[Federal Register Volume 88, Number 19 (Monday, January 30, 2023)]
[Proposed Rules]
[Pages 5968-6052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00668]
[[Page 5967]]
Vol. 88
Monday,
No. 19
January 30, 2023
Part II
Department of the Interior
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Bureau of Ocean Energy Management
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30 CFR Part 585
Renewable Energy Modernization Rule; Proposed Rule
Federal Register / Vol. 88, No. 19 / Monday, January 30, 2023 /
Proposed Rules
[[Page 5968]]
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DEPARTMENT OF THE INTERIOR
Bureau of Ocean Energy Management
30 CFR Part 585
[Docket No. BOEM-2023-0005]
RIN 1010-AE04
Renewable Energy Modernization Rule
AGENCY: Bureau of Ocean Energy Management (BOEM), Interior.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The first Outer Continental Shelf (OCS) renewable energy
regulations were promulgated in 2009 by BOEM's predecessor, the
Minerals Management Service (MMS). BOEM's renewable energy program has
matured over the past 13 years, during which time BOEM conducted eleven
auctions and issued and managed 27 active commercial leases. Based on
this experience, the Department has identified opportunities to
modernize its regulations to facilitate the development of offshore
wind energy resources to meet U.S. climate and renewable energy
objectives. This proposed rule contains reforms identified by the
Department and recommended by industry since 2010, including proposals
for incremental funding of decommissioning accounts; more flexible
geophysical and geotechnical survey submission requirements;
streamlined approval of meteorological (met) buoys; revised project
verification procedures; reform of BOEM's renewable energy auction
process; and greater clarity regarding safety requirements. This
proposed rule would advance the Department of the Interior's (DOI)
energy policies in a safe and environmentally sound manner that would
provide a fair return to the U.S. taxpayer.
DATES: Submit comments regarding the substance of this proposed rule to
BOEM on or before March 31, 2023. Submit comments regarding the
information collection burden of this proposed rule to the Office of
Management and Budget (OMB) and to BOEM on or before March 1, 2023.
Comments received after these dates might not be considered.
ADDRESSES: You may send comments regarding the substance of this
proposed rule, identified by docket number BOEM-2022-0019 and
regulation identifier number (RIN) 1010-AE04, using any of the
following methods:
Federal e-rulemaking portal: https://www.regulations.gov.
Follow the instructions for submitting comments. Helpful search terms
are ``RIN 1010-AE04'' or ``BOEM-2022-0019.''
U.S. Postal Service or other mail delivery service:
Address comments to Office of Regulations, Bureau of Ocean Energy
Management, Department of the Interior, Attention: Georgeann Smale,
45600 Woodland Road, Mailstop: DIR-BOEM, Sterling, VA 20166.
Information Collection Addresses: Written comments and
recommendations for this particular proposed information collection
should be submitted within 30 days of this notice's publication to
https://www.reginfo.gov/public/do/PRAMain. From this main web page, you
can find and submit comments on this particular information collection
by proceeding to the boldface heading ``Currently under Review,''
selecting ``Department of the Interior'' in the ``Select Agency'' pull
down menu, clicking ``Submit,'' then, checking the box ``Only Show ICR
for Public Comment'' on the next web page, scrolling to OMB Control
Number 1010-0176, and clicking ``Comment'' button at the right margin.
Or, you may use the search function on the main web page. Please
provide a copy of your comments to the Information Collection Clearance
Officer, Office of Regulations, Bureau of Ocean Energy Management,
Attention: Anna Atkinson, 45600 Woodland Road, Sterling, VA 20166; or
by email to [email protected]. Please reference OMB Control Number
1010-0176 in the subject line of your comments.
Instructions: All comments submitted regarding this proposed rule
and its information collection requirements should reference the docket
number BOEM-2022-0019 or RIN 1010-AE04. All comments received by BOEM
will be reviewed and may be posted to https://www.regulations.gov,
including any personal information provided with the submission. For
further instructions on submitting comments and protecting personally
identifiable information, see ``What Should I Consider as I Prepare My
Comments?'' in section II.A under the SUPPLEMENTARY INFORMATION section
of this document.
Docket: To access this proposed rule's docket to read related
documents and public comments, visit https://www.regulations.gov and
enter the docket number BOEM-2020-0033 into the search engine.
FOR FURTHER INFORMATION CONTACT: Georgeann Smale, Renewable Energy
Modernization Rule Lead, Office of Regulations, BOEM, at telephone
number 703-544-9246 or email address [email protected]; or Karen
Thundiyil, Chief, Office of Regulations, BOEM, at telephone number 202-
742-0970, or email address [email protected].
