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Final Guidance for the Coastal and Estuarine Land Conservation Program

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

 
[Federal Register: June 17, 2003 (Volume 68, Number 116)]
[Notices]
[Page 35860-35869]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jn03-40]

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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[Docket No. 030530140-3140-01; I.D. 060903D]

Final Guidance for the Coastal and Estuarine Land Conservation Program

AGENCY: National Ocean Service, National Oceanic and Atmospheric 
Administration (NOAA), Commerce

SUMMARY: Notice is hereby given of the availability of Final Guidelines 
for the Coastal and Estuarine Land Conservation Program (CELCP). The 
Fiscal Year 2002 Appropriations Act for the Departments of Commerce, 
Justice and State directed the Secretary of Commerce to establish a 
Coastal and Estuarine Land Conservation Program ``for the purpose of 
protecting important coastal and estuarine areas that have significant 
conservation, recreation, ecological, historical, or aesthetic values, 
or that are threatened by conversion from their natural or recreational 
state to other uses,'' giving priority to lands which can be 
effectively managed and protected and which have significant ecological 
value. The law further directed the Secretary to issue guidelines for 
this program delineating the criteria for grant awards and to 
distribute funds in consultation with the States' Coastal Zone 
Managers' or Governors' designated representatives based on 
demonstrated need and ability to successfully leverage funds.
    These guidelines: outline a planning process for states to identify 
the conservation needs and priorities within each state; provide the 
information necessary for eligible coastal states to develop land 
conservation plans and nominate projects to a national competitive 
selection process; and delineate the criteria for grant awards.
    The Final Guidance for the Coastal and Estuarine Land Conservation 
Program, published below, can also be found on NOAA's website at 
http://www.ocrm.nos.noaa.gov/landconservation.html Exit Disclaimer or may be 
obtained upon request via the contact information listed below.

FOR FURTHER INFORMATION CONTACT: Elaine Vaudreuil, NOAA's Ocean 
Service, Office of Ocean and Coastal Resource Management, 1305 East-
West Highway (N/ORM), Silver Spring, MD 20910; tel. 301-713-3155, 
extension 103; e-mail: Elaine.Vaudreuil@noaa.gov.

SUPPLEMENTARY INFORMATION: (1) Program Authorities: Specific authority 
for this Announcement is found in 16 U.S.C. 1456d. (2) Federal Domestic 
Assistance Catalog Number 11.419 Coastal Zone Management Program 
Administration

Response to Comments

    NOAA made the draft guidelines available for a 30-day public 
comment period and received 20 sets of comments. The comments ask NOAA 
to:
    - clarify which elements of the guidelines would apply to earmarks 
versus competitive grants;
    - be flexible throughout the grant process to account for the 
nature of real estate transactions and private, willing seller 
landowners;
    - enable local governments or watershed organizations to apply 
directly to the national competitive process;
    - make non-governmental organizations eligible to apply for grants 
and hold title to land;
    - clarify that the definition of ``acquisition'' includes other 
conservation options, such as the purchase of conservation easements;
    - clarify that all land secured through CELCP be held in public 
ownership and provide conservation in perpetuity;
    - clarify the relevance of the term ``Project Areas'' and how it 
differs from ``priority areas'', and ``types of land;
    - include timelines or deadlines, as well as instructions for 
applying for funds, such as the anticipated number of grants and their 
amounts, in order to solicit meaningful project applications;
    - clarify eligibility and the application process for planning 
funds;
    - seek the lead agency's approval before making direct grants to 
other state agencies or local governments;
    - lower the percentage of required non-federal match; clarify 
whether planning funds require non-federal match;
    - clarify a waiver of match for U.S. insular areas for projects up 
to $200,000, in accordance with 48 U.S.C. 1469a(d);
    - exercise its discretion to waive the match for underserved 
communities in specific circumstances, such as areas without public 
access;
    - clarify whether the 5 percent limit on administrative costs 
refers to state, Federal, or combined program administration, and 
address state indirect costs that are incurred for grant 
administration;
    - extend the 2-year period for land stewardship costs to a 5-year 
period and limit costs to 5 percent of the total grant award;
    - make land acquisition the only eligible use of funds under the 
CELCP, and not program administration and stewardship costs, but rather 
allow these costs as state match contributions;

[[Page 35861]]

