SECTION 30.40. Consistency Certifications for Outer Continental Shelf (OCS) Exploration, Development, and Production Activities

(a) Review of a Consistency Certification for an OCS Plan. When reviewing an OCS plan for consistency with the goals and enforceable policies of the CMP, the GLO shall follow the requirements and procedures provided in 15 CFR Part 930, subpart E and 43 USC §§1331-1356(a). The federal regulations, 15 CFR Part 930, subpart E, provide that OCS plans submitted to the U.S. Secretary of the Interior for OCS exploration, development and production, and all associated federal licenses and permits described in detail in such OCS plans, shall be subject to federal consistency review.

(b) Consistency Certification. Any person, as defined at 15 CFR §930.72, submitting any OCS plan to the Secretary of the Interior or designee shall provide a copy of the plan along with a consistency certification that states as follows: "The proposed activities described in detail in this plan comply with Texas' approved coastal management program and will be conducted in a manner consistent with the program." The Secretary of the Interior or designee shall provide the plan and consistency certification to the GLO. See 15 CFR §930.76.

(c) Request for Information. The GLO's six (6) month review period on a consistency certification for an OCS plan begins on the date the GLO receives the information required at 15 CFR §930.76, and all the necessary data and information required at 15 CFR §930.58(a). Pursuant to 15 CFR §930.60(a), within thirty (30) days of an incomplete submission, the GLO shall inform the person submitting the OCS plan that the GLO six (6) month review period will commence on the date of receipt of the missing consistency certification or necessary data and information. The GLO may waive the requirement that all necessary data and information described in 15 CFR §930.58(a) be submitted before commencement of the State agency's six (6) month consistency review. In the event of such a waiver, the requirements of 15 CFR §930.58(a) must be satisfied prior to the end of the six (6) month consistency review period or the GLO may object to the consistency certification for insufficient information.

(d) Consolidation of Related Authorizations. The GLO encourages persons submitting OCS plans to consolidate related federal licenses and permits that are not required to be described in detail in the plan but which are subject to GLO review. This consolidation will minimize duplication of effort and unnecessary delays by providing for review of all licenses and permits relating to an OCS plan at the same time. See 15 CFR §930.81.

(e) Public Participation. The GLO shall provide for public participation consistent with the provisions of 15 CFR §930.77. After the close of the public comment period on the OCS plan's consistency certification, the GLO will consider comments received in response to the public notice. The GLO may extend the public comment period or schedule a public meeting on the consistency certification.

(f) Referral to Commissioner. If three committee members agree there is a significant unresolved issue regarding the OCS Plan's consistency with the CMP goals and enforceable policies relating to any part of the OCS plan, the matter may be referred to the commissioner for an elevated consistency review. To refer the matter to the commissioner, three committee members must submit the request for referral to the CMP coordinator in writing. The CMP coordinator will immediately notify the committee members, applicant, federal agency, and other affected parties that the matter has been elevated for commissioner review. The referral letter or email should identify any enforceable policies that are unresolved and address any potential impacts.

(g) Commissioner Review. The commissioner shall review any part of an OCS plan relating to federal agency actions required to authorize proposed activities described in detail in the OCS plan which any three committee members agree presents a significant unresolved issue regarding consistency with the CMP goals and enforceable policies. Following referral for review, the commissioner shall consider:

(1) oral or written testimony received during the comment period. The commissioner may reasonably limit the length and format of the testimony and the time at which it may be received;

(2) applicable CMP goals and enforceable policies;

(3) information submitted by the federal agency or person; and

(4) other relevant information to determine whether the proposed action is consistent with the CMP goals and enforceable policies.

(h) Review Period. If the GLO has not issued a decision with respect to a matter referred under the provisions of this section, within three (3) months from the date when the GLO received the administratively complete consistency certification, then the GLO staff shall notify the person submitting the plan, the Secretary of the Interior, and the OCM Director of the status of the review and the basis for further delay. See 15 CFR §930.78. The GLO's review period is up to six (6) months but a concurrence may be presumed at three (3) months if GLO has taken no action.

(i) Presumption of Concurrence. If GLO does not act on an OCS plan within three (3) months of the date when the GLO receives an administratively complete consistency certification, then the GLO's concurrence with the consistency certification shall be conclusively presumed. See 15 CFR §930.78. If the GLO provides a status of review letter within three (3) months and continues its review, a concurrence may be presumed at six (6) months. If the GLO issues a concurrence or concurrence is conclusively presumed, then the person submitting the plan shall not be required to submit additional consistency certifications to the GLO for the individual federal authorizations that will be required to authorize the activities described in detail in the OCS plan as set out in 15 CFR §930.79.

(j) Commissioner Objection. If the commissioner objects to a consistency certification related to a federal license or permit activity authorizing an activity described in detail in an OCS plan, the federal agency shall not act on the federal action when it is proposed, except as provided in the appeals process established in the 15 CFR §§930.120 et seq. The contents of the commissioner's objection will conform to the requirements set out in 15 CFR §930.79 and will notify the person of its appeal rights to the U.S. Secretary of Commerce.

Source Note: The provisions of this §30.40 adopted to be effective July 10, 2023, 48 TexReg 3677