To obtain a copy of the information collection supporting
statement, contact: Information Collection Clearance Officer, Office of
Regulations, Bureau of Ocean Energy Management, Attention: Anna
Atkinson, 45600 Woodland Road, Sterling, VA 20166.
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
I. Executive Summary
II. General Information
A. What should I consider as I prepare my comments?
1. Contact Information
2. Public Availability of Comments
3. Information Collection Comments
4. Scope of Comments
5. Suggestions for Preparing Your Comments
III. Preamble Glossary of Abbreviations, Terms, and Acronyms
IV. Background
A. Statutory Authority
B. Existing Regulatory Framework
1. Conducting Renewable Energy Activities on the Outer
Continental Shelf
2. Issuing Competitive Leases and Grants
3. Administration of Leases and Grants
4. Payments and Financial Assurance
5. Plan Submittal and Review
6. Design, Fabrication, and Installation of Facilities
7. Facility Operations
8. Decommissioning
C. Need for Rulemaking
V. Analytical Overview of the Proposed Rule
A. Site Assessment Facilities
1. Existing Regulations
2. Why the Existing Regulations Should Be Updated
3. Proposed Changes
B. Project Design Envelope
C. Geophysical and Geotechnical Surveys
1. Existing Regulations
2. Why the Existing Regulations Should Be Updated
3. Proposed Changes
4. Solicitation of Comments Concerning a Potential New Permit
Requirement for Conducting Geological and Geophysical Surveys for
Renewable Energy Activities
D. Certified Verification Agent and Engineering Reports
1. Existing Regulations
2. Why the Existing Regulations Should Be Updated
3. Proposed Changes
E. Renewable Energy Leasing Schedule
1. Existing Regulations
2. Why the Existing Regulations Should Be Updated
3. Proposed Changes
F. Lease Issuance Procedures
1. Existing Regulations
2. Why the Existing Regulations Should Be Updated
3. Proposed Changes
G. Risk Management and Financial Assurance
1. Existing Regulations
[[Page 5969]]
2. Why the Existing Regulations Should Be Updated
3. Proposed Changes
H. Safety Management Systems
1. Existing Regulations
2. Why the Existing Regulations Should Be Updated
3. Proposed Changes
I. Inspections
1. Existing Regulations
2. Why the Existing Regulations Should Be Updated
3. Proposed Changes
J. Other Proposed Changes
1. Lease Structure
2. Lease Segregation and Consolidation
3. Civil Penalties
4. Standardize Annual Rental Rates for Grants
5. Technical Corrections and Clarifications
K. Potential Revisions to Regulations Governing Research
Activities
L. Potential Revisions to Regulations Governing Transmission
VI. Section-by-Section Analysis of Proposed Rule
A. 30 CFR Part 585, Subpart A--General Provisions
B. 30 CFR Part 585, Subpart B--The Renewable Energy Leasing
Schedule
C. 30 CFR Part 585, Subpart C--Issuance of OCS Renewable Energy
Leases
D. 30 CFR Part 585, Subpart D--Rights-of-Way Grants and Rights-
of-Use and Easement Grants for Renewable Energy Activities
E. 30 CFR Part 585, Subpart E--Lease and Grant Administration
F. 30 CFR Part 585, Subpart F--Payments and Financial Assurance
Requirements
G. 30 CFR Part 585, Subpart G--Plans and Information
Requirements
H. 30 CFR Part 585, Subpart H--Facility Design, Fabrication, and
Installation
I. 30 CFR Part 585, Subpart I--Environmental and Safety
Management, Inspections, and Facility Assessments for Activities
Conducted Under SAPs, COPs, and GAPs
J. 30 CFR Part 585, Subpart J--Decommissioning
K. 30 CFR Part 585, Subpart K--Rights-of-Use and Easement for
Energy- and Marine-Related Activities Using Existing OCS Facilities
VII. Procedural Matters
A. Statutes
1. National Environmental Policy Act of 1969
2. Paperwork Reduction Act of 1995
3. Regulatory Flexibility Act
4. Small Business Regulatory Enforcement Fairness Act
5. Unfunded Mandates Reform Act of 1995
6. Congressional Review Act
B. Executive Orders
1. Executive Order 12630--Takings Implication Assessment
2. Executive Order 12866--Regulatory Planning and Review; and
Executive Order 13563--Improving Regulation and Regulatory Review
3. Executive Order 12988--Civil Justice Reform
4. Executive Order 13132--Federalism
5. Executive Order 13175--Consultation and Coordination With
Indian Tribal Governments
6. Executive Order 13211--Effects on the Nation's Energy Supply
7. Presidential Memorandum of June 1, 1998, on Regulation
Clarity
I. Executive Summary
This proposed rule would facilitate the development of OCS
renewable energy and would promote U.S. climate and renewable energy
objectives in a safe and environmentally sound manner while providing a
fair return to the U.S. taxpayer. These important goals would be
accomplished by modernizing regulations, streamlining overly complex
and burdensome processes, clarifying ambiguous provisions, enhancing
compliance provisions, and correcting technical errors and
inconsistencies. Through these changes, the Department aims to reduce
administrative burdens for both developers and the Department's staff,
reduce developer \1\ costs and uncertainty, and introduce greater
