[Federal Register Volume 76, Number 32 (Wednesday, February 16, 2011)]
[Proposed Rules]
[Pages 8962-8965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3515]


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DEPARTMENT OF THE INTERIOR

Bureau of Ocean Energy Management, Regulation and Enforcement

30 CFR Part 285

[Docket ID: BOEM-2010-0045]
RIN 1010-AD71


Renewable Energy Alternate Uses of Existing Facilities on the 
Outer Continental Shelf--Acquire a Lease Noncompetitively

AGENCY: Bureau of Ocean Energy Management, Regulation and Enforcement 
(BOEMRE), Interior.

ACTION: Proposed rule.

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SUMMARY: BOEMRE proposes to revise the regulations that pertain to 
noncompetitive acquisition of an Outer Continental Shelf (OCS) 
renewable energy lease. We are taking this action because the current 
regulations governing the noncompetitive acquisition of an OCS 
renewable energy lease initiated by BOEMRE and a request for a 
noncompetitive OCS renewable energy lease initiated by an unsolicited 
request are inconsistent. This rulemaking will make the two processes 
consistent with each other by eliminating a duplicative and unnecessary 
step in the noncompetitive leasing process, while continuing to provide 
for adequate public notice and review of leasing proposals as required 
by law.

DATES: Comment Due Date: Submit comments on the proposed rule by March 
18, 2011.

ADDRESSES: You may submit comments on the rulemaking by any of the 
following methods. Please use the Regulation Identifier Number (RIN) 
1010-AD71 as an identifier in your message. See also Public 
Availability of Comments under Procedural Matters.
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. In 
the entry titled ``Enter Keyword or ID,'' enter BOEM-2010-0045, then 
click search. Follow the instructions to submit public comments and 
view supporting and related materials available for this rulemaking. 
BOEMRE will post all comments.
    <bullet> Mail or hand-carry comments to the Department of the 
Interior; Bureau of Ocean Energy Management, Regulation and 
Enforcement; Attention: Regulations and Standards Branch (RSB); 381 
Elden Street, MS-4024, Herndon, Virginia 20170-4817. Please reference 
``Acquire a Lease Noncompetitively, 1010-AD71'' in your comments and 
include your name and address.

FOR FURTHER INFORMATION CONTACT: Timothy Redding at (703) 787-1219.

SUPPLEMENTARY INFORMATION:

Background

    BOEMRE originally published the proposed revision for comment as a 
direct final rule in the Federal Register on November 26, 2010. That 
document stated that if BOEMRE received a significant adverse comment 
concerning the rulemaking, it would withdraw the direct final rule and 
publish a notice of proposed rulemaking. BOEMRE did receive significant 
adverse comment on the direct final rulemaking and on January 25, 2011, 
published in the Federal Register a notice of withdrawal and statement 
of intent to reinitiate rulemaking by publishing this proposed rule.
    The regulations at 30 CFR part 285 govern renewable energy leasing 
and alternate uses of existing facilities on the OCS. This proposed 
rule would revise the regulations at Sec. Sec.  285.231 and 285.232. 
The regulations at Sec.  285.231 address unsolicited requests for 
noncompetitive leases. The regulations at Sec.  285.232 address the 
acquisition of noncompetitive leases in response to a Request for 
Interest (RFI) or a Call for Information and Nomination (Call). The 
process for awarding leases noncompetitively outlined in these two 
sections is currently inconsistent.
    As currently written, Sec.  285.231 allows the award of a 
noncompetitive lease after BOEMRE receives an unsolicited request for a 
noncompetitive lease, provided that BOEMRE determines that there is no 
competitive interest after publishing a single notice of a request for 
interest relating to the unsolicited request for a noncompetitive 
lease.
    As currently written, Sec.  285.232 provides that, after BOEMRE 
publishes an RFI or Call, if a respondent indicates interest in leasing 
an area for which no other party has indicated interest, BOEMRE may 
offer a lease through a noncompetitive process. However, the 
regulations require the publication of a second RFI notice to confirm 
the absence of competition before proceeding with the noncompetitive 
process. We believe that this requirement for a second notice is 
redundant and is at odds with the noncompetitive process prescribed for 
cases in which a party submits an unsolicited request for an OCS 
renewable energy lease, where BOEMRE is required to publish only a 
single notice. Eliminating this discrepancy and requiring only one RFI 
notice would make BOEMRE's leasing processes more streamlined and 
efficient while maintaining BOEMRE's obligation to

[[Page 8963]]

notify the public of areas that may be leased, solicit public input 
regarding those areas, and determine whether competitive interest 
exists in acquiring such leases in the proposed area(s).
    Accordingly, BOEMRE proposes to revise Sec.  285.231(d)(1) to state 
that we will publish in the Federal Register a notice that there is no 
competitive interest. We would also revise Sec.  285.232(c) to refer 
back to Sec.  285.231(d) through (i) instead of referring back to Sec.  
285.231(b) through (i).

Comments on the Direct Final Rulemaking

    BOEMRE received a total of eight comments in response to the direct 
final rulemaking published on November 26, 2010. All of the comments 
objected to the rulemaking, characterizing its effect as improper 
rushing by BOEMRE to allow offshore renewable energy leasing and 
development. Four comments took issue specifically with the direct 
final rulemaking process itself and called for a proposed rule and 
comment procedure. Five of the comments stated that the current wording 
of 30 CFR 285.231 and 232 should be retained. A majority of the 
commenters appeared to misunderstand the effect of the proposed 
revision, evidencing a belief that it would remove the requirement for 
public notice to determine competitive interest altogether. However, 
one comment, which appeared to accurately understand the effect of the 
rulemaking, recommended retention of the current wording, stating that, 
``[t]he current regulations provide an added level of protection by 
ensuring that the public has adequate notice of any requests for 
interest relating to proposals to construct offshore alternative energy 
projects, giving competitive interests the chance to participate and 
submit alternative bids and the public an opportunity to express 
concerns and make comments.''
    BOEMRE has determined that it received significant adverse comment 
on the direct final rule, which was defined in the November 26 notice 
as ``a comment where the commenter explains why the rule would be 
inappropriate, including challenges to the rule's underlying premise or 
approach or would be ineffective and unacceptable without a change.'' 
It is therefore publishing this proposed rule for public comment.
    However, BOEMRE believes that the intent and effect of the proposed 
regulatory revision were largely misunderstood by most of the 
commenters. This proposed rule would maintain adequate public notice of 
leasing proposals and would be sufficient for the purpose of 
determining whether competitive interest existed, while eliminating 
unnecessary, inconsistent, and inefficient repetition in the renewable 
energy leasing process when it is initiated by BOEMRE. BOEMRE will 
consider the eight comments already received as they relate to this 
proposed rulemaking unless they are withdrawn by the commenters, and 
those commenters are welcome to submit additional comments.

Procedural Matters

Regulatory Planning and Review (Executive Order (E.O.) 12866)

    This proposed rule would not be a significant rule as determined by 
the Office of Management and Budget (OMB) and is not subject to review 
under E.O. 12866.
    (1) This proposed rule would not have an annual effect of $100 
million or more on the economy. It would 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 proposed rule would not create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency. 
The proposed rule is intended to eliminate redundancy and inefficiency.
    (3) This proposed rule would not alter the budgetary effects of 
entitlements, grants, user fees, or loan programs or the rights or 
obligations of their recipients.
    (4) This proposed rule would not raise novel legal or policy issues 
arising out of legal mandates, the President's priorities, or the 
principles set forth in E.O. 12866.

Regulatory Flexibility Act

    The Department of the Interior certifies that this proposed rule 
would 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 Department prepared a regulatory flexibility analysis for 30 
CFR part 285, and concluded that the regulations will impact a 
substantial number of small entities, but will not have a significant 
economic impact on the small entities in comparison to the impacts on 
large entities. That analysis was discussed in detail in the Notice of 
Proposed Rulemaking for 30 CFR part 285 published in the Federal 
Register on July 9, 2008 (73 FR 39376).
    The North American Industry Classification System (NAICS) code for 
the industries affected by this rule is 221119 (Other Electric Power 
Generation). The definition for this code is:

    ``This U.S. industry comprises establishments primarily engaged 
in operating electric power generation facilities (except 
hydroelectric, fossil fuel, nuclear). These facilities convert other 
forms of energy, such as solar, wind, or tidal power, into 
electrical energy. The electric energy produced in these 
establishments is provided to electric power transmission systems or 
to electric power distribution systems.''

    It is possible that this proposed rule could eventually affect 
entities that produce hydrogen and fall under NAICS Code 325120 
(Industrial Gas Manufacturing). The definition for this code is:

    ``This industry comprises establishments primarily engaged in 
manufacturing industrial organic and inorganic gases in compressed, 
liquid, or solid forms.''

    Given the original findings of the regulatory flexibility analysis 
done for 30 CFR part 285, as well as the minor adjustment to the 
renewable energy leasing process that is contemplated, the proposed 
rule would not have a significant effect on a substantial number of 
small entities.
    Your comments are important. The Small Business and Agriculture 
Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were 
established to receive comments from small businesses 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 actions of BOEMRE, call 1-888-
734-3247. You may comment to the Small Business Administration without 
fear of retaliation. Allegations of discrimination/retaliation filed 
with the Small Business Administration will be investigated for 
appropriate action.

Small Business Regulatory Enforcement Fairness Act

    This proposed rule is not a major rule under the Small Business 
Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq.). This 
proposed rule:
    a. Would not have an annual effect on the economy of $100 million 
or more.
    b. Would not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Would not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

[[Page 8964]]

The requirements would apply indiscriminately to entities intending to 
acquire a renewable energy lease on the OCS pursuant to 30 CFR part 
285.