    - enable states to use lands anywhere in the states' coastal zone 
as match, rather than lands in ``...the vicinity of the property...or 
in the same project area ..'';
    - not require that lands used as match also contain deed 
restrictions similar to the land directly acquired under this program;
    - prohibit ``the acquisition of land for active recreation such as 
sports facilities, playgrounds or like uses.;
    - address how pre-existing uses would be handled;
    - not make too onerous the requirement for ``a strategy for long-
term stewardship'' for each project, but rather ensure that the 
restrictions on future use of the property noted in 2.6(a) of the 
guidance are included as part of the land transaction;
    - give greater recognition in the national ranking and selection 
criteria to: inter-state cooperation in developing state plans; to 
priorities within National Estuary Program comprehensive plans; and to 
projects within project areas that have higher population densities or 
urbanized areas;
    - clarify whether an ``assessment of priority land conservation 
needs'', as described in section 1.3 is included among plan components 
at section 3.1;
    - base the project identification process on scientific assessments 
of habitat needs;
    - allow plans developed through other planning and public review 
processes, such as approved coastal management programs or watershed 
conservation plans, to be ``adopted'' or ``recognized'' by the state 
for purposes of a state's CELC Plan;
    - add restoration plans to the types of plans to be considered in 
developing CELC plans;
    - remove the criterion in section 3.1.b that requires projects to 
establish or help to ``establish conservation corridors and/or 
linkages'' as an overriding national project selection criteria;
    - clarify that the ``letter of intent'' reflects an expectation of 
continuing negotiations leading to a purchase agreement;
    - emphasize negotiation with willing sellers, and avoid projects 
that require condemnation;
    - ask applications to note adjacent land uses on the project 
location map;
    - clarify which standards are to be used for appraisals;
    - allow cost estimates at the project application stage and not 
limit project applications to properties with letters of intent or 
contracts;
    - reappoint and reconstitute the national peer review panel 
annually and identify alternates to ensure that conflicts of interest 
can be addressed without delay;
    - ensure geographic representation of coastal regions on the peer 
review panel and in the distribution of project funds;
    - allow eligible entities to apply for grants for projects that 
have already closed during the prior year;
    - administer CELC grants efficiently, recognizing that states must 
act on a timely basis to take advantage of conservation opportunities;
    - clarify how resources will be allocated to each state on an 
annual basis, eg. through a formula based on shoreline mileage; and
    - consider that requiring ``...maps of ``project areas'' that 
identify the State's priority areas...'' is too specific for planning 
purposes and may cause concern.
    In response to these comments, in the final guidelines, NOAA has:
    - added language to clarify which elements of the guidelines apply 
to earmarks versus competitive grants;
    - provided more flexibility regarding when certain documents must 
be submitted and with regard to reimbursement of land acquisition costs 
in certain cases;
    - clarified that the term ``acquisition'' includes the purchase of 
conservation easements;
    - clarified that easements would be held in public ownership, as 
well as donated lands that are counted toward the non-federal match;
    - revised the definition of ``project areas'' to clarify its 
meaning and relationship to other terms, and not intended to identify 
specific properties.
    - clarified that the state's lead agency is eligible to apply for 
planning funds;
    - clarified that NOAA will consult with the state's lead agency 
prior to making direct grants to other state agencies or local 
governments;
    - clarified a waiver of match for U.S. insular areas for projects 
up to $200,000, in accordance with 48 U.S.C. 1469a(d);
    - addressed state indirect costs incurred for grant administration;
    - extended to 3-years the period for initial land stewardship and 
limited the costs to 5 percent of the grant award;
    - made the acquisition of land for active recreation such as sports 
facilities, playgrounds or similar uses ineligible for use of CELCP 
funds and inconsistent activities under section 2.6;
    - clarified that state CELC plans identify the need for 
conservation through acquisition;
    - clarified that plans developed through other planning and public 
review processes, such as approved coastal management programs or 
watershed conservation plans, may be incorporated into a CELC plan;
    - added restoration plans to the types of plans that may be 
considered in developing a CELC plan;
    - clarified the nature of the documentation needed to prove an 
owner's willingness to sell;
    - included identification of adjacent land uses on the project 
location map;
    - added clarification regarding the budget justification and 
documentation required in the project application, including standards 
for appraisals, and some flexibility regarding projects that must go to 
settlement before a grant award is issued;
    - clarified that NOAA will reconstitute the peer review panel 
annually and identify possible alternates; and
    - removed the criterion for conservation corridors from the list of 
national criteria, as it is not listed in statute with the other 
criteria.
    Statutory language requires 100 percent match of CELCP funds and 
distribution of funds in consultation with the States' Coastal Zone 
Manager or the Governors' designated representative. Coastal states are 
encouraged to work with other state, interstate, and local governments, 
with input from non-governmental organizations, to identify and 
nominate projects that advance the state's conservation priorities. No 
discretion is provided to NOAA by statute to waive the match for 
planning grants or for underserved communities.
    Unless otherwise provided by law, lands (or interests therein) 
acquired with Federal funds under the CELCP will be held by a public 
entity. Federal regulations that govern matching funds generally 
presume a connection between the land to be acquired and the land used 
as match, and that deed restrictions would apply to properties counted 
as match as they would to property acquired through a cash contribution 
of the non-federal share.
    Like the Forest Legacy Program, after which the CELCP was modeled, 
eligible states are to develop a plan in order to participate in the 
competitive program. NOAA encourages states that have existing plans 
that directly address land conservation priorities for portions of its 
coastal area to make use of, or even incorporate, those existing plans, 
if applicable, in a CELC plan. The program's project ranking criteria 
will address whether projects meet the national criteria and are 
included within a state CELC plan.
    NOAA will publish deadlines and guidance for project applications 
in its annual request for proposals. NOAA

[[Page 35862]]

will make every effort to make the grants process efficient, and will 
strive for geographic distribution of project funds to the extent 
possible in a merit-based competitive process.

Final Guidelines

1. General Information

1.1 Authority and Purpose for the Program
    The Department of Commerce, Justice, and State Appropriations Act 
of 2002 (Public Law 107-77), directed the Secretary of Commerce to 
establish a Coastal and Estuarine Land Conservation Program ``for the 
purpose of protecting important coastal and estuarine areas that have 
significant conservation, recreation, ecological, historical, or 
aesthetic values, or that are threatened by conversion from their 
natural or recreational state to other uses,'' giving priority to lands 
which can be effectively managed and protected and that have 
significant ecological value. The law further directed the Secretary to 
issue guidelines for this program delineating the criteria for grant 
awards and to distribute funds in consultation with the States' Coastal 
Zone Managers' or Governors' designated representatives based on 
demonstrated need and ability to successfully leverage funds. Grants 
funded under this program shall require a 100-percent match from other 
sources. The authority for this program is codified at 16 U.S.C. 1456d.
    The National Oceanic and Atmospheric Administration will work with 
the coastal states and territories through formal relationships 
established through its role in implementing the Coastal Zone 
Management Act of 1972, as amended (16 USC 1451 et seq.) (CZMA), to 
carry out this program. The CZMA highlights the importance of coastal 
and estuarine areas and contains policies related to the ecological, 
conservation, recreational, and aesthetic values of coastal areas.
1.2. Purpose of the Guidelines
    These guidelines establish the eligibility, procedural, and 
programmatic requirements for participation in the Coastal and 
Estuarine Land Conservation Program (CELCP), authorized by the FY 2002 
Appropriations Act. As required by the Act, these guidelines delineate 
the criteria for all financial assistance awards under the CELCP. These 
guidelines outline a three-stage process for competitive funding under 
the program: development of a state coastal and estuarine land 
conservation plan; a process for identifying and ranking qualified 
projects within the state and nominating them to a national competitive 
selection process annually; and a process for conducting peer review 
and selection of projects at the national level. State participation in 
this program is voluntary. Coastal states that choose to participate in 
the CELCP, including eligible project applicants, shall use the 
guidelines when developing state conservation plans, proposing or 
soliciting land acquisition projects, applying for funds, and carrying 
out selected projects under this program.
1.3 Definition of Terms
    Appropriations Act or Act. The Departments of Commerce, Justice, 
and State, the Judiciary, and Related Agencies Appropriations Act, 2002 
(P.L. 107-77).
    CELCP. The Coastal and Estuarine Land Conservation Program 
established by these guidelines pursuant to the Act.
    Coastal and Estuarine Areas. Those areas within a coastal state 
that are: part of the state's coastal zone, as designated in the 
state's federally approved coastal management program under the CZMA or 
within the state's coastal watershed boundary as described in NOAA's 
Coastal Zone Boundary Review (October 1992). The coastal watershed 
boundary is defined: for estuarine drainage areas by the inland 
boundary of those 8-digit USGS hydrologic cataloguing units that 
contain the head of tide, and; for the Great Lakes region or those 
portions of watersheds along the marine coast that drain directly to 
marine waters by those cataloguing units that are located adjacent to 
the coast.
    Coastal and Estuarine Land Conservation Plan or CELC Plan. A plan, 
to be developed by each coastal state in order to participate in the 
program, that provides an assessment of priority land conservation 
needs and clear guidance for nominating and selecting land conservation 
projects within the state.
    Coastal State(s). As defined in section 304(4) of the Coastal Zone 
Management Act (16 USC section 1453(4)), ``coastal state(s)'' means a 
state of the United States in, or bordering on, the Atlantic, Pacific, 
or Arctic Ocean, the Gulf of Mexico, Long Island Sound, or one or more 
of the Great Lakes. The term also includes Puerto Rico, the Virgin 
Islands, Guam, the Commonwealth of the Northern Mariana Islands, and 
American Samoa.
    CZMA. The Coastal Zone Management Act of 1972, as amended (16 USC 
1451 et seq.).
    Land Acquisition. Acquisition of real property, or interests 
therein, by fee title, lease, easement, or any other method consistent 
with applicable State law or regulation.
    NERR or Reserve. A National Estuarine Research Reserve designated 
pursuant to section 315 of the CZMA.
    NOAA. The National Oceanic and Atmospheric Administration, within 
the Department of Commerce.
    OCRM. The Office of Ocean and Coastal Resource Management, within 
the NOAA National Ocean Service.
    Project Areas. Discrete areas to be identified within a CELC Plan 
that describe the state's priority areas for conservation based on 
national and state criteria, representing the values to be protected 
through the program and areas threatened by conversion. Project areas 
may consist, for example, of: geographic areas or habitat types 
identified by a state coastal management plan as areas of concern; 
significant areas within other coastal, estuarine, or watershed 
management plan(s) that may be priority areas for conservation; or 
areas that provide linkages or corridors among conservation areas 
within a geographical area.
    Secretary. The Secretary of Commerce.
    State lead agency. The agency or entity responsible for 
coordinating the establishment and implementation of the CELCP at the 
state level. The lead agency will be presumed to be the lead agency 
designated for implementing the state's coastal management program, as 
approved pursuant to the CZMA, unless otherwise designated by the 
Governor. If a state's coastal management program does not wish to 
assume the lead role, the Governor may designate as the lead agency 
another state agency with authority to plan, acquire or manage land for 
conservation purposes.