regulatory flexibility in a rapidly changing industry to foster the
supply of OCS renewable energy to meet increasing demand, while
maintaining environmental safeguards. This proposed rule is a major
modernization of the regulations, reflects lessons learned from the
past 13 years, and is projected to save the renewable energy industry
$1 billion over 20 years.\2\
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\1\ As used in this preamble, the term ``developer'' includes
those interested in constructing, operating, and maintaining OCS
facilities to produce, transport, or support the generation of
energy from renewable resources. Developers may include applicants
seeking noncompetitive leases and grants, bidders in competitive
auctions, holders of BOEM-issued leases (lessees) and grants (grant
holders), and operators of facilities and support contractors.
\2\ For the supporting economic analyses, see section VII.B.2 of
this preamble, including the associated tables, that summarizes
BOEM's estimated 20-year compliance cost savings as well as the
initial regulatory impact analysis available in this proposed rule's
docket at https://www.regulations.gov/docket?D=BOEM-2020-0033. The
estimated cost reduction is expressed in net present value of 2022
dollars estimated over a 20-year period at a 7 percent discount
rate. The estimated annualized cost reduction at the 7 percent
discount rate is about $95 million. At a 3 percent discount rate,
the estimated cost reduction over a 20-year period is about $1.4
billion in net present value of 2022 dollars. The estimated
annualized cost reduction at the 3 percent discount rate is about
$93 million.
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These updates are necessary to ensure a durable and appropriate
process is in place to advance renewable energy on the OCS.
The proposed rule contains eight major components:
1. Eliminating unnecessary requirements for the deployment of
meteorological (met) buoys.
BOEM requires a site assessment plan (SAP) for data collection
activities that measure met conditions and that aid the siting and
design of an offshore renewable energy project. Such activities include
the use of met towers and buoys. BOEM first formulated the SAP
requirement in 2009, when the offshore wind industry gathered
meteorological data primarily from towers fixed in place by foundations
pile-driven into the seafloor. The industry has since transitioned to
buoys anchored to the seafloor that gather the same data at lower cost
and with less environmental impact.
The U.S. Army Corps of Engineers (USACE) permits scientific
measurement devices used for a variety of purposes deployed in U.S.
navigable waters and on the OCS, including met towers and met buoys.
The USACE permitting process is tailored to buoys and is subject to the
same Federal environmental laws \3\ as BOEM's SAP process. BOEM's
existing SAP process is well suited for the complexities involved with
installing met towers but has proven to be unreasonably burdensome for
simply anchoring met buoys on the seafloor and redundant with USACE's
process.
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\3\ E.g., National Environmental Policy Act, Endangered Species
Act, and National Historic Preservation Act.
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This proposed rule would eliminate both the SAP requirement for met
buoys and the limited lease requirement for installing off-lease met
towers and met buoys.\4\ Off-lease met towers and met buoys would
continue to require USACE permits, given that agency's jurisdiction
over obstructions deployed in U.S. navigable waters under section 10 of
the Rivers and Harbors Act.
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\4\ As used throughout this notice, ``off-lease'' means
activities occurring on the OCS that are conducted outside the
leasehold of a commercial lease issued by BOEM. ``On-lease'' means
activities occurring on the OCS within the boundaries of a
commercial lease issued by BOEM.
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2. Increasing survey flexibility.
Before constructing an offshore renewable energy project, lessees
and grant holders must conduct geotechnical, geophysical, and
archaeological surveys. The primary purposes of these surveys are to
ensure the site is suitable for construction, avoid seafloor hazards,
and identify historic and cultural resources. Currently, BOEM requires
detailed geotechnical survey data for each proposed wind turbine
location in the construction and operations plan (COP) submitted by the
lessee before project construction is authorized. However, the
Department has learned that the precise location of each wind turbine
[[Page 5970]]
may be uncertain at the COP submittal stage, and geotechnical data
collected primarily for engineering purposes are more relevant to the
review process after COP approval. Consequently, lessees have requested
permission to submit geotechnical data for each turbine location after
COP approval, but before construction.
