28178 Federal Register / Vol. 76, No. 94 / Monday, May 16, 2011 / Rules and Regulations 

provisions of the Arms Export Control 

Act and the ITAR. 

(c) The end-user or consignee may 

satisfy the condition in paragraph (b) of 

this section, prior to transferring defense 

articles, by requiring: 

(1) A security clearance approved by 

the host nation government for its 

employees, or 

(2) The end-user or consignee to have 

in place a process to screen its 

employees and to have executed a NonDisclosure Agreement that provides 

assurances that the employee will not 

transfer any defense articles to persons 

or entities unless specifically authorized 

by the consignee or end-user. The enduser or consignee must screen its 

employees for substantive contacts with 

restricted or prohibited countries listed 

in § 126.1. Substantive contacts include 

regular travel to such countries, recent 

or continuing contact with agents, 

brokers, and nationals of such countries, 

continued demonstrated allegiance to 

such countries, maintenance of business 

relationships with persons from such 

countries, maintenance of a residence in 

such countries, receiving salary or other 

continuing monetary compensation 

from such countries, or acts otherwise 

indicating a risk of diversion. Although 

nationality does not, in and of itself, 

prohibit access to defense articles, an 

employee who has substantive contacts 

with persons from countries listed in 

§ 126.1(a) shall be presumed to raise a 

risk of diversion, unless DDTC 

determines otherwise. End-users and 

consignees must maintain a technology 

security/clearance plan that includes 

procedures for screening employees for 

such substantive contacts and maintain 

records of such screening for five years. 

The technology security/clearance plan 

and screening records shall be made 

available to DDTC or its agents for civil 

and criminal law enforcement purposes 

upon request. 

Dated: April 26, 2011. 

Ellen O. Tauscher, 

Under Secretary, Arms Control and 

International Security, Department of State. 

[FR Doc. 2011–11697 Filed 5–13–11; 8:45 am] 

BILLING CODE 4710–25–P 

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. 

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, § 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, § 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 § 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 

§ 285.232(c) to refer to the process 

outlined in § 285.231(d) through (i) 

rather than § 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 


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Federal Register / Vol. 76, No. 94 / Monday, May 16, 2011 / Rules and Regulations 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 


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28180 Federal Register / Vol. 76, No. 94 / Monday, May 16, 2011 / Rules and Regulations 

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 § 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 

■ 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 § 285.231 by revising the 

section heading and paragraph (d)(1) to 

read as follows: 

§ 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 § 285.232 by revising 

paragraph (c) to read as follows: 

§ 285.232 May I acquire a lease 

noncompetitively after responding to a 

Request for Interest or Call for Information 

and Nominations under § 285.213? 

* * * * * 

(c) After receiving the acquisition fee, 

BOEMRE will follow the process 

outlined in § 285.231(d) through (i). 

[FR Doc. 2011–11908 Filed 5–13–11; 8:45 am] 

BILLING CODE 4310–MR–P 

DEPARTMENT OF DEFENSE 

Department of the Navy 

32 CFR Part 706 

Certifications and Exemptions Under 

the International Regulations for 

Preventing Collisions at Sea, 1972 

AGENCY: Department of the Navy, DoD. 

ACTION: Final rule; correcting 

amendment. 

SUMMARY: In the Federal Register of 

April 21, 2011, the Department of the 

Navy (DoN) published a final rule 

concerning certifications and 

exemptions under the International 

Regulations for Preventing Collisions at 

Sea, 1972 (72 COLREGS). That 

document contained incorrect 

information concerning side lights arc of 

visibility; rule 21(b). This correcting 

amendment corrects that information. 

DATES: Effective Date: May 16, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Lieutenant Jaewon Choi, JAGC, U.S. 

Navy, Admiralty Attorney, (Admiralty 

and Maritime Law), Office of the Judge 

Advocate General, Department of the 

Navy, 1322 Patterson Ave., SE, Suite 

3000, Washington Navy Yard, DC 

20374–5066, telephone number: 202– 

685–5040. 

SUPPLEMENTARY INFORMATION: Pursuant 

to the authority granted in 33 U.S.C. 

1605, the DoN amends 32 CFR Part 706. 

This amendment provides notice that 

the DAJAG (Admiralty and Maritime 

Law), under authority delegated by the 

Secretary of the Navy, has certified that 

USS MICHIGAN (SSBN 727) and USS 

Georgia (SSBN 729) are vessels of the 

Navy which, due to their special 

construction and purpose, cannot fully 

comply with specific provisions of 72 

COLREGS without interfering with their 

special function as naval ships. The 

vessels have been converted from 

SSBN’s to SSGN’s and this amendment 

will edit the classification of the vessels 

to accurately reflect their new 

designation as SSGN’s. This amendment 

does not change the vessels’ previously 

noted deviations from 72 COLREGS. 

The DAJAG (Admiralty and Maritime 

Law) has also certified that the lights 

involved are located in closest possible 

compliance with the applicable 72 

COLREGS requirements. 

Moreover, it has been determined, in 

accordance with 32 CFR parts 296 and 

701, that publication of this amendment 

for public comment prior to adoption is 

impracticable, unnecessary, and 

contrary to public interest since it is 

based on previous and unchanged 

technical findings that the placement of 

lights on these vessels in a manner 

differently from that prescribed herein 

will adversely affect the vessel’s ability 

to perform its military functions. 

Furthermore, this amendment merely 

changes the classification of these 

vessels and does not reflect any changes 

to the placement of lights on any of 

these vessels. 


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