2. Eligibility Requirements

2.1 Who May Participate in the CELCP
    Coastal states with approved coastal zone management plans or 
National Estuarine Research Reserves are eligible to participate in the 
CELCP. State participation is voluntary, and states may choose to 
participate by developing a Coastal and Estuarine Conservation Plan for 
approval by NOAA. The state lead agency will be responsible for 
coordinating the establishment and implementation of the CELCP at the 
state level.
2.2 Who May Submit a Project Application to the Competitive Process
    Eligible coastal states that have submitted, and received approval 
of, a Coastal and Estuarine Land Conservation Plan, may submit

[[Page 35863]]

proposals to NOAA for federal funding under this program, provided that 
appropriated funds are available for competitive awards. The state lead 
agency may solicit, and include in their application, project proposals 
from additional state agencies, or local governments as defined at 15 
CFR 24.3, or entities eligible for assistance under section 306A(e) of 
the CZMA (16 USC 1455a(e)), provided that each has the authority to 
acquire and manage land for conservation purposes.
    The state lead agency will be responsible for: soliciting projects 
that are consistent with priorities outlined in the state's plan, 
reviewing them for completeness, prioritizing them according to state 
criteria, and nominating projects to the national selection process. 
States are encouraged to submit proposals from multiple agencies as a 
consolidated package to NOAA. The state will also be responsible for 
ensuring that allocated funds are used for the purposes of and in a 
manner consistent with this program.
2.3 Qualifying Projects
    To be eligible for funding under the CELCP, a project must:
    - be located in a coastal or estuarine area included within a 
state's approved coastal and estuarine land conservation (CELC) plan 
and meet the national criteria described in section 3.1.b.;
    - match Federal CELCP funds with non-federal funds at a ratio of 
1:1;
    - be held in public ownership (fee simple or conservation 
easements) and provide conservation in perpetuity; and
    - provide for access to the general public or other public benefit, 
as appropriate and consistent with resource protection.
2.4 Who May Receive Funds and Hold Title to Land
    NOAA may make financial assistance awards to eligible coastal 
states, including the state's lead agency for implementing the CELCP, 
the state's coastal management program or its National Estuarine 
Research Reserve(s). The recipient may in turn allocate grants or make 
sub-awards to other state agencies, local governments as defined at 15 
CFR 24.3, or entities eligible for assistance under section 306A(e) of 
the CZMA (16 USC 1455a(e)) to carry out approved projects. NOAA may, at 
its discretion and in consultation with the applicable coastal state, 
make grants directly to any of these eligible entities in order to 
expedite completion of an approved project. The recipient, or other 
appropriate public agency designated by the recipient, will hold title 
to the land, or interests in land, in perpetuity. NOAA will not make 
grants under the CELCP to non-governmental organizations unless 
otherwise directed by Congress.
2.5 Uses of CELCP Funds
    The purpose of funding under the CELCP is to protect important 
coastal and estuarine areas with significant values or that are 
threatened by conversion, and that can be effectively managed. NOAA has 
outlined the following uses of CELCP funding that are consistent with 
these purposes, as well as some that are not considered to be 
consistent.
    a. Eligible uses. CELCP funds may be used for the following 
purposes:
1. State Planning
    - Development of CELC plans to carry out this program. Each 
eligible state's lead agency may receive up to a total of $50,000 for 
this purpose, which must be matched with non-federal funds at a ratio 
of 1:1 through cash and/or in-kind contributions.
2. Program Administration
    - Administration of the program, including such direct or indirect 
costs as salaries and benefits of staff directly involved in program 
planning, implementation, project review, etc., that shall not exceed 5 
percent of the amount appropriated to the Secretary each year. If a 
state proposes indirect costs as part of an application, the total 
dollar amount of the proposed indirect costs must not exceed the 
indirect cost rate negotiated and approved by a cognizant Federal 
agency.
3. Acquisition Projects
    - Acquisition of properties or interests in properties from willing 
sellers, provided that the terms and conditions will ensure that the 
property will be administered for conservation in perpetuity, including 
direct expenses relating to the acquisition of lands and interests in 
lands acquired under the authority of the CELCP; and
    - Certain initial costs for land stewardship, not to exceed 5 
percent of the award and not to exceed 3 years or the duration of award 
period, to allow for signage, public safety, or other stewardship 
purposes.
    b. Ineligible uses. The Federal share of CELCP funds may not be 
used for the following purposes:
    - Funding long-term operations, maintenance, and management of the 
land;
    - Construction of buildings, boat launching facilities, docks or 
piers, shoreline armoring, or other facilities;
    - Research;
    - Acquisition of lands, or interests in lands, that completely 
restrict access to specific persons (e.g. non-residents of a 
community);
    - Acquisition of lands, or interests in lands, to comply with 
mandatory or compensatory mitigation for recent or pending habitat 
losses resulting from the actions of agencies, organizations, companies 
or individuals;
    - The sole or primary purpose of enforcing fish, wildlife, or other 
regulations, except when necessary for the accomplishment of approved 
project purposes; and
    - Acquisition of land for active recreation, such as sports 
facilities, water parks, playgrounds, or similar uses.
    Some of these purposes are allowable under the non-federal matching 
share. Refer to section 2.7(b), Source of Matching Funds, for 
additional information.
2.6 Ownership, Use and Long-term Stewardship
    a. The title of property or interests in property will be held in 
perpetuity by the grant recipient or other appropriate public agency 
designated by the recipient. As a condition of any grant award, NOAA 
will require that the recipient, or the designated public agency, 
register and furnish to NOAA a lien, covenant, or other appropriate 
notice of record to advise that the property has been acquired or 
improved in whole or in part with Federal financial assistance funds 
(pursuant to 15 CFR 24.31) and assurances that the land will be held 
for conservation in perpetuity. The terms and conditions specified in 
conservation easements must also be consistent with the purposes of the 
CELCP.
    b. In general, lands acquired with CELCP funds will allow access to 
the general public. However, access may be limited or controlled in an 
equitable manner for resource protection, public safety, or for other 
reasonable cause. User fees should not be charged to access lands 
acquired through this program. However, if user fees are charged, they 
should comply with any applicable state standards for user fees. In 
such cases, all income or other revenues derived from the fees shall be 
used for the maintenance or management of the property.
    c. The property shall be managed in a manner that is consistent 
with the purposes for which it was entered into the program and shall 
not convert to other uses. As a condition of the grant award, a 
strategy for long-term stewardship must be developed for each

[[Page 35864]]

project that identifies the entity(ies) responsible for ongoing 
stewardship, including financial or staff support, and monitoring of 
conservation easements or ongoing activities to ensure that they are 
consistent with long-term conservation.
    Activities that may be considered to be consistent with 
conservation purposes include: resource protection; restoration and 
enhancement, such as vegetative erosion control or restoration of 
natural water flow to the area; recreational activities, such as: 
hiking, hunting, and fishing; access for swimming, canoeing, kayaking; 
and research and educational activities. Construction of facilities on 
a minor scale, such as restrooms or boardwalks, to facilitate these 
activities and/or for the purpose of minimizing harm to coastal 
resources due to public access and recreation may be allowed depending 
on the proposed use of the property and the site environment.
    Activities that are considered to be inconsistent include: active 
agricultural or aquaculture production; shoreline armoring or other 
hard erosion control structures; construction or expansion of roads, 
buildings or facilities except as noted above, or such facilities for 
active recreation as sports facilities, water parks, playgrounds, or 
similar uses.
    d. Non-governmental organizations, corporations, or individuals may 
participate in the acquisition and long-term stewardship of lands 
through this program, except as provided under sections 2.2 and 2.4 of 
these guidelines.
    e. Leasing or renting of the property or interest in property 
acquired through the CELCP to a third party is prohibited unless 
specifically authorized by NOAA. The recipient agrees that any 
authorized arrangement for leasing or renting property involved in the 
project must be: consistent with the authorized general and special 
purpose of the award; for adequate consideration; and consistent with 
applicable Department of Commerce requirements concerning, but not 
limited to, nondiscrimination and environmental compliance. All income 
or other revenues derived from an approved lease or rent arrangement 
shall be used to maintain or manage the property.
    f. Pre-existing uses on the property must be identified as part of 
the project application. NOAA will review such uses for potential 
impacts and to determine whether they are consistent with the purposes 
of the CELCP. Applicants may wish to consider protecting land that 
contains pre-existing uses through a conservation easement, rather than 
through fee simple acquisition. If a project is approved with pre-
existing uses, such uses may not be expanded or converted to other uses 
without prior approval of NOAA.
    g. If the property or interest in the land acquired with CELCP 
funds is sold, exchanged, divested, or converted to other uses that are 
inconsistent with the purposes for which it was acquired without prior 
approval of NOAA, the recipient must return to NOAA the full amount of 
the Federal share of funds for re-distribution in the CELCP grant 
process. In some cases, at the recipient's request, NOAA may approve 
the disposition of the property and issue instructions to sell the 
property. In such cases, the correct value to be returned will be 
calculated by applying the Federal share of participation in the cost 
of the original purchase to the proceeds of the sale after deduction of 
any actual and reasonable selling expenses.
2.7. Cost-sharing requirements
    a. Matching requirement. Federal funds awarded under this program 
shall be matched with funds from non-federal sources on a 1:1 basis. 
The coastal state is responsible for ensuring that the full amount of 
the matching requirement is provided, particularly when the non-federal 
share includes contributions from other agencies, groups or 
individuals. Notwithstanding any other provision herein, and in 
accordance with 48 U.S.C. 1469a(d), the Program shall waive the 
requirement for local matching funds for any project under $200,000 
(including in-kind contribution) to the governments of Insular Areas, 
defined as the jurisdictions of the U.S. Virgin Islands, Guam, American 
Samoa, and the Commonwealth of the Northern Mariana Islands.
    b. Source of matching funds. The non-federal share of funding may 
be derived from state, local, non-governmental or private sources in 
the form of cash or the value of non-monetary or in-kind contributions, 
such as the value of donated lands or interests therein, or services 
such as on-site remediation, restoration, enhancement, or donated labor 
and supplies, provided that the in-kind contributions are necessary and 
reasonable to accomplish the objectives of the project. Such in-kind 
contributions must be identified in the project application, completed 
within the financial assistance award period, and documented as part of 
the completed project. Any land used as match must be located within 
the vicinity of the property being acquired, in the same project area 
identified in the state's plan, or be substantially related in terms of 
conservation values or objectives, and must meet the eligibility 
criteria, ownership and stewardship conditions described in sections 
2.3 through 2.6. The value of land used as match must be documented 
with the grant application, and must reflect nationally recognized 
appraisal standards, including, to the extent appropriate, the Uniform 
Appraisal Standards for Federal Land Acquisition. (http://www.usdoj.gov/
enrd/land-ack/). Exit Disclaimer
    No funds or in-kind contributions from Federal or non-federal 
sources, including the value of donated lands or services, that have 
been previously used to satisfy the matching requirements of this 
program or that have been or will be counted or used to satisfy another 
Federal grant, can be counted toward the non-federal matching share. 
Unless otherwise provided by law, the value of property or interests in 
property that were acquired with Federal funding may not be used as 
non-federal match.
    See 15 CFR 24.24 Matching or Cost-Sharing (Uniform Administrative 
Requirements for Grants and Cooperative Agreements to State and Local 
Governments) for determining the value of in-kind contributions.
    c. Banked match. States may apply the value of land or in-kind 
services accrued up to 3 years prior to submission of the grant 
application toward the non-federal share of funding. Such ``banked 
match'' is subject to the same terms described under section 2.7.b. 
above.

3. State Coastal and Estuarine Land Conservation Plans

3.1 Development of CELC Plan
    In order to qualify to receive funds under this program, a coastal 
state must develop and submit to NOAA for approval, a Coastal and 
Estuarine Land Conservation Plan that provides an assessment of 
priority conservation needs and clear guidance for nominating and 
selecting land conservation projects within the state. State plans will 
be developed and submitted by the state lead agency, in conjunction 
with: the state's coastal management program (if different from the 
lead agency); any NERRs in that state; any other state or Federal 
agencies involved in coastal land acquisition, conservation, or 
management in the state; and other interested parties.
    Plans are intended to be fairly simple and concise, and may make 
use of work that has already been done in the state or region, such as 
regional, state or local watershed protection, restoration or land 
conservation plans. A state may incorporate existing plans, or portions 
thereof, by reference into a CELC plan. States are encouraged to 
consider

[[Page 35865]]

conservation needs on a multi-state or regional scale, and to work with 
neighboring states where appropriate for the conservation of coastal 
and estuarine resources within the region. State plans must be 
developed through a public process, which would include a public 
scoping process and comment period. If a state CELC plan incorporates 
existing plans, or elements thereof, that were developed and vetted 
through a public review process, the state may choose to seek comment 
on whether those plans or elements should be incorporated into the CELC 
plan, rather than seeking comment on the substance of those plans or 
elements.
    a. State CELC plans must include the following information:
    - A map or description of the geographic extent of coastal and 
estuarine areas within the state, as defined for the purposes of the 
CELCP;
    - A description of the types of lands or values to be protected 
through the program and the need for conservation through acquisition;
    - Identification of ``project areas'' that represent the state's 
priority areas for conservation, including areas threatened by 
conversion, based on state and national criteria (listed below) for the 
program;
    - A description of existing plans, or elements thereof, that are 
incorporated into this plan;
    - A list of state or local agencies, or types of agencies, that are 
eligible to hold title to property acquired through the CELCP;
    - A description of the state's process for reviewing and 
prioritizing qualified proposals for nomination to the national 
selection process. The vetting process should, at a minimum, involve 
representatives from the state's coastal zone management program, 
NERR(s), and any other agencies or entities that the state considers 
appropriate; and
    - A description of public involvement and interagency coordination 
that occurred during the development of the plan.
    b. State plans must address the following national criteria for 
projects and project areas as they relate to the purpose of the CELCP:
    - Protects important coastal and estuarine areas that have 
significant conservation, recreation, ecological, historical, or 
aesthetic values, or that are threatened by conversion from their 
natural or recreational state to other uses;
    - Gives priority to lands which can be effectively managed and 
protected and that have significant ecological value;
    - Directly advances the goals, objectives, or implementation of the 
state's coastal management plan or program, NERR management plans 
approved under the CZMA, national objectives of the CZMA, or a regional 
or state watershed protection plan involving coastal states with 
approved coastal management plans; and
    - Is consistent with the state's approved coastal management 
program.
3.2 Approval of Plans
    The Assistant Administrator for Ocean Services and Coastal Zone 
Management or his/her designee, shall be the approving official for 
plans submitted to NOAA under this program. Upon approval of its plan, 
a state will be eligible to receive competitive funding under the 
CELCP.
3.3 Update of Plans
    States must update their CELC plans at least once every 5 years to 
reflect changes that have taken place within the state or region and 
submit the updated plans to OCRM.

4. Application, Review and Ranking Process

4.1 State Nomination and Selection Process
    a. Solicitation of Projects. Based on notification from NOAA of the 
availability of funding to implement this program in any given year, 
states with approved CELC plans may notify and solicit project 
applications from qualified entities. States may, at their discretion, 
focus their annual project solicitation toward specific priorities or 
areas identified in their approved CELC plan.
    Based on the requirements of the state's solicitation for project 
applications, eligible applicants should submit proposals to the 
state's lead agency. A project proposal that includes several separate 
and distinct phases may be submitted in phases, but any succeeding 
phases must compete against other proposals in the year submitted.
    b. State Review and Prioritization
    i. Proposal acceptance. The state lead agency determines whether a 
proposal should be accepted for consideration on the basis that it is 
complete and eligible under the criteria identified in section 2. If 
the application is incomplete, the lead agency may provide an 
opportunity for applicants to submit any information that is missing.
    ii. Proposal review and ranking. The state lead agency reviews and 
prioritizes project applications through the process described in its 
CELC plan. Projects should be ranked according to the degree to which 
it meets the state's CELC plan. A list of prioritized projects is then 
submitted to NOAA for consideration at the national level.
4.2. Information Required in Project Applications to NOAA
    Applications submitted to NOAA for the national competitive process 
must contain the following:
    a. A completed and signed Project Application Checklist (Appendix 
B). The checklist addresses some of the information requested in items 
b. through f., below. NOAA may modify this checklist as needed to 
effectively implement the project application and selection process;
    b. Project Description. A statement that describes:
    - The nature of the project, including acreage and types of 
habitats or land values to be protected, the legal rights to be 
acquired (i.e., fee title or easement), how the funds (Federal and non-
federal) will be used, and conversion threats to the property, as well 
as a description of these same characteristics for any property that 
will be used as match;
    - How the proposed project meets the state and national criteria 
and its expected benefits in terms of coastal and estuarine land 
conservation;
    - Any pre-existing uses of the property, the nature of those uses, 
and whether those uses will continue after acquisition;
    - Discrete benchmarks for completing the project within a specified 
time period. These benchmarks should indicate whether the project is 
``ready to go,'' has any deadlines associated with it, and whether the 
project is likely to be completed within the award period;
    - The types of activities that would be allowed to take place on 
the land and a strategy for long-term stewardship, including support 
for long-term operations, such as maintenance or enforcement against 
illegal uses; and
    - Whether this project has been submitted in application for other 
sources of Federal funding, and if so, which Federal program(s) and 
year(s).
    c. Project Location. Two maps, as follows:
    - A map of the state or coastal county showing the general location 
of the project;
    - A map of the project site, which shows the location and extent of 
the proposed acquisition, and its relationship to significant natural 
features (slope, wetlands, dunes, floodplains, access points, etc.), as 
well as adjacent land uses.
    d. Project Budget and Justification of Proposed Costs/Appraisal.

[[Page 35866]]

    The project budget must include a breakdown of the following costs, 
as applicable, by category -- salary, fringe benefits, travel, 
equipment, supplies, contractual, construction, other. (Note: Use of 
Standard Form 424A is suggested as it provides a model template for 
this information, and will be required in the grant application package 
for all projects that are selected for funding.) The total budget must 
reflect the 1:1 match required by statute. For information on what may 
be counted as the non-federal matching share, refer to section 2.7. 
Applicants wishing approval of pre-award costs should include such a 
request in their application to NOAA and identify the costs, the time 
period in which they occurred, and a justification for their need as 
associated with the project. For information regarding pre-award costs, 
refer to section 5.1.b.
    The negotiated price of the property, or interest in property, 
should be based on the fair market value determined by an independent 
appraisal conducted by a state-approved appraiser. Before funds can be 
disbursed to the grant recipient for purchase of a property, or 
interest in property, using CELCP funds, the applicant must obtain and 
submit the appraisal to NOAA (refer to section 4.4.b.) Independent 
appraisals must reflect nationally recognized appraisal standards, 
including, to the extent appropriate, the Uniform Appraisal Standards 
for Federal Land Acquisition, (http://www.usdoj.gov/enrd/land-ack/). 
Exit Disclaimer
    If an appraisal has been completed at the time of application and 
the applicant wishes to pursue the acquisition at a price above the 
appraised value, the applicant will need to demonstrate reasonable 
effort to negotiate at the appraised value and submit written 
justification for the higher price based on reasonableness, prudence, 
public interest, additional or updated appraisals, estimated 
condemnation/trial costs, and/or valuation.
    If an appraisal is not available at the time the project 
application is submitted, the applicant may submit a good-faith 
estimate of the cost for the project based on market value or agreement 
with the willing seller. However, if the project is selected for 
funding, the amount of the grant cannot exceed the estimated cost in 
the project application. An appraisal will be required at the time the 
applicant submits a formal grant application to NOAA (refer to section 
5.4). If the appraised value is higher than the estimated cost, the 
applicant will be required to make up the difference, and if that is 
not possible, the project may have to be withdrawn or terminated.
    e. Certification of Compliance with Federal Laws, Regulations and 
Policies. As part of the project application checklist (attached as 
Appendix B), the applicant must answer questions that will enable NOAA 
to determine whether a project may have an adverse impact and whether 
additional information may be required to satisfy the requirements of 
applicable Federal laws, regulations, or policies. If an Environmental 
Assessment or Environmental Impact Statement has been prepared for the 
project, attach a copy with the application. States will be responsible 
for ensuring that any project applications submitted to NOAA are 
consistent with the state's approved coastal management program and any 
applicable NERR Management Plans. Refer to section 6.0, which describes 
the applicability of requirements under Federal laws, regulations and 
policies.
    f. Documentation of Willingness or Intent to Sell. The applicant 
must submit documentation that the current owner is a willing 
participant in a process of negotiation for possible sale of property, 
or interests in property, for conservation purposes and that the 
landowner has been advised of the applicability of Public Law 91-646, 
Uniform Relocation Assistance and Real Property Acquisitions Policies 
Act of 1970 (refer to section 6.8). This documentation may be in the 
form of a letter of willingness or intent, option letter, contract, or 
other similar form. If not submitted with the project application, it 
will be required with the grant application to NOAA.
4.3 National Ranking and Selection Process
    NOAA will conduct a peer review process to prioritize and select 
among all projects nominated by states through their competitive 
process as follows:
    a. Peer review and ranking process. A national peer review panel 
that consists of at least six members will review each project 
nominated by a state. Membership of the panel will be made up of at 
least one representative from each of the following: NOAA, another 
Federal land conservation program, the state coastal resource 
management community, estuarine reserve community, and two from the 
non-governmental sector (i.e., industry, conservation community). Each 
member will rank projects according to the degree to which they meet 
national criteria and submit individual rankings to NOAA. No member may 
have a vested interest or stand to benefit from any of the proposed 
projects. Membership of the panel may be reconstituted annually, and 
NOAA may identify alternates in the event that substitutions are 
needed.
    b. Ranking criteria. Projects will be reviewed and prioritized 
according to the degree to which they meet the national criteria 
described in section 3.1b. NOAA will establish weighting factors for 
these criteria, in consultation with the coastal states, and will 
provide these ranking criteria to the states with its notification of 
availability of funding. Within these criteria, NOAA may also consider 
the availability of support for long-term management and stewardship, 
and success in leveraging other sources of funding. All ranking factors 
will be described in the annual notification.
    c. Selection of approved projects. The Assistant Administrator for 
Ocean Services and Coastal Zone Management or his/her designee will 
serve as the selecting official for projects, based on the national 
rankings as well as availability of funds. In selecting projects, NOAA 
may consider geographic distribution of projects, as well as other 
factors deemed necessary to select among similarly-ranked projects, as 
described in the annual notification. The selecting official may 
maintain and select from a contingency list, in the event that any 
approved projects fall through or are completed below the planned cost.
4.4 Grant Application to NOAA - Selected Projects
    NOAA will notify each state of projects that have been selected 
through the competitive process. For each of these projects, the state 
must submit the following materials, which, when combined with the 
original project application, will complete the application for Federal 
financial assistance. States are encouraged to consolidate multiple 
projects into one application, with each project as a separate task, 
particularly for projects that will be awarded to local governments. 
NOAA may, at its discretion and in consultation with the relevant 
coastal state, agree with the state to accept an application from, and 
make a grant directly to, an agency other than the lead agency in order 
to expedite the completion of an approved projects that will be 
implemented by that other agency.
    Grant application materials. The following materials must be 
submitted to NOAA, in order to complete the application for Federal 
financial assistance:
    a. Standard forms for Federal financial assistance. These forms can 
be

[[Page 35867]]

found at the NOAA Grants Management Web site (http://www.rdc.noaa.gov/
grants/) along with detailed application instructions.
    - Application for Federal Assistance (Standard Form 424);
    - Budget Information (Standard Form 424A);
    - Statement of Assurances (Standard Form 424B);
    - Certifications Regarding Debarment, Suspension, Drug-Free 
Workplace and Lobbying (CD-511)
    b. Appraisal. If an appraisal was not previously submitted as part 
of the project application described in section 4.2, it must be 
submitted with the grant application. Refer to section 4.2 for 
guidelines regarding the appraisal.
    c. Title opinion for the land(s) that will be purchased. The 
opinion should identify the current owner from which the land will be 
purchased, and whether there are any easements or other encumbrances on 
the land to be acquired. If there are easements or encumbrances, the 
applicant's attorney should specify the nature of these and certify 
that they would not interfere with the purposes for which the land is 
being acquired. A sample title opinion can be found at Appendix C.

5. Acceptance and Use of Funds

5.1 Allowable Costs
    a. Cost principles. Allowable grant costs are limited to costs 
necessary and reasonable to achieve the approved objectives of the 
grant and be consistent with general cost principles for grants awarded 
by Federal agencies, as contained in the Office of Management and 
Budget (OMB) Circular A-87 ``Cost Principals for State, Local, and 
Indian Tribal Governments,'' which will be incorporated into the grant 
award. A copy of OMB Circular A-87 can be found at 
http://www.whitehouse.gov/omb/grants/. Exit Disclaimer
    b. Pre-award costs. If an applicant incurs costs before the 
effective date of the grant, they do so at their own risk. Pre-award 
costs cannot be reimbursed except as approved by NOAA, although they 
may be counted as match. When approved, pre-award costs may include 
such costs as those necessary for conducting: environmental 
assessments, including risk assessments; feasibility surveys; 
appraisals; title searches or opinions; or preparation of documents 
needed to satisfy Federal legal requirements, such as the National 
Environmental Policy Act. In some cases, with prior approval from NOAA, 
the cost of the land acquisition (fee simple or easement) may be 
reimbursed as a pre-award cost if the acquisition occurred between the 
date the project was recommended for funding through the competitive 
selection process (``selected'') and the date that the grant award was 
approved by NOAA.
5.2 Expenditure of Funds
    a. Availability of funds. Once a grant agreement has been signed, a 
recipient may draw funds, as needed, toward completion of the project, 
in accordance with 15 CFR 24.21 Payment.
    b. Timetable for expenditure of funds. The standard financial 
assistance award period is 18 months, and may be extended an additional 
18 months if circumstances warrant, but may not exceed 3 years. Awards 
may also be closed out early if the project is completed in less time.
    c. Unexpended funds. Any funds not expended within the grant period 
shall be de-obligated and revert to NOAA for redistribution through the 
CELCP process, including projects that fall through.
    d. Projects that exceed planned costs. All requests for additional 
Federal funding for approved CELC projects must be submitted to the 
review process along with new grants.
    e. Funds from the CELCP may be supplemented with funding from other 
Federal or non-federal sources, subject to any conditions that may 
apply to the expenditure of funds from such sources.
    f. Amending a proposal. Any amendments to a proposal or request to 
reallocate funding within a grant proposal must be approved by NOAA. In 
general, if negotiations on a selected project fall through, the 
applicant cannot substitute an alternate site.
    g. Performance reports. The state lead agency, and/or any other 
agency that received a financial assistance award directly from NOAA, 
is responsible for submitting to NOAA semi-annual reports documenting 
progress toward completion of each project, and a final report 
documenting completion of the projects and all terms and conditions of 
the award.
5.3 Conditions on Use of Funds
    All CELCP financial assistance awards will contain the following 
special award conditions and/or other applicable requirements for the 
Department of Commerce described in the Federal Register, October 1, 
2001 (66 FR 49917), as amended October 30, 2002 (67 FR 66109):
    - In the event there are title discrepancies or encumbrances that 
NOAA deems interfere with the purpose for which these funds were 
granted, or if NOAA determines that the property is no longer used for 
the purpose for which it was acquired, the recipient shall reimburse 
NOAA or its successor agencies for the Federal funds received for the 
project, subject to ``use'' and ``disposition'' instructions from NOAA 
or its successor agencies.
    - Federal funds for this project will not be transferred to the 
recipient for the acquisition of land or interest(s) in land until the 
recipient has submitted the following to NOAA for review and approval: 
a completed and signed project checklist; appraisals of land made by a 
qualified independent appraiser and performed in accordance with 
Federal or state appraisal standards; evidence of title insurance or an 
opinion of title and a copy of the real estate contract for each 
parcel; and a map indicating the tract boundaries for the property or 
portion of property being acquired.
    - Deeds for real property acquired with Federal funds provided 
through this award shall contain substantially the following provision:
    ``This property has been acquired with funds from a Federal 
financial assistance award. Title of the property conveyed by this deed 
shall vest in the [recipient of the award or other appropriate public 
agency designated by the recipient]
subject to the condition that the 
property shall be managed for conservation purposes, consistent with 
the purposes for which it was entered into the CELCP, and shall not 
convert to other uses. In the event that the property is sold, 
exchanged, or converts to other uses, NOAA shall consult with the 
recipient before deciding to exercise any of the rights regarding 
disposition of the property and reimbursement of the Federal 
Government.''
    - Upon completion of all real estate closings, the recipient shall 
submit to NOAA/OCRM copies of the closing documents.
    - The recipient shall cause to be erected and maintained at the 
site of any project, a permanent sign or plaque, satisfactory to NOAA, 
that identifies the project and indicates that the project has been 
funded under the Coastal and Estuarine Land Conservation Program by 
NOAA, in conjunction with the coastal state and/or National Estuarine 
Research Reserve or other partner.
5.4 Information the Recipient Must Retain on File
    A grant recipient is expected to retain the following information 
for at least 3 years after a grant has been closed by NOAA at the end 
of the award period:
    - A copy of the grant application, including project proposal, 
submitted to NOAA;
    - Site location maps;

[[Page 35868]]

    - Title opinion or certification;
    - Appraisal;
    - State Historic Preservation Officer's clearance; and
    - Copies of any notices or determinations that pertain to 
compliance or consistency with Federal requirements.