This proposed rule would defer certain geotechnical survey
requirements, such as engineering site-specific surveys (e.g.,
boreholes, vibracores, grab samplers, cone penetrometer tests and other
penetrative methods). This proposed change would allow more time to
complete the required surveys and would provide greater flexibility in
designing projects. BOEM's guidelines for geotechnical surveys are
available online.\5\
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\5\ https://www.boem.gov/sites/default/files/documents/about-boem/GG-Guidelines.pdf.
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3. Improving the project design and installation verification
process.
A certified verification agent (CVA) provides independent third-
party review of a project's design, fabrication, and installation. The
proposed rule would expand the CVA's role to include verification of
the design and commissioning of the critical safety systems to assist
the Department in meeting requirements of the Outer Continental Shelf
Lands Act (OCS Lands Act; 43 U.S.C. 1331 et seq.), and its implementing
regulations at 30 CFR 585.102(a), to ensure that any activities
authorized by BOEM are carried out safely. BOEM's regulations require
CVAs to ``certify'' projects, but CVAs have informed BOEM that the
proper industry standard is ``verification.'' This proposed rule would
change the regulatory language defining the CVA's role from ``certify''
and ``certification'' to ``verify'' and ``verification.'' This proposed
change likely would encourage additional firms to participate in
offshore renewable energy projects as CVAs. Industry also has suggested
changes that would enable BOEM to approve CVA nominations before COP
submittal and would allow separate facility design reports (FDRs) and
fabrication and installation reports (FIRs) for major project
components. These changes would encourage developers to seek CVA review
throughout their project design process and would permit the use of
specialized CVAs to verify specific project components.
4. Establishing a Public Renewable Energy Leasing Schedule.
This proposed rule would introduce a new commitment by the
Secretary of the Interior (Secretary) to publish a schedule of
anticipated lease sales that BOEM intends to hold in the subsequent 5
years. This provision is intended to provide advance notice to
stakeholders of areas being considered for future lease sales. The
proposed schedule for leasing would provide increased certainty and
enhanced transparency. This is intended to facilitate planning by
industry, the States, and other stakeholders. Comments on the timing
and scope of a scheduled lease sale can be made during the public
comment opportunities afforded by BOEM during the planning process for
each particular lease sale scheduled (e.g., Request for Interest, Call
for Information and Nominations, etc.). The proposed schedule would be
updated at least once every 2 years to reflect any changes. This
proposed schedule would include a general description of the area of
each proposed lease sale, the anticipated quarter of each sale, and
reasons for changes made to the previously issued leasing schedule, if
any.
5. Reforming BOEM's renewable energy auction regulations.
In response to lessons learned from eleven auctions, BOEM proposes
to reorganize and clarify its pre- and post-auction procedures. These
changes would also address the use of bidding credits, deter potential
bidder collusion, and more clearly outline auction processes and
requirements. They also would specify actions to be taken if a
provisional winner fails to meet its obligations, or if an existing
lease is relinquished, contracted, or cancelled. The proposed rule
would preserve the option to use multiple factor auctions.
6. Tailoring financial assurance requirements and instruments.
BOEM requires financial assurances from lessees and grant holders
to protect the U.S. taxpayer against potential liabilities arising from
any default on lessee or grant holder regulatory obligations. The
proposed rule would tailor the financial assurance requirements to
better align those requirements with actual risk by allowing
incremental funding of decommissioning accounts in accordance with a
BOEM-approved schedule during the lease term and by expanding the
acceptable categories of financial assurance instruments.
7. Clarifying safety management system regulations.
The proposed rule would clarify the information requirements for
safety management systems and would add two safety reporting
requirements. The proposed rule would incentivize lessees and grant
holders to obtain a safety management certification from an accredited
conformity assessment body (CAB) as a means to reduce the frequency and
intensity of regulatory oversight activities.
8. Revising other provisions and making technical corrections.
The proposed rule contains numerous additional provisions that do
not fit within the categories described above. The most significant of
these provisions would: restructure commercial lease terms into four
periods tied to activities required to develop the lease; explicitly
allow regulatory departures before and after a lease or grant is issued
or made; authorize civil penalties without either notice or a time
period for corrective action when violations cause or threaten to cause
serious, irreparable, or immediate harm or damage; add specific
procedures regarding lease segregation and consolidation; and
standardize the annual rental rate per acre across most grants. The
proposed rule would correct technical errors in the existing
regulations and would make corrections to ensure consistency between
the proposed changes and existing practice.
