPB nor the Mid-Atlantic RPB
proposed geographic locations
descriptions or changes to state Federal
consistency lists and, while there was
public discussion at the RPBs of the
concept, there was no discussion of any
proposed geographic location
description. NOAA agrees that now that
these two regional ocean plans are final,
any further RPB or other regional
process should not suffice for the
CZMA’s and NOAA’s public
participation requirements. In addition,
Executive Order 13840 (Ocean Policy to
Advance the Economic, Security, and
Environmental Interests of the United
States) revokes and replaces the 2010
ocean policy Executive Order 13547 and
disbands the RPBs. States could discuss
and coordinate on geographic location
descriptions and other changes to a
state’s management program through
regional discussions, but any changes to
a state’s management program would
need to follow all requirements of 15
CFR part 923, subpart H, including
public notice requirements.

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Comment 27 (New York): One of
NOAA’s objectives in revising the
program change regulations is for the
states to ‘‘indicate whether the state
believes the program change would
impact CZMA program approvability
areas.’’ (82 FR at 78515). Would this
new analysis require a state to defend
the entirety of NOAA’s prior program
approval(s) when just one program
component is being updated?
Response: This is not a new
requirement. The comment refers to
§§ 923.83(a)(3) and 923.82(b), which is
the requirement for the state to identify
which of, and assess the impact to, the
five program approvability areas the
program change applies to: 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). Neither the
state nor NOAA assess the approvability
of a state’s entire program when
submitting and reviewing program
changes. If a program change raises an
approvability issue, NOAA addresses
that particular issue and not the entire
management program.
Comment 28 (New York): What
standards will OCM use to determine
that ‘‘enforceable mechanisms’’ are
inadequate for making enforceable
policies legally binding?
Response: As described in
§ 923.83(a)(2)(v) and in this preamble
for subpart H, NOAA relies on a state’s
identification of the state statutes,
regulations, or other state legal
requirements that can be shown to
compel compliance with the policy. In
reviewing state program change
submissions NOAA, in consultation
with the state, may identify policies that
are no longer supported by an
enforceable mechanism, e.g., the
enforceable mechanism was repealed by
the state or changed in such a manner
that it no longer supports the
enforceable policy.
Comment 29 (New York): Please
clarify and describe how the ‘‘Coastal
Effects Analysis’’ will be applied. Will
states be able to create their own
‘‘Coastal Effects Analysis’’ tools, and
what standards will be acceptable? For
the ‘‘causal connection,’’ will
probabilistic (Bayesian) statistics
methods and tools be allowable?
Response: For the coastal effects
analyses described in § 923.83(a)(5) and
§ 923.84(d), NOAA will determine
whether the state has demonstrated that
there will be reasonably foreseeable
effects to uses or resources of a state’s
coastal zone for a new item on a state’s
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activities in a proposed geographic
location description. NOAA has
provided the steps for states to use in
making a coastal effects analysis in
§ 923.84(d) and states may use a variety
of tools that help them address these
steps. For example, there are new oceanrelated data portals for the Northeast
and Mid-Atlantic Regional Ocean Plans,
as well as the Federal Marine Cadastre
that can provide substantial information
on resources, uses, and economic
information, related to coastal effects
analyses. At this time, NOAA is not
speculating on what tools may or may
not be persuasive in making a coastal
effects analysis.
Comment 30 (New York): Related to
§ 923.83(a)(4)(vi), after this proposed
rule is adopted, how will NOAA carry
out its review process for state coastal
programs to identify which, if any, state
coastal policies are no longer
enforceable for lack of standards?
Response: In reviewing state program
change submissions that include
previously approved enforceable
policies, NOAA, in consultation with
the state, may identify policies
submitted in a program change request
that were approved many years ago, but
do not contain a sufficient standard for
Federal consistency. NOAA will work
with the state to revise the policy or to
determine that it is no longer
enforceable.
Comment 31 (Maine, Coastal States
Organization): Section 923.83(a)(4)(i)
raises a technical issue. Use of the
citation to the pertinent public law
section(s) is an accurate way to
reference a proposed program change.
Use of the popular name or citation to
the codified law may prove confusing.
The same section of codified law may be
amended multiple times over the years.
In Maine, not all public laws are
codified. This section may be improved
by asking that states not provide just
public law citations but reference to the
codified law as well, to the extent
practicable.
Response: NOAA agrees with the
comment and has modified
§ 923.83(a)(4)(i) to include state code,
public law number, state regulation, and
other official state formats.
Comment 32 (Maine): Section
923.83(a)(4) requires coastal states to
submit to NOAA information that it
presumably already has. Accordingly,
for efficiency’s sake, it should be
deleted.
Response: NOAA has determined that
the only date needed for program
change submissions is the date the state
policy became effective in the state.
NOAA has deleted the other dates,
including date last approved by NOAA.

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Comment 33 (Oregon): We support
creating a program change form that
states would submit to ease state and
NOAA paperwork burdens and promote
consistent submissions and NOAA
analyses.
Response: NOAA appreciates the
comment.
Comment 34 (Oregon): We believe
providing underline/strikeout
documents showing changes to
previously approved policies is an
unnecessary and overly burdensome
requirement. There may be instances
where such a technique is employed to
clearly explain a program change, but
this should be an available tool, not a
strict requirement.
Response: The regulation does not
contain a requirement for states to
submit underline/strikeout documents.
However, the preamble to the final rule
does encourage states to submit
underline/strikeout documents as these
documents can be very useful in
reviewing the changes to management
programs and help expedite NOAA’s
review and approval.
Changes from the Proposed Rule.
NOAA made minor wording and
organization changes to § 923.83. NOAA
removed from the final rule a provision,
included in the proposed rule as
§ 923.83(a)(3)(iii), that would have
allowed use of the Regional Planning
Body process to replace some of the
program change requirements for the
development of geographic location
descriptions and changes to state
Federal consistency lists that describe
general concurrences for minor Federal
license or permit activities. NOAA made
this change after considering the public
comments, the current status of the
Northeast and Mid-Atlantic regional
ocean plans, and Executive Order 13840
(June 19, 2018—Ocean Policy to
Advance the Economic, Security, and
Environmental Interests of the United
States), which revokes and replaces the
2010 ocean policy Executive Order
13547 and disbands the Regional
Planning Bodies. NOAA modified
§ 923.83(a)(4)(i) to include state code,
public law number, state regulation, and
other official state formats. NOAA
modified § 923.83(a)(4) so that the only
date a state needs to include for program
change submissions is the date the state
policy became effective in the state.
NOAA deleted the other dates that were
in the proposed rule, including date last
approved by NOAA.
§ 923.84 Program Change Decision
Criteria
The decision criteria in this section
are taken from the previous Program
Change Guidance (1996) and NOAA’s

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Federal Consistency Overview
document. NOAA has applied these
criteria since at least 1996 when
reviewing program change requests.
These criteria are generally selfexplanatory, and states will use NOAA’s
program change form to assess whether
these criteria are satisfied. For
enforceable policies under paragraph (b)
of this section, a policy must contain a
standard; if a provision of a state law or
regulation merely directs a state agency
to develop standards, then that
provision would not be an enforceable
policy as it does not contain a standard.
An enforceable policy should contain
terms such as ‘‘shall,’’ ‘‘must,’’ or other
terms interpreted under state law that
mandate some action or compliance.
Paragraph (b) also clarifies that it does
not always make sense to parse out the
enforceable policies within a statute or
regulation that also contain parts that
are necessary details for applying
enforceable policies even though not
enforceable themselves. This includes
definitions, procedures, and information
requirements that are essential elements
of interpreting the substantive standards
and determining consistency with the
standards. Therefore, in some cases
NOAA may designate a statute or
regulation as an enforceable policy;
however, this designation only applies
to the substantive standards within the
statute or regulation. Procedural
requirements are not considered to be
enforceable policies for CZMA review
purposes.
Paragraph (b) also clarifies that
enforceable policies must: Apply to
areas and entities within state
jurisdiction; not assert regulatory
authority over Federal agencies, lands or
waters unless Federal law authorizes
such jurisdiction; not be preempted by
Federal law; not attempt to incorporate
by reference other state or local
mandatory requirements not submitted
to, reviewed, and approved by NOAA;
not discriminate against a particular
activity or entity; and not adversely
affect the national interest in the CZMA
objectives.
State review under the CZMA is
contingent upon a Federal action having
coastal effects. State enforceable policies
must relate to the particular effects of a
Federal action. NOAA will not approve
proposed enforceable policies that
arbitrarily discriminate against a
particular type of Federal action. There
must be a sufficient justification for
discriminatory policies. NOAA would
determine if a discriminatory policy is
reasonable and also whether a
prohibition of an activity would violate
the national interest objectives of the
CZMA.

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State enforceable policies must apply
equally to private and public entities,
and for Federal consistency purposes
states cannot apply enforceable policies
differently to Federal agencies. This is
derived from requirements in the CZMA
for states to ‘‘exert control over private
and public land and water uses and
natural resources in the coastal zone’’
(16 U.S.C. 1453(6a), definition of
enforceable policy), and for
management programs to contain
‘‘standards to guide public and private
uses. . . .’’ (16 U.S.C. 1453(12),
definition of management program).
NOAA evaluates whether a program
change would adversely affect the
national interests in the CZMA because
states are required to consider the
national interest in numerous activities
and activities that have a regional or
national benefit. The primary national
interest requirements for program
change considerations are set forth in 16
U.S.C. 1452(2)(D) and 1455(d)(8), and 15
CFR 923.52. See above discussion of
national interest requirements under
Background. If a state policy adversely
affects these national interests, then
NOAA will not approve the state policy
as part of a state’s management program.
For example, if a state is concerned
about having policies that would apply
to offshore oil and gas activities, the
state would need to develop policies
that would apply to any activity or
industry that would have similar coastal
effects; the state could not single out
and discriminate against offshore oil
and gas unless there are specific
activities or coastal effects that only
apply to the offshore oil and gas
industry. Likewise, if a state wants to
promote marine renewable energy in its
enforceable policies, it may do so, but
could not at the same time prohibit
other forms of energy development
without sufficient justification. Blanket
prohibitions are generally not approved
by NOAA as part of a state’s
management program unless a state
provides sufficient justification. These
examples have both discrimination and
national interest issues. Not only is
energy one of the national interests in
the CZMA, but states also have to give
priority consideration to energy siting
and must have energy facility siting
processes as part of their management
program.
In addition, NOAA will not approve
a proposed enforceable policy if Federal
law expressly preempts the state policy.
For example, NOAA could not approve
a state proposed policy that regulates
the siting of onshore liquefied natural
gas (LNG) terminals regulated by the
Federal Energy Regulatory Commission
(FERC) under the Natural Gas Act, since

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FERC has exclusive jurisdiction over the
siting of onshore LNG terminals and
states are federally preempted from
regulating the siting of LNG terminals.
Such a policy could not be legally
binding under state law, as required by
the CZMA definition of enforceable
policy in CZMA section 304(6a). States
can still apply enforceable policies of
general applicability to address coastal
effects from the siting of an LNG
terminal.
Paragraph (c) codifies long-standing
NOAA practice and guidance when
enforceable policies previously
approved by NOAA are no longer
enforceable for purposes of Federal
consistency review. If an underlying
enforceable mechanism, e.g., a state law,
is repealed or changed in such a way
that an enforceable policy is no longer
legally enforceable under state law, then
that policy can no longer be used for
Federal consistency purposes. The same
applies if a policy previously approved
by NOAA is subsequently preempted by
Federal law.
Paragraph (d) describes NOAA criteria
for states to amend their lists of Federal
actions subject to Federal consistency
review and to propose geographic
location descriptions (GLDs) to review
Federal actions outside the coastal zone,
either landward or seaward. This
paragraph focuses on the need for a state
to make an adequate justification based
on reasonably foreseeable effects to the
state’s coastal uses or resources. For
NOAA to find that an activity in a
proposed GLD outside the coastal zone
may have coastal effects, a state must
show that the impact from an activity
will have a reasonably foreseeable effect
to coastal uses or resources of the state.
A state’s burden to demonstrate coastal
effects means that a mere assertion that
an activity in Federal waters will have
an impact is insufficient to make a
finding of reasonably foreseeable coastal
effects. Moreover, a state’s effects
analysis must provide more than general
assertions. A persuasive coastal effects
analysis should identify, to the extent
practicable, each of the following:
1. The affected uses (e.g., commercial
and recreational fishing, boating,
tourism, shipping, energy facilities) and
resources (e.g., fish, marine mammals,
reptiles, birds, landmarks).
2. Where and in what densities the
uses and resources are found.
3. How the state has a specific interest
in the resource or use. Be specific in
showing their connection to the coastal
zone of the state (e.g., economic values,
harvest amounts, vulnerabilities,
seasonal information relevant to the
proposed activity).

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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 any 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. While there may be
mitigation considerations while
reviewing Federal consistency list
additions or geographic location
descriptions, NOAA expects that the
mitigation analysis would mostly be
used case-by-case for state requests to
review an unlisted activity under the
Federal consistency regulations (15 CFR
930.54), and not for program change
requests for state-Federal consistency
lists or state geographic location
descriptions.
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.
Comments on Proposed § 923.84.
Comment 35 (New York): Please
further clarify, define and provide
examples of ‘‘standards’’ to be used in
policies. How does this new
requirement comport with the definition
of an ‘‘enforceable policy?’’ Will
standards allow probabilistic (Bayesian)
statistics methods and tools in cases of
future uncertainties?
Response: NOAA is not adding a new
requirement for the content of
enforceable policies and will use the
definition of an enforceable policy
under 15 CFR 930.11(h). NOAA is not
providing further specificity to the
regulatory requirement that enforceable
policies must be some form of a
directive or other standard for
compliance, but ‘‘need not establish
detailed criteria such that a proponent
of an activity could determine the
consistency of an activity without
interaction with the State agency.’’ 15
CFR 930.11(h). A state may propose any
manner of criteria for an enforceable
policy and NOAA would determine
whether in the specific context a
probabilistic statistic method for an
enforceable policy is a sufficient
standard for compliance.
Comment 36 (Maine, Oregon, Coastal
States Organization): Section
923.83(a)(8) calls on coastal states to
‘‘describe whether and how the program
change will impact’’ the interests of
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and cultural resources managed under a
host of Federal laws. This provision,
which appears related to coastal states’
consideration of the national interest,
imposes a new and potentially
significant and burdensome requirement
on coastal states. We suggest that NOAA
should continue to bear the burden of
conducting the assessments called for
by this provision if such assessments are
needed. Federally-recognized tribes are
the best ones to articulate whether and
how a given proposed change may affect
their interests. The trust responsibility
for consideration of tribal interests and
for compliance with consultation
requirements of other Federal laws is
NOAA’s responsibility. Federal agencies
responsible for administration of the
laws referenced in this section are best
positioned to provide comments to
NOAA on how a proposed change may
relate to those laws.
Response: NOAA recognizes that it
has responsibility for conducting
potential government-to-government
consultation with tribes as well as
compliance for various consultations
that may be needed under other Federal
statutes. Section 923.85 describes
NOAA’s responsibilities. However,
when submitting a program change,
NOAA needs the state’s assessment of
whether it believes any tribal or other
Federal law interests are impacted given
a state’s local knowledge. NOAA is not
asking the state to gather additional
information or to reach out to tribes or
to initiate and consult under other
Federal statutes. Rather, NOAA is
merely asking for information that a
state may have for these consultation
processes.
Comment 37 (California, Coastal
States Organization, Maine): The
commenters assert that, under
§ 923.84(b)(5), Federal preemption
should not apply to state CZMA
enforceable policies, because the state
policies are implemented through a
Federal statute, the CZMA. Further, they
comment that NOAA should not make
a determination of whether an
enforceable policy is federally
preempted and, therefore, not
approvable. Rather, the determination
should be made by state attorneys
general or the courts. In making these
comments, the commenters assert that
NOAA’s application of the Federal
preemption doctrine to the definition of
enforceable policy in CZMA section
304(6a) is incorrect.
Response: Federal preemption of state
law arises from the Supreme Court’s
interpretation of the Supremacy Clause
which states that the ‘‘Constitution, and
the Laws of the United States . . . shall
be the supreme Law of the land.’’ U.S.

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Const., Art. VI, cl. 2. There are two main
types of Federal preemption, both of
which result in the invalidation of state
law: Express preemption and implied
preemption. Express preemption occurs
when a Federal law explicitly conveys
Congress’ intent to preempt state law or
regulation. Implied preemption occurs
when a state law conflicts with a
Federal law, or Congress intends to
‘‘occupy the field’’ in a particular area
of law. If a Federal law preempts a state
policy, the policy is not legally binding
under state law and shall not be an
enforceable policy under 16 U.S.C.
1453(6a). NOAA will not approve for
incorporation into a state’s management
program a state policy that is expressly
preempted by Federal law. NOAA also
recognizes that situations may arise in
which an approved enforceable policy is
not expressly preempted by Federal law,
but could be impliedly preempted by
Federal law. In such situations, NOAA
encourages states to coordinate with the
applicable Federal agency to determine
whether Federal law preempts
application of the state’s enforceable
policy.
Even though states review Federal
actions under the CZMA Federal
consistency authority (a Federal law
requirement), the states apply their
CZMA enforceable policies, which are
based on state law, to review Federal
actions. NOAA does not believe that the
CZMA Federal consistency authority or
NOAA’s approval of state enforceable
policies for incorporation into state
management programs, removes the
application of Federal preemption to the
state enforceable policies. The
application of the Federal preemption
doctrine to the CZMA and state
enforceable policies as described in the
proposed rule and in this final rule is
NOAA’s long-standing position and
does not represent a change in NOAA’s
view or how NOAA would review state
CZMA program changes under the
revised regulations. NOAA believes that
its application of Federal preemption to
state CZMA enforceable policies is
required by the definition of
‘‘enforceable policy’’ in CZMA section
304(6a) (must be legally binding under
state law).
The Federal preemption doctrine
results in the invalidation of state law,
not Federal law. Therefore, even if a
Federal law preempts a state’s
enforceable policy, CZMA Federal
consistency review still applies to
Federal actions. For example, under the
CZMA Federal consistency authority,
states have routinely reviewed Federal
actions that are regulated by a Federal
law that preempts certain state law,
such as: Onshore liquefied natural gas

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terminals or oil and gas pipelines
regulated by the Federal Energy
Regulatory Commission (FERC) under
the Natural Gas Act; hydroelectric
facilities regulated by FERC under the
Federal Power Act; abandonment of
railway lines regulated by the Surface
Transportation Board under the Revised
Interstate Commerce Act; and impacts to
marine mammals regulated by NOAA’s
National Marine Fisheries Service under
the Marine Mammal Protection Act. In
such instances, states conduct CZMA
Federal consistency reviews by applying
their enforceable policies of general
applicability to address coastal effects of
the proposed Federal actions.
NOAA has removed the phrase ‘‘on its
face,’’ from § 923.84(b)(5) as this term
could be misinterpreted and is not
needed when discussing Federal
preemption.
Comment 38 (Maine, Coastal States
Organization): Section 923.84(d)(6) is
problematic and raises concerns about
how it may be interpreted and applied
to frustrate coastal states’ efforts to
address the potential effects of oceanbased activities on coastal resources. In
order to secure jurisdiction to review an
extra-territorial or unlisted activity or
establish a ‘‘geographic location
description’’ (GLD) under NOAA’s
rules, a coastal state need only show
that a coastal effect is ‘‘reasonably
foreseeable.’’ As this term is typically
used that refers to a level of knowledge
or information that an average person
may have based on experience. The
basic problem with this provision is
that, as applied, it may put the cart well
before the horse by asking coastal states
to prove too much, too soon. This
provision appears to require a coastal
state to make a significant factual
showing establishing a direct causal link
between such activities and foreseeable
effect(s) simply in order to secure
jurisdiction to review such activities for
consistency with its enforceable
policies. As a consequence, it has the
potential to inappropriately shift the
burden of coming forward with
information regarding coastal effects to
coastal states as opposed to Federal
agencies or Federal applicants. Whereas
subparts (1)–(4) call for factual
information that may be reasonably
available to a coastal state, subparts (5)
and (6) in effect state core issues which
a coastal state may want to examine in
detail in light of the factual information
called for by subparts (1–4).
Response: NOAA disagrees with the
comment. Paragraphs 5 (impacts from
the activity) and 6 (causal connection to
coastal effects) have always been
essential to NOAA’s analysis when
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Federal license or permit activities for
Federal consistency review and state
requests to add a geographic location
description outside a state’s coastal zone
for Federal consistency purposes. (In
addition, while not related to this
rulemaking these have also been
essential to NOAA review of state
requests to review unlisted activities
under the Federal consistency
regulations at 15 CFR 930.54.)
Paragraphs 5 and 6 explain how a state
makes the ‘‘reasonably foreseeable
effects’’ argument. Paragraphs 1–4 and 8
have been developed to assist states in
better understanding how to show
effects under paragraphs 5 and 6,
especially by using new geospatial tools
such as the data portals for the
Northeast and Mid-Atlantic Regional
Ocean Plans and the Marine Cadastre
developed by the Bureau of Ocean
Energy Management (BOEM) and
NOAA. In addition, while states should
address all of the paragraphs 1–8 to
make the most persuasive effects
argument, the precursor language to
paragraphs 1–8 includes the phrase ‘‘to
the extent practicable,’’ and NOAA has
added to paragraph 6 the phrase ‘‘A
reasonable showing of a causal
connection . . . .’’
Comment 39 (Maine, Coastal States
Organization): Section 923.84(d)(7)
would authorize NOAA to reject a
coastal state’s attempt to assert Federal
consistency review authority through
establishment of a geographic location
description or a change in its list of
Federal license and permit actions
subject to consistency review based on
NOAA’s assessment of whether
mitigation that may be proposed in the
future would effectively eliminate the
‘‘coastal effect’’ necessary for such
extensions of state review authority.
This provision is problematic.
Mitigation proposed to ameliorate
adverse effects of a development or
other activity cannot reliably be known
or presumed until an actual proposal,
such as a Federal permit application,
has been filed. Accordingly, it is not
clear how NOAA could conclude that
mitigation which has not actually been
proposed may eliminate a coastal effect.
The question of whether and how the
proposed mitigation may ameliorate the
effect is best examined following
detailed review of the proposed action
and based on the understanding of
project-specific effects that must be
mitigated.
Response: NOAA believes that
mitigation information may be relevant
to determining reasonably foreseeable
coastal effects. When mitigation is
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state is requesting to add to its Federal
consistency list or a geographic location
description, the mitigation measures
may be relevant in determining effects.
NOAA understands that additional
mitigation measures may ultimately be
required for a project beyond those
proposed and that these cannot be
considered in determining effects if they
are unknown at the time of NOAA’s
review.
NOAA agrees with the comment, in
part, related to changes to state Federal
consistency lists and state geographic
location description proposals. NOAA
has added language to the preamble
description of paragraph 7 explaining
that NOAA expects that the mitigation
analysis would be used mostly for state
case-by-case requests to review an
unlisted activity, but still may be
relevant for additions to state Federal
consistency lists or state geographic
location descriptions.
Comment 40 (Oregon): We are
concerned with the last sentence of
section 923.84(c) (Effect of Prior
Program Change Approvals) regarding a
previously approved enforceable policy
that may become unenforceable if
subsequent Federal law preempts state
regulation of a particular activity. We
are concerned with situations where a
state has regulated an activity based on
similar coastal effects. It is not clear
how that would interplay with the
‘‘particular activity’’ preemption.
Response: This sentence has been
revised to clarify that a previously
approved enforceable policy will no
longer be legally enforceable under state
law if subsequent Federal law preempts
the state policy. For example, if a state
policy that NOAA previously approved
as part of the state’s management
program has text that determines where
someone can ‘‘site liquefied natural gas
(LNG) terminals,’’ that requirement
would no longer be enforceable for
CZMA purposes as states are federally
preempted from siting LNG terminals,
because the Energy Policy Act of 2005
amended the Natural Gas Act to give
FERC exclusive authority for the siting
of LNG terminals. States would still
review applications to FERC for LNG
terminals under the CZMA Federal
consistency provision and apply its
relevant enforceable policies that
address coastal effects.
Comment 41 (Oregon): It would be
helpful if NOAA identified what criteria
were not met when they do not approve
a portion of a plan or statute as
enforceable.
Response: The criteria NOAA uses to
approve or not to approve an
enforceable policy are discussed in this

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preamble and are contained in 15 CFR
930.11(h) and 15 CFR 923.84(b) and (c).
Comment 42 (Oregon): Regarding
NOAA’s decision criteria, we believe
that the only applicable criteria are first,
the program continues to meet the
standards set forth in CZMA § 306(d),
and second, the revised program does
not place an unacceptable burden on a
Federal agency operating in the coastal
zone. Absent either of those
circumstances, NOAA should approve
any change to a coastal program.
Response: NOAA decision criteria
must include the program approval
standards in 16 U.S.C. 1455(d) and in
corresponding program approval
regulations in 15 CFR part 923, the
program change requirements in 16
U.S.C. 1455(e), and criteria established
for determining enforceable policies
under 16 U.S.C. 1453(6a), 15 CFR
930.11(h), and as further described in 15
CFR part 923, subpart H. These criteria
have been part of NOAA regulations and
guidance for decades. NOAA is not
making substantial changes to program
change decision criteria in this final
rule.
Changes from the Proposed Rule.
NOAA modified the preamble language
to further clarify how the Federal
preemption doctrine applies to the
CZMA. NOAA removed the phrase ‘‘on
its face,’’ from § 923.84(b)(5) as this term
could be misinterpreted and is not
needed when discussing Federal
preemption. NOAA revised § 923.84(c)
to clarify that a previously approved
enforceable policy will no longer be
legally enforceable under state law if
subsequent Federal law preempts the
state policy. NOAA added to
§ 923.84(d)(6) the phrase ‘‘A reasonable
showing of a causal connection to the
proposed activity . . . .’’ This further
emphasizes that the information
described in § 923.84(d) does not
require states to provide absolute proof
of coastal effects, but to provide
information to the ‘‘extent practicable’’
that supports a reasonable causal
connection of coastal effects to the
proposed activity.

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§ 923.85 Procedural Requirements of
Other Federal Law
This section describes compliance
and consultations under other Federal
law such as ESA, NHPA, MSFCMA or
MMPA and also coordination with
federally-recognized Indian Tribes. A
‘‘federally-recognized Indian Tribe’’ is
an Indian or Alaska Native Tribe, Band,
Nation, Pueblo, Village, or Community
that the Secretary of the Interior
acknowledges to exist as an Indian Tribe
pursuant to the Federally Recognized

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Indian Tribe List Act. See 82 FR 4915
(Jan. 17, 2017).
NOAA’s action in approving a
program change may require NOAA to
coordinate with tribes or with other
Federal agencies to determine if NOAA
needs to consult under other Federal
statutes. In some circumstances NOAA
may need to conduct government-togovernment consultation with tribes
pursuant to applicable executive orders
and Federal case law.
However, it is important to
understand the nature of NOAA’s
discretion for the review and approval
of program changes when informally or
formally consulting on Endangered
Species Act, other Federal consultations
and addressing tribal concerns. NOAA
can approve or deny a program change,
but cannot affect the state’s ability to
enact a law and implement it at the state
level. NOAA’s approval of any state or
local provisions as enforceable policies
of the state’s management program
means those provisions can be used
during a state’s CZMA Federal
consistency review.
The CZMA is a voluntary program
and if a state chooses to participate it
develops a management program unique
to its state, based on state laws and
policies pursuant to general program
requirements in the CZMA and NOAA’s
regulations. As such, the national
coastal zone management program is not
a federally delegated program and if a
state chooses not to participate NOAA
does not implement a coastal
management program in the state. Once
NOAA approves a state’s management
program, NOAA cannot require a state
to change its program. NOAA can,
through periodic evaluations of a state’s
management program under CZMA
section 312, establish necessary actions
if NOAA finds a state is not adhering to
its NOAA-approved program, but
NOAA can only recommend that a state
change its program to create a different
state standard or to address emerging
issues. If NOAA finds that a state is not
adhering to its management program
and the state does not remedy the issue,
NOAA’s only recourse is to impose
financial sanctions by withholding a
part of a state’s annual CZMA
implementation grant until the state
remedies the issue or ultimately NOAA
could decertify a state’s management
program.
If a state submits a program change,
NOAA can approve or disapprove that
program change. When NOAA reviews
a program change, NOAA has a limited
ability to require a state to make changes
to state policies. If NOAA disapproves,
this does not require a state to change
state law. Therefore, there is no effect

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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.
Changes from the Proposed Rule.
NOAA made minor wording changes to
§ 923.85.
V. Miscellaneous Rulemaking
Requirements
Executive Order 12372:
Intergovernmental Review
This program is subject to Executive
Order 12372.
Executive Order 13132: Federalism
Assessment
NOAA has concluded that this
regulatory action is consistent with
federalism principles, criteria, and
requirements stated in Executive Order
13132. The proposed changes in the
program change regulations are
intended to facilitate Federal agency
coordination with coastal states, and
ensure compliance with CZMA
requirements. The CZMA and these
revised implementing regulations
promote the principles of federalism
articulated in Executive Order 13132 by
granting the states a qualified right to
amend their federally-approved
management programs to address
activities that affect the land and water
uses or natural resources of state coastal
zones and to apply these amended
management programs to Federal
actions through the CZMA Federal
consistency provision. CZMA section
307 and NOAA’s implementing
regulations (15 CFR part 930) balance
responsibilities between Federal
agencies and state agencies whenever
Federal agencies propose activities, or
applicants for a required Federal license
or permit propose to undertake
activities, affecting state coastal uses or
resources. Through the CZMA, Federal
agencies are required to carry out their
activities in a manner that is consistent
to the maximum extent practicable with
federally-approved state management
programs while licensees and
permittees are to be fully consistent
with the state programs. The CZMA and
these implementing regulations provide
a mechanism for states to object to
Federal actions that are not consistent
with the state’s management program. A
state objection prevents the issuance of
the Federal permit or license, unless the

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Federal Register / Vol. 84, No. 151 / Tuesday, August 6, 2019 / Rules and Regulations
Secretary of Commerce overrides the
objection. Because the CZMA and these
regulations promote the principles of
federalism and enhance state
authorities, no federalism assessment
need be prepared.
Executive Order 12866: Regulatory
Planning and Review
This final rule is not significant for
purposes of Executive Order 12866.
Regulatory Flexibility Act
The Chief Counsel for Regulation of
the Department of Commerce certified
to the Chief Counsel for Advocacy of the
Small Business Administration during
the proposed rule stage that this action
would not have a significant economic
impact on a substantial number of small
entities. The factual basis for the
certification was published in the
proposed rule and is not repeated here.
No comments were received that would
change the certification that this action
will not have a significant economic
impact on a substantial number of small
entities regarding this certification. As a
result, a final regulatory flexibility
analysis and not required and none was
prepared.