Unfunded Mandate Reform Act of 1995

    This proposed rule would not impose an unfunded mandate on State, 
local, or tribal governments or the private sector of more than $100 
million per year. The proposed rule would 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. 1501 et seq.) is not required.

Takings Implication Assessment (E.O. 12630)

    Under the criteria in E.O. 12630, this proposed rule does not have 
significant takings implications. The proposed rule is not a 
governmental action capable of interference with constitutionally 
protected property rights. A Takings Implication Assessment is not 
required.

Federalism (E.O. 13132)

    Under the criteria in E.O. 13132, this proposed rule does not have 
federalism implications. This proposed rule would not substantially and 
directly affect the relationship between the Federal and State 
Governments. To the extent that State and local governments have a role 
in OCS activities, this proposed rule would not affect that role. A 
Federalism Assessment is not required.

Civil Justice Reform (E.O. 12988)

    This proposed rule complies with the requirements of E.O. 12988. 
Specifically, this proposed rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

Consultation With Indian Tribes (E.O. 13175)

    Under the criteria in E.O. 13175, we have evaluated this proposed 
rule and determined that it has no substantial effects on federally 
recognized Indian tribes.

Paperwork Reduction Act (PRA)

    This proposed rulemaking contains no new reporting or recordkeeping 
requirements; therefore, an OMB submission under the PRA (44 U.S.C. 
3501 et seq.) is not required. The PRA provides that an agency may not 
conduct or sponsor a collection of information unless it displays a 
currently valid OMB control number. Until OMB approves a collection of 
information and assigns a control number, you are not required to 
respond. The revisions in this rulemaking refer to, but would not 
change, information collection requirements in 30 CFR part 285. The OMB 
approved the referenced information collection requirements under OMB 
Control Number 1010-0176 (expiration 3/31/2013).

National Environmental Policy Act of 1969

    This proposed rule does not constitute a major Federal action 
significantly affecting the quality of the human environment. BOEMRE 
has analyzed this proposed rule under the criteria of the National 
Environmental Policy Act (NEPA) and the Department's regulations 
implementing NEPA. This proposed rule meets the criteria set forth at 
43 CFR 46.210(i) for a Departmental Categorical Exclusion in that this 
proposed rule is ``* * * of an administrative, financial, legal, 
technical, or procedural nature; or whose environmental effects are too 
broad, speculative, or conjectural to lend themselves to meaningful 
analysis * * *'' Further, BOEMRE has analyzed this proposed rule to 
determine if it meets any of the extraordinary circumstances that would 
require an environmental assessment or an environmental impact 
statement as set forth in 43 CFR 46.215 and concluded that this 
proposed rule, being purely procedural, does not meet any of the 
criteria for extraordinary circumstances.

Data Quality Act

    In developing this proposed rule, BOEMRE did not conduct or use a 
study, experiment, or survey requiring peer review under the Data 
Quality Act (Pub. L. 106-554, app. C Sec.  515, 114 Stat. 2763, 2763A-
153-154).

Effects on the Energy Supply (E.O. 13211)

    This proposed rule is not a significant energy action under the 
definition in E.O. 13211. A Statement of Energy Effects is not 
required.

Clarity of This Proposed Regulation

    BOEMRE is required by E.O. 12866, E.O. 12988, and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the proposed rule, your comments should be as 
specific as possible. For example, you should tell us the numbers of 
the sections or paragraphs that you find unclear, which sections or 
sentences are too long, the sections where you feel lists or tables 
would be useful, etc.

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

List of Subjects in 30 CFR Part 285

    Continental shelf, Environmental protection, Public lands.

    Dated: February 9, 2011.
Wilma A. Lewis,
Assistant Secretary for Land and Minerals Management.

    For the reasons stated in the preamble, the Bureau of Ocean Energy 
Management, Regulation and Enforcement (BOEMRE) proposes to amend 30 
CFR part 285 as follows:

PART 285--RENEWABLE ENERGY AND ALTERNATE USES OF EXISTING 
FACILITIES ON THE OUTER CONTINENTAL SHELF

    1. The authority citation for part 285 continues to read as 
follows:

    Authority:  43 U.S.C. 1331 et seq., 43 U.S.C. 1337.

    2. Amend Sec.  285.231 by revising paragraph (d)(1) to read as 
follows:


Sec.  285.231  How will BOEMRE process my unsolicited request for a 
noncompetitive lease?

* * * * *
    (d) * * *
    (1) We will publish in the Federal Register a notice that there is 
no competitive interest; and
* * * * *
    3. Amend Sec.  285.232 by revising paragraph (c) to read as 
follows:

[[Page 8965]]

Sec.  285.232  May I acquire a lease noncompetitively after responding 
to a Request for Interest or Call for Information and Nominations under 
Sec.  285.213?

* * * * *
    (c) After receiving the acquisition fee, BOEMRE will follow the 
process outlined in Sec.  285.231(d) through (i).

[FR Doc. 2011-3515 Filed 2-15-11; 8:45 am]
BILLING CODE 4310-MR-P