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[Federal Register Volume 76, Number 94 (Monday, May 16, 2011)]
[Rules and Regulations]
[Pages 28178-28180]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-11908]

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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: Final rule.

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SUMMARY: This final rule revises BOEMRE regulations that pertain to 
noncompetitive acquisition of an Outer Continental Shelf (OCS) 
renewable energy lease. We are taking this action because under the 
current regulations the process for acquiring a lease noncompetitively 
that is initiated by an unsolicited request is inconsistent with the 
process for acquiring a lease noncompetitively that is initiated by 
BOEMRE. By revising regulations which govern the lease acquisition 
process starting with submission of an unsolicited request, and 
regulations which govern the lease acquisition process starting with 
BOEMRE issuance of a Request for Interest (RFI) or a Call for 
Information and Nomination (Call), this rulemaking will make the two 
processes consistent with each other.

DATES: Effective Date: This final rule is effective June 15, 2011.

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

SUPPLEMENTARY INFORMATION:

Background

    As originally written, Sec.  285.231 allowed the award of a 
noncompetitive lease after BOEMRE received an unsolicited request for a 
noncompetitive lease if BOEMRE determined that there was no competitive 
interest after publishing a single notice of a request for interest 
relating to the unsolicited request for a noncompetitive lease. As 
originally written, Sec.  285.232 provided that if BOEMRE published an 
RFI or Call resulting in a single expression of interest in a discrete 
portion within the RFI or Call area, BOEMRE could offer a lease for 
that area through a noncompetitive process only if it also issued a 
notice of request for interest as required by Sec.  285.231(b) and 
subsequently determined that there was no competitive interest based on 
responses to that notice.
    BOEMRE believes that the requirement for another notice following 
an RFI or Call was redundant and was at odds with the noncompetitive 
process prescribed for cases in which a party submitted an unsolicited 
request for an OCS renewable energy lease, where BOEMRE is required to 
publish only a single notice. The final rule revises Sec.  285.232(c) 
to refer to the process outlined in Sec.  285.231(d) through (i) rather 
than Sec.  285.231(b) through (i), thereby eliminating this discrepancy 
by requiring only one RFI notice for determining competitive interest 
in all cases. This will make BOEMRE's leasing processes more 
streamlined and efficient while maintaining BOEMRE's obligations to 
notify the public of areas that may be leased, to solicit public input 
regarding those areas, and to determine whether competitive interest 
exists in acquiring leases in those areas.

Comments on the Proposed Rule

    BOEMRE published a proposed rule on February 16, 2011 (76 FR 8962), 
and received a total of 76 comments.
    The Offshore Wind Development Coalition, the National Hydropower 
Association, Offshore MW LLC, the American Wind Energy Association, and 
the National Wildlife Federation expressed support for revising the 
rule as proposed and endorsed BOEMRE's rationale for doing so.
    The Alliance to Protect Nantucket Sound (APNS) and the Oceans 
Public Trust Initiative (OPTI) objected to revising the rule and 
objected to BOEMRE's rationale. The APNS stated that the proposed rule 
would promote a land rush attitude, diminish competition, and 
marginalize public review by shortening the environmental review 
process for OCS wind developers. The OPTI stated that it appears that 
the sole purpose for revising the regulations appears to be to make 
leasing move more quickly, which could be at the expense of more 
careful and balanced review. The OPTI also stated that revising the 
rule as proposed promotes collusion among industry participants. 
Defenders of Wildlife did not explicitly offer an opinion in favor of 
or in opposition to the proposed rule revision. However, it stated 
that, ``In proposing to arbitrarily set a new criteria for an expedited 
accelerated permitting process solely on the basis of the number of 
applicants for a lease at a particular location, BOEMRE appears to 
ignore in this rulemaking any and all parameters that make a particular 
location unique * * *.''
    BOEMRE received 68 comments from private citizens, 3 that expressed