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Paperwork Reduction Act
This rule contains no additional
collection-of-information requirement
subject to review and approval by the
Office of Management and Budget under
the Paperwork Reduction Act; rather it
changes the manner in which states
provide information to NOAA and, in
some cases, eliminates or reduces
information currently required.
National Environmental Policy Act
NOAA has concluded that this action
does not have the potential to pose
significant impacts on the quality of the
human environment. Further, NOAA
has concluded that this final rule would
not result in any changes to the human
environment and that no extraordinary
circumstances exist. Therefore, NOAA
has concluded that this rulemaking does
not have a significant impact on the
human environment and is categorically
excluded from the need to prepare an
environmental impact statement
pursuant to the requirements of NEPA
in accordance with NAO 216–6A,
Categorical Exclusion G7: Preparation of
policy directives, rules, regulations, and
guidelines of an administrative,
financial, legal, technical, or procedural
nature, or for which the environmental
effects are too broad, speculative or
conjectural to lend themselves to
meaningful analysis and will be subject
later to the NEPA process, either
collectively or on a case-by-case basis.

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See also the description above on NEPA
compliance for program changes.
List of Subjects in 15 CFR Part 923
Administrative practice and
procedure, Coastal zone, Reporting and
record keeping requirements.
Nicole R. LeBoeuf,
Acting Assistant Administrator, for Ocean
Services and Coastal Zone Management,
National Oceanic and Atmospheric
Administration.

For the reasons stated in the
preamble, 15 CFR part 923 is amended
as follows:
PART 923—COASTAL ZONE
MANAGEMENT PROGRAM
REGULATIONS
1. The authority citation continues to
read as follows:

■

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

2. Revise subpart H to read as follows:

Subpart H—Changes to Approved
Management Programs
Sec.
923.80 General.
923.81 Program change procedures,
deadlines, public notice and comment,
and application of approved changes.
923.82 Program change submissions.
923.83 Program change materials.
923.84 Program change decision criteria.
923.85 Procedural requirements of other
Federal law.

Subpart H—Changes to Approved
Management Programs
§ 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

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38131

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.
§ 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

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Federal Register / Vol. 84, No. 151 / Tuesday, August 6, 2019 / Rules and Regulations

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

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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.

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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.

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(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).

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§ 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:

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(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

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38133

(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.
§ 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;

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(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);

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(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]
§ 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.

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(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

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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

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with maps; and shows values, trends
and vulnerabilities.

DEPARTMENT OF HOMELAND
SECURITY

§ 923.85 Procedural requirements of other
Federal law.

Coast Guard

NOAA shall determine on a case-bycase 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-toGovernment 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 NOAAapproved management program and
cannot be used for CZMA Federal
consistency purposes. NOAA cannot
use a program change to require changes
to other parts of a state’s management
program.

33 CFR Part 165

[FR Doc. 2019–16513 Filed 8–5–19; 8:45 am]
BILLING CODE 3510–08–P

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38135

[Docket Number USCG–2019–0213]
RIN 1625–AA87

Security Zone; Burke Lakefront
Airport, Lake Erie, Cleveland, OH
Coast Guard, DHS.
Final rule.

AGENCY:
ACTION:

The Coast Guard is
establishing a security zone for certain
navigable waters of Lake Erie,
Cleveland, OH. This action is necessary
to protect the public and surrounding
waterways from terrorist acts, sabotage,
or other subversive acts, accidents, or
other causes of a similar nature. This
regulation prohibits persons and vessels
from being in the security zone unless
specifically authorized by the Captain of
the Port (COTP) Buffalo or a designated
representative.
DATES: This rule is effective September
5, 2019.
ADDRESSES: To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type USCG–2019–
0213 in the ‘‘SEARCH’’ box and click
‘‘SEARCH.’’ Click on Open Docket
Folder on the line associated with this
rule.
FOR FURTHER INFORMATION CONTACT: If
you have questions about this proposed
rulemaking, contact LT Sean Dolan,
Chief Waterways Management Division
at 716–843–9322 or email [email protected].
SUPPLEMENTARY INFORMATION:
SUMMARY:

I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
§ Section
U.S.C. United States Code

II. Background Information and
Regulatory History
Previously, COTP Buffalo
implemented emergent security zones
around Burke Lakefront Airport,
Cleveland, OH, whenever Senior
Government Officials or foreign
dignitaries utilized the airport. On April
29, 2019, the Coast Guard published a
notice of proposed rulemaking (NPRM)
titled Security Zone; Burke Lakefront
Airport, Lake Erie, Cleveland, OH (84
FR 17981). There we stated why we
issued the NPRM, and invited

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