6. Applicability of Other Federal Requirements

    The approval of plans under this program and award of financial 
assistance are Federal activities subject to authorities such as the 
National Environmental Policy Act, Endangered Species Act, and the 
Federal consistency provisions of the CZMA. Before awarding funds, NOAA 
is responsible for ensuring that projects comply with these and other 
relevant authorities. A checklist, provided as part of the project 
application, will be used to determine whether additional information 
may be required to satisfy these requirements for any project.
6.1 National Flood Insurance Program (NFIP)
    The NFIP prohibits the use of funds for acquisition or construction 
of buildings in special flood hazard areas in communities that are not 
participating in the Flood Insurance Program, as identified in the 
NFIP's Community Status Book. Construction of buildings is not an 
eligible use of CELCP funds. A community is not precluded from 
proposing projects within the floodplain for conservation purposes.
6.2 Coastal Barriers Resource Act (CoBRA)
    In order to receive Federal funds, all proposed projects located on 
undeveloped coastal barriers designated in the CoBRA system must be 
consistent with the purposes of minimizing: the loss of human life; 
wasteful Federal expenditures; and damage to fish, wildlife, and other 
natural resources. For projects in these areas, the Office of Coastal 
and Resource Management (OCRM) must consult with the regional office of 
the U.S. Fish and Wildlife Service (USFWS) and allow 30 days for them 
to determine whether the project is consistent with CoBRA. Because OCRM 
defers to their opinion in these cases, some projects or grant awards 
may be conditioned pending the results of the consultation process. 
Early coordination by the applicant with the USFWS is advisable.
6.3 Endangered Species Act
    An applicant shall indicate whether it believes that a proposed 
project may affect threatened or endangered species or critical habitat 
as defined by the Endangered Species Act (ESA), and shall state the 
basis for its conclusion. If a proposed project may have minor and 
temporary effects, OCRM will informally consult with the relevant 
Federal agency either the USFWS or NOAA's National Marine Fisheries 
Service (NMFS). If a proposed project may significantly affect 
threatened or endangered species or critical habitat, OCRM will consult 
with the applicant regarding further steps that may need to be taken. 
If the applicant still wants to proceed, OCRM will enter into formal 
consultation with the USFWS or NMFS, pursuant to section 7 of the ESA. 
OCRM will not approve a proposed project that the USFWS or NMFS has 
determined will adversely and significantly affect threatened or 
endangered species or critical habitat.
6.4 National Environmental Policy Act (NEPA)
    These guidelines are administrative and financial in nature, and 
therefore are considered a categorical exclusion under NEPA. Subsequent 
actions concerning the approval of CELC plans, or acquisition, 
restoration, or enhancement of properties may require further analysis 
on a programmatic or case-by-case basis to determine compliance with 
NEPA. As part of the application for each project, applicants must 
complete an environmental compliance checklist that will be used to 
determine whether additional information or an Environmental Assessment 
or Environmental Impact Statement is needed.
6.5 Magnuson-Stevens Fishery Conservation and Management Act
    The Magnuson-Stevens Act requires that Federal agencies consult 
with NMFS regarding any action authorized, funded, or undertaken that 
may adversely affect essential fish habitat (EFH) for federally managed 
fish. Consultation is generally initiated when a Federal agency 
notifies NMFS of an action that may adversely affect EFH, and provides 
NMFS with an assessment of the action. In response, NMFS provides 
Conservation Recommendations to avoid, minimize, mitigate, or otherwise 
offset adverse effects on EFH. Federal agencies must provide a detailed 
response in writing to NMFS that includes proposed measures for 
avoiding, mitigating, or offsetting the impact of the proposed activity 
on EFH. If the Federal agency chooses not to adopt NMFS' EFH 
Conservation Recommendations, it must provide an explanation. EFH 
consultation and coordination should be consolidated, where 
appropriate, with interagency consultation, coordination, and 
environmental review procedures required by other statutes. 
Consultation procedures are outlined at 50 CFR 600.920.
6.6 National Historic Preservation Act
    Under the provisions of Section 106 of the National Historic 
Preservation Act of 1966, the Secretary of the Interior has compiled a 
national register of sites and buildings of significant importance to 
America's history. Before submitting an application, the applicant must 
determine whether land acquisitions or other grant-supported activities 
will affect a property listed on the national register. If so, the 
applicant must obtain clearance from the appropriate State Historic 
Preservation Office before submitting the application.
6.7 Americans with Disabilities Act (ADA)
    As a general rule, no qualified individual with a disability shall 
be subject to discrimination or be excluded from participation or 
benefits of the services, programs, or activities of a public entity. 
The ADA does not address issues of handicapped accessibility for 
outdoor recreation projects and public access projects that are needed 
to reduce harm to natural resources. Each project shall be handicapped 
accessible to the extent that conditions allow. Any construction 
associated with projects that provide for recreation, using funds other 
than CELCP, shall be handicapped accessible unless the construction of 
a handicapped accessible structure would damage coastal resources. 
Requirements for handicapped accessibility for the ADA are based on 42 
U.S.C. 12101 et. seq., and the U.S. Architectural and Transportation 
Barriers Compliance Board.
6.8 Uniform Relocation Assistance and Real Property Acquisitions 
Policies Act of 1970
    This Act, Public Law 91-646, as amended, (42 U.S.C. 4601 et. seq.) 
requires certain assurances for projects conducted by a state agency or 
its agent that involve the acquisition and/or modernization of real 
property or cause the displacement of persons, businesses, or farm 
operations. Because CELCP only supports acquisition of property or 
interests in property from willing sellers, it is not anticipated that 
this program will result in any displacements. In cases of 
displacement, Public Law 91-646 requires that applicants ensure that 
fair and

[[Page 35869]]

reasonable relocation payments and advisory services will be provided 
to any displaced persons and that safe, decent, and sanitary 
replacement dwellings will be available to such persons within a 
reasonable period of time prior to displacement. The state agency must 
be guided by the real property acquisition policies of the Act, and the 
property owners must be paid or reimbursed for necessary expenses as 
specified in the Act. The Act provides for an exemption to the 
appraisal, review and certification rules for ``voluntary 
transactions'' that meet the conditions specified at 49 C.F.R. 
24.101(a)(1), including written notification to the owner that the 
agency will not acquire the property in the event negotiations fail to 
result in an amicable agreement. Department of Commerce regulations 
implementing the Act can be found at 15 CFR part 11.
6.9 Environmental Justice
    Consistent with the President's Executive Order on Environmental 
Justice (Feb. 11, 1994) and the Department of Commerce's Environmental 
Justice Strategy, applicants shall ensure that their CELCP projects 
will not have disproportionately high and adverse human health or 
environmental effects on minority or low income populations.
6.10 Commerce Pre-Award Notification Requirements for Grants and 
Cooperative Agreements
    The Department of Commerce has published in the Federal Register, 
October 1, 2001 (66 FR 49917), as amended October 30, 2002 (67 FR 
66109), a set of requirements that are applicable to all Federal 
financial assistance awards issued by the Department. These will be 
addressed as Special Award Conditions on financial assistance awards.

7. Classification

7.1 Administrative Procedure Act/Regulatory Flexibility Act
    Prior notice and an opportunity for public comment are not required 
by the Administrative Procedure Act for rules concerning public 
property, loans, grants, benefits, and contracts (5 U.S.C. 553 (a) 
(2)). Because notice and opportunity for comment are not required 
pursuant to 5 U.S.C. 553 or any other law, the analytical requirements 
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are 
inapplicable. Therefore, a regulatory flexibility analysis is not 
required and has not been prepared.
7.2 Executive Order 12866
    These draft guidelines do not constitute a ``significant regulatory 
action'' as defined by Executive Order 12866 because: (1) they will not 
have an annual effect on the economy of $100 million or more , or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities; 
(2) they will not create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) they will not 
materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; and (4) they will not raise novel legal or policy issues 
arising out of legal mandates, the President's priorities, or the 
principles set forth in the Executive Order.
7.3 Paperwork Reduction Act
    This document contains collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA), and which have been 
approved by OMB. The use of Standard Forms 424, 424A, 424B, and SF-LLL 
have been approved by OMB under the respective control numbers 0348-
0043, 0348-0044, 0348-0040, and 0348-0046. The information to be 
collected under these guidelines through conservation plans, the 
project application, checklist, and grant application materials has 
been approved by OMB under control number 0648-0459.
    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 Paperwork 
Reduction Act unless that collection displays a currently valid OMB 
Control Number.

    Dated: June 11, 2003.
Richard W. Spinrad,
Assistant Administrator, Ocean Services and Coastal Zone Management, 
National Oceanic and Atmospheric Administration.
[FR Doc. 03-15292 Filed 6-16-03; 8:45 am]
BILLING CODE 3510-22-S

 
 

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