The Department has authority to promulgate OCS renewable energy
regulations under the OCS Lands Act. The proposed rule would be
consistent with and would advance DOI's energy policies as outlined in
various executive orders.
II. General Information
A. What should I consider as I prepare my comments?
1. Contact Information
Please include your name, address, and telephone number or email
address so BOEM can contact you with any questions regarding your
submission. BOEM will not consider anonymous comments.
2. Public Availability of Comments
Responses will be posted on https://www.regulations.gov. Your
entire comment will become publicly available after submission,
including your name, address, phone number, email address, and any
other personally identifiable information (PII) in your comment.
If you wish to protect the confidentiality of your comments,
clearly mark the relevant sections and request that BOEM treat them as
confidential. In order for BOEM to withhold from disclosure your PII,
you must identify any information contained in your comments that, if
released, would constitute a clearly unwarranted invasion of your
privacy. You must also briefly describe any possible harmful
consequences of the disclosure of information, such as embarrassment,
injury, or other harm.
[[Page 5971]]
Please label privileged or confidential information as ``Contains
Confidential Information,'' and consider submitting such information as
a separate attachment. Information that is not labeled as privileged or
confidential may be regarded by BOEM as suitable for public release.
While you can request that your PII be withheld from public view,
BOEM cannot guarantee that it will be able to do so.
3. Information Collection Comments
OMB is required to provide its comments concerning the information
collection in this proposed rule 30-60 days after publication of this
document in the Federal Register. Therefore, a comment to OMB is best
assured of being fully considered if OMB receives it by March 1, 2023.
This does not affect the deadline for public comments to BOEM on the
proposed rule. To review a copy of the information collection request
submitted to OMB, go to https://www.reginfo.gov, select ``Information
Collection Review.'' Under the heading ``Currently Under Review,''
select ``Department of the Interior'' from the pull-down menu; click
``submit;'' check the box ``Only Show ICR for Public Comment'' on the
next web page; scroll to OMB Control Number 1010-0176; and click
``Comment'' button at the right margin. You may obtain a copy of the
supporting statement for this proposed information collection by
contacting BOEM's information collection clearance officer at (703)
787-1025.
4. Scope of Comments
BOEM seeks public comments on the changes in regulatory text and
interpretation contained in this proposed rule. As part of this
rulemaking, BOEM will consider whether this proposed rule or any
additional modifications would improve, clarify, or streamline its OCS
renewable regulations. BOEM also seeks comment on several specific
areas of inquiry for which it is not proposing regulatory text. Based
on comments received and its experience in administering the OCS
renewable energy programs, BOEM may include in the final rule revisions
to any provisions in part 585 that are a logical outgrowth of this
proposed rule, consistent with the Administrative Procedure Act.
5. Suggestions for Preparing Your Comments
(a) Label your comments on this proposed rule with RIN 1010-AE04 or
docket number BOEM-2020-0033.
(b) Organize your comments sequentially by the preamble section
heading or by the proposed rule section number when addressing specific
rule sections.
(c) Explain why you agree or disagree with specific provisions;
suggest alternative provisions or provide substitute language.
(d) Describe your assumptions, information, and data used in
formulating your comments.
(e) Provide specific examples to illustrate your concerns and
suggested alternatives.
(f) Explain your views clearly and succinctly.
(g) Ensure your comments are submitted by the deadline.
III. Preamble Glossary of Abbreviations, Terms, and Acronyms
The following abbreviations, terms, and acronyms are used in the
preamble:
ANCSA Alaska Native Claims Settlement Act
BOEM Bureau of Ocean Energy Management
BSEE Bureau of Safety and Environmental Enforcement
CAA Clean Air Act
CAB Conformity Assessment Body
Call Call for Information and Nominations
CFR Code of Federal Regulations
COP Construction and Operations Plan
CVA Certified Verification Agent
CZMA Coastal Zone Management Act
DNCI Determination of No Competitive Interest
DOE Department of Energy
DOI Department of the Interior
E.O. Executive Order
ESA Endangered Species Act
FDR Facility Design Report
FERC Federal Energy Regulatory Commission
FIR Fabrication and Installation Report
FR Federal Register
FSN Final Sale Notice
GAP General Activities Plan
Met Meