[Code of Federal Regulations]

[Title 15, Volume 3]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 15CFR930.32]



[Page 243-244]

 

                  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



[[Page 244]]



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.