[[Page 28179]]

support for revising the rule, 55 that expressed opposition (including 
50 form letters), and 10 that were not germane to the rulemaking. The 
comments supporting the rule revision stated that it will promote more 
efficient noncompetitive leasing processes without curtailing public 
input and environmental review procedures. The comments opposing the 
rule revision asserted that it will reduce or eliminate competition, 
thereby promoting an offshore land rush for renewable energy leases, 
and will marginalize the public review process.
    After reviewing the comments on the proposed rule, BOEMRE has 
concluded that there is no compelling reason not to promulgate the 
final rule. As we have maintained throughout this rulemaking, the 
revision of the regulations will eliminate inefficiency and provide 
consistency while preserving adequate opportunity for public notice and 
review in BOEMRE noncompetitive leasing processes. The final rule will 
have no effect on the environmental review process carried out pursuant 
to the requirements in the National Environmental Policy Act. In 
response to concerns that the proposed rule will diminish competition, 
the final rule will have no effect on competition and is fully 
consistent with BOEMRE's obligations under subsection 8(p) of the OCS 
Lands Act, as amended, to offer OCS renewable energy leases on a 
competitive basis unless we determine, after public notice of a 
proposed lease, that there is no competitive interest. BOEMRE leasing 
processes under the renewable energy regulatory framework, as revised 
by this final rule, will continue to provide for thorough BOEMRE review 
of all relevant environmental and cultural criteria, as well as public 
participation. Consequently, we believe the final rule will have no 
effect whatsoever on potential collusion among offshore renewable 
energy developers.

Regulatory Requirements

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

    This final rule is not a significant rule as defined by the Office 
of Management and Budget (OMB) and is not subject to review under E.O. 
12866.
    (1) This final rule will not have an annual effect of $100 million 
or more on the economy. It will 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 final rule will not create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency. 
The final rule will eliminate unnecessary redundancy and inefficiency.
    (3) This final rule will not alter the budgetary effects of 
entitlements, grants, user fees, or loan programs or the rights or 
obligations of their recipients.
    (4) This final rule will 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 final rule will 
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 final 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 accomplished, this final rule 
will not have a significant effect on a substantial number of small 
entities.

Small Business Regulatory Enforcement Fairness Act

    This final rule is not a major rule under the Small Business 
Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq.). This final 
rule:
    a. Will not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Will 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. The 
requirements will 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 final rule will not impose an unfunded mandate on State, 
local, or Tribal governments or the private sector of more than $100 
million per year. The final rule will 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 final rule does not have 
significant takings implications. The final 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 final rule does not have 
federalism implications. This final rule will 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 final rule will not affect that role. A 
Federalism Assessment is not required.

Civil Justice Reform (E.O. 12988)

    This final rule complies with the requirements of E.O. 12988. 
Specifically, this final 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

[[Page 28180]]

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 final rule 
and determined that it has no substantial effects on Federally 
recognized Indian Tribes.

Paperwork Reduction Act (PRA)

    This final rulemaking does not contain new information collection 
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 final rulemaking refer to, but will not 
change, information collection requirements in 30 CFR part 285. The OMB 
approved the information collection requirements contained in 30 CFR 
part 285 under OMB Control Number 1010-0176 (expiration 3/31/2013).

National Environmental Policy Act of 1969

    This final rule does not constitute a major Federal action 
significantly affecting the quality of the human environment. BOEMRE 
has analyzed this final rule under the criteria of the National 
Environmental Policy Act (NEPA) and the Department's regulations 
implementing NEPA. This final rule meets the criteria set forth at 43 
CFR 46.210(i) for a Departmental Categorical Exclusion in that this 
final 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 final rule to 
determine if it meets any of the extraordinary circumstances that will 
require an environmental assessment or an environmental impact 
statement as set forth in 43 CFR 46.215 and concluded that this final 
rule, being purely procedural, does not meet any of the criteria for 
extraordinary circumstances.

Data Quality Act

    In developing this final 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 final rule is not a significant energy action under the 
definition in E.O. 13211. A Statement of Energy Effects is not 
required.

List of Subjects in 30 CFR Part 285

    Continental shelf, Environmental protection, Public lands.

    Dated: April 28, 2011.
Ned Farquhar,
Acting Assistant Secretary for Land and Minerals Management.
    For the reasons stated in the preamble, the Bureau of Ocean Energy 
Management, Regulation and Enforcement (BOEMRE) amends 30 CFR part 285 
as follows:

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

0
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.

0
2. Amend Sec.  285.231 by revising the section heading and 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
* * * * *

0
3. Amend Sec.  285.232 by revising paragraph (c) to read as follows:

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. 2011-11908 Filed 5-13-11; 8:45 am]
BILLING CODE 4310-MR-P
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