[Code of Federal Regulations]
[Title 15, Volume 3]
[Revised as of January 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 15CFR930.32]

[Page 244-245]
 
                  TITLE 15--COMMERCE AND FOREIGN TRADE
 
CHAPTER IX--NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT 
                               OF COMMERCE
 
PART 930_FEDERAL CONSISTENCY WITH APPROVED COASTAL MANAGEMENT PROGRAMS--Table 
of Contents
 
           Subpart C_Consistency for Federal Agency Activities
 
Sec. 930.32  Consistent to the maximum extent practicable.

    (a)(1) The term ``consistent to the maximum extent practicable'' 
means fully consistent with the enforceable policies of management 
programs unless full consistency is prohibited by existing law 
applicable to the Federal agency.
    (2) Section 307(e) of the Act does not relieve Federal agencies of 
the consistency requirements under the Act. The Act was intended to 
cause substantive changes in Federal agency decisionmaking within the 
context of the discretionary powers residing in such agencies. 
Accordingly, whenever legally permissible, Federal agencies shall 
consider the enforceable policies of management programs as requirements 
to be adhered to in addition to existing Federal agency statutory 
mandates. If a Federal agency asserts that full consistency with the 
management program is prohibited, it shall clearly describe, in writing, 
to the State agency the statutory provisions, legislative history, or 
other legal authority which limits the Federal agency's discretion to be 
fully consistent with the enforceable policies of the management 
program.
    (3) For the purpose of determining consistent to the maximum extent 
practicable under paragraphs (a)(1) and (2) of this section, federal 
legal authority includes Federal appropriation Acts if the appropriation 
Act includes language that specifically prohibits full consistency with 
specific enforceable policies of management programs. Federal agencies 
shall not use a general claim of a lack of funding or insufficient 
appropriated funds or failure to include the cost of being fully 
consistent in Federal budget and planning processes as a basis for being 
consistent to the maximum extent practicable with an enforceable policy 
of a management program. The only circumstance where a Federal agency 
may rely on a lack of funding as a limitation on being fully consistent 
with an enforceable policy is the Presidential exemption described in 
section 307(c)(1)(B) of the Act (16 USC 1456(c)(1)(B)). In cases where 
the cost of being consistent with the enforceable policies of a 
management program was not included in the Federal agency's budget and 
planning processes, the Federal agency should determine the amount of 
funds needed and seek additional federal funds. Federal agencies should 
include the cost of being fully consistent with the enforceable policies 
of management programs in their budget and planning processes, to the 
same extent that a Federal agency would plan for the cost of complying 
with other federal requirements.
    (b) A Federal agency may deviate from full consistency with an 
approved management program when such deviation is justified because of 
an emergency or other similar unforeseen circumstance (``exigent 
circumstance''), which presents the Federal agency with a substantial 
obstacle that prevents complete adherence to the approved program. Any 
deviation shall be the minimum necessary to address the exigent 
circumstance. Federal agencies shall carry out their activities 
consistent to the maximum extent practicable with the enforceable 
policies of

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a management program, to the extent that the exigent circumstance 
allows. Federal agencies shall consult with State agencies to the extent 
that an exigent circumstance allows and shall attempt to seek State 
agency concurrence prior to addressing the exigent circumstance. Once 
the exigent circumstances have passed, and if the Federal agency is 
still carrying out an activity with coastal effects, Federal agencies 
shall comply with all applicable provisions of this subpart to ensure 
that the activity is consistent to the maximum extent practicable with 
the enforceable policies of management programs. Once the Federal agency 
has addressed the exigent circumstance or completed its emergency 
response activities, it shall provide the State agency with a 
description of its actions and their coastal effects.
    (c) A classified activity that affects any coastal use or resource 
is not exempt from the requirements of this subpart, unless the activity 
is exempted by the President under section 307(c)(1)(B) of the Act. 
Under the consistent to the maximum extent practicable standard, the 
Federal agency shall provide to the State agency a description of the 
project and coastal effects that it is legally permitted to release or 
does not otherwise breach the classified nature of the activity. Even 
when a Federal agency may not be able to disclose project information, 
the Federal agency shall conduct the classified activity consistent to 
the maximum extent practicable with the enforceable policies of 
management programs. The term classified means to protect from 
disclosure national security information concerning the national defense 
or foreign policy, provided that the information has been properly 
classified in accordance with the substantive and procedural 
requirements of an executive order. Federal and State agencies are 
encouraged to agree on a qualified third party(ies) with appropriate 
security clearance(s) to review classified information and to provide 
non-classified comments regarding the activity's reasonably foreseeable 
coastal effects.