Coastal Zone Consistency Review of Exploration Plans and Development and Production Plans

One main objective of this rulemaking is to correct discrepancies between MMS and NOAA regulations. Our current rules regarding Outer Continental Shelf (OCS) plan submission and approval were last revised in 1988. At that time, several statements concerning State coastal zone consistency reviews were placed in our regulations to alert lessees to the requirements that had to be met before activities associated with an EP or a DPP could be approved. Since 1988, it has become clear that some of these provisions conflicted with the NOAA rules governing State coastal zone consistency review of OCS plans. Thus, our regulations are being revised to comply with the NOAA requirements. Additionally, we believe it is in the interest of all parties for States to have the maximum amount of available information in evaluating the consistency certification by applicants for a DPP under the State's coastal management program and in making important CZM decisions. Accordingly when we prepare a DPP EIS, we propose to give the draft EIS to those States requiring the DPP EIS as necessary information that must be received before consistency review can begin.

Background

Section 307(c)(3)(B) of the Coastal Zone Management Act (CZMA) requires that activities described in OCS plans be conducted in a manner consistent with enforceable policies of federally approved State Coastal Management Programs (CMP). Consequently, any person submitting an OCS plan to us must attach certificates of coastal zone consistency to the plan. Under section 307(c)(3)(B), Federal Agencies cannot grant any Federal licenses or permits for any activity in the OCS plan until: (1) The State receives a copy of the OCS plan, the consistency certification, and any other necessary data and information; and (2) The State concurs with, or is conclusively presumed to concur with, the consistency certification, or the Secretary of Commerce overrides the State's consistency objection.

As documented in the CZMA, three items are required for State consistency review: the OCS plan, the consistency certification, and any necessary data and information. Because many State CMP's describe information requirements for assessing consistency, States are required to make copies of its CMP available to help applicants identify necessary data and information. Applicants are also encouraged to discuss consistency information needs with the State. In addition to using CMP information requirements for OCS plan review, NOAA has instructed States to use ``information received pursuant to the Department of the Interior's operating regulations governing (OCS) exploration, development and production'' to determine consistency (15 CFR 930.77(a)). The State may ask for information in addition to that required by Sec. 930.77, but such requests do not extend the start of its consistency review (15 CFR 930.78). Consistency review begins when the State receives a copy of the OCS plan, consistency certification, and required necessary data and information (15 CFR 930.78).

Proposed Changes to Our Regulations

One main objective in revising our regulations is to correct discrepancies between MMS and NOAA regulations. Specifically, the proposed revision at 30 CFR 250.203(f) replaces our directive to start consistency review upon receipt of the EP with the NOAA requirement to begin consistency review when the State receives the OCS plan, the lessee's consistency certification, and required necessary data and information (15 CFR 930.77). Also, we propose to add this NOAA reference on starting consistency review to the DPP regulations found at 30 CFR 250.204(i). Additionally, we are replacing the statement about the relationship between NEPA proceedings and State consistency review with one describing when we will forward a draft EIS to the State coastal zone management agency. In 1979, the Department of the Interior (DOI) expressed the view that delaying the CZMA consistency process until after a NEPA compliance document had been prepared would not be consistent with congressional intent. Specifically, in response to a comment suggesting a delay in the CZMA process when an EIS is needed for a DPP, the 1979 preamble to the current rule stated:

It is clear from the provisions of Section 25 of the Act that a State's coastal zone consistency review is independent of the National Environmental Policy Act review procedures, and the coastal zone consistency review should be completed within the timeframe specified in the Act and the implementing regulations. The Environmental Report is designed to provide all the information needed for the consistency review. To adopt the suggested procedure would result in a delay that is contrary to the intent of Congress.

44 Fed. Reg. 53686 (Sept. 14, 1979). DOI has reconsidered this position. First, as a matter of policy, 19 years of OCS program experience under the old rule has led us to the judgment that the lack of an EIS in a State's review of a CZMA consistency certification has contributed to many State objections and a more contentious process than necessary in developing our nation's offshore natural gas and oil. Accordingly, we have determined to support, to the extent permitted by law, the States' efforts to obtain as much environmental information as is reasonably obtainable prior to making consistency decisions under the CZMA. Second, as a matter of law, NEPA, CZMA, and OCS Lands Act (OCSLA) do not expressly state their relationship to each other, and the relationship (or lack of relationship) among these statutes is not as clear as the preamble to the 1979 rulemaking asserts. The 1979 preamble statement relied upon certain statements in the legislative history, not the statutory text. See, e.g., H.R. REP. No. 590, 95th Cong., 2d Sess. 167, reprinted in 1978 U.S. CODE CONG. & ADMIN. NEWS 1572, 1573. While the CZMA, OCSLA, and NEPA processes have somewhat different time frames, we do not find in them any requirement to achieve compliance with the separate mandates of those statutes in any rigid order. The Secretary's general rulemaking authority in Section 5 of the OCSLA, 43 U.S.C. 1334, provides him with considerable discretion to administer the OCS program. The Solicitor's Office advises that this authority gives the Secretary discretion to provide a more flexible approach to achieving that compliance. Thus, the Secretary may allow MMS to give a draft EIS to those States that require a draft EIS before starting DPP consistency review. Therefore, we propose to give the draft EIS to those States that require the DPP EIS as necessary information that must be received before consistency review can begin. Any delay in beginning the DPP consistency review until the draft EIS is available will not affect the mandated 60-day timeframe for our decision on the DPP. When a DPP EIS is prepared, the OCSLA requires that we approve, disapprove or require modification of the DPP 60 days after the release of the final EIS. Typically, there are about 8 to 9 months between the availability of the draft and final EIS's. We use this time period to solicit public comment (written and oral) on the draft EIS, respond to comments/make changes, and conduct internal reviews and other administrative matters associated with the EIS production. This time interval would allow the State sufficient time to complete its DPP consistency review (see chart below). Providing the State with the maximum available amount of information for the State to concur in the consistency certification by an applicant for a DPP, furthers DOI's efforts to maximize the amount of good science and analysis available to the States in making their important CZMA decisions, to design an OCS program based on consensus, not conflict, and to be good neighbors to the coastal States. We seek comments on this change of position and its potential impact on the OCSLA approval process and DPP applicants. We also seek comment on how this rule, once effective, should apply to pending DPP applications.

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Procedural Matters

Federalism (Executive Order (E.O.) 12612

In accordance with E.O. 12612, the rule does not have significant Federalism implications. A Federalism assessment is not required.

Takings Implications Assessment (E.O. 12630)

In accordance with E.O. 12630, the rule does not have significant Takings Implications. A Takings Implication Assessment is not required.

Regulatory Planning and Review (E.O. 12866)

This document is not a significant rule and is not subject to review by the Office of Management and Budget under E.O. 12866. (1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. (2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. (3) This rule does not alter the budgetary effects or entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. (4) This rule does not raise novel legal or policy issues.

Clarity of This Regulation

E.O. 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (5) Is the description of the rule in the ``Supplementary Information'' section of this preamble helpful in understanding the rule? What else can we do to make the rule easier to understand? Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, N.W., Washington, D.C. 20240. You may also e-mail the comments to this address:

Exsec@ios.doi.gov

Civil Justice Reform (E.O. 12988).

In accordance with E.O. 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

National Environmental Policy Act (NEPA)

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the NEPA of 1969 is not required.

Paperwork Reduction Act (PRA) of 1995

The information collection requirements in the proposed amendment to the rule remain unchanged. The current information collection requirements of Subpart B, Exploration and Development and Production Plans, have been approved by OMB under 44 U.S.C. 3507 and assigned OMB control number 1010-0049.

Regulatory Flexibility Act

The Department certifies that this document will not have a significant economic effect on a substantial number

of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The proposed revision to the rule will clarify, but not change, the requirements currently in place for OCS plan review and approval. The changes should make clear that NOAA regulations govern State coastal zone consistency review of OCS plans submitted to us. There will be no change to current procedures resulting from the proposed amendment to the rule. The Department has determined that these proposed changes to the rule will not have a significant effect on a substantial number of small entities. In general, most entities that engage in offshore activities are not considered small due to the technical and financial resources and experience necessary to safely conduct such activities. However, those lessees that are classified as small businesses will not be affected. The Department also determined that there are no indirect effects of this rulemaking on small entities that provide support for offshore activities. Small government entities, such as small local governments in an affected State's coastal zone, can participate in State coastal zone review and can request that the Regional Supervisor provide copies of plans. None of the proposed changes will affect this process. Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small business about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the enforcement actions of MMS, call toll-free (888) 734-3247.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

This rule is not a major rule under (5 U.S. C. 804(2)), SBREFA. This rule: (a) Does not have an annual effect on the economy of $100 million or more. (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or ability of U.S.- based enterprises to compete with foreign-based enterprises.

Unfunded Mandate Reform Act of 1995

This rule does not impose a unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

List of Subjects in 30 CFR Part 250

Continental shelf, Environmental impact statements, Environmental protection, Government contracts, Incorporation by reference, Investigations, Mineral royalties, Oil and gas development and production, Oil and gas reserves, Penalties, Pipelines, Public lands-- mineral resources, Public lands--rights-of-way, Reporting and recordkeeping requirements, Sulphur development and production, Sulphur exploration, Surety bonds.

Dated. February 9, 1999. Sylvia V. Baca, Acting Assistant Secretary, Land and Minerals Management. For the reasons stated in the preamble, Minerals Management Service (MMS) proposes to amend 30 CFR part 250 as follows:

PART 250--OIL AND GAS AND SULPHUR OPERATIONS IN THE OUTER CONTINENTAL SHELF

1. The authority citation for part 250 continues to read as follows:

Authority: 43 U.S.C. 1334.

2. In Sec. 250.203, paragraph (f) is revised to read as follows:

Sec. 250.203 Exploration Plan.

* * * * * (f) Within two working days after we deem the Exploration Plan submitted, the Regional Supervisor will send by receipted mail a copy of the plan (except those portions exempt from disclosure under the Freedom of Information Act and 43 CFR part 2) to the Governor or the Governor's designated representative and the CZM agency of each affected State. Consistency review begins when the State's CZM agency receives a copy of the plan, consistency certification, and required necessary data and information as directed by 15 CFR 930.78. * * * * * 3. In Sec. 250.204, paragraphs (i) and (j) are revised to read as follows:

Sec. 250.204 Development and Production Plan.

* * * * * (i) We will process the plan in accordance with this section and 15 CFR part 930. Accordingly, consistency review begins when the State's CZM agency receives a copy of the plan, consistency certification, and required necessary data and information as directed by 15 CFR 930.78. (j) The Regional Supervisor will evaluate the environmental impact of the activities described in the Development and Production Plan (DPP) and prepare the appropriate environmental documentation required by the National Environmental Policy Act of 1969. At least once in each planning area (other than the western and central Gulf of Mexico planning areas), we will prepare an environmental impact statement (EIS) and send copies of the draft EIS to the Governor of each affected State and the executive of each affected local government that requests a copy. Additionally, when we prepare a DPP EIS and when the State's federally approved coastal management program requires a DPP EIS for use in determining consistency, we will forward a copy of the draft EIS to the State's CZM Agency. We will also make copies of the draft EIS available to any appropriate Federal Agency, interstate entity, and the public. * * * * * [FR Doc. 99-3864 Filed 2-16-99; 8:45 am] BILLING CODE 4310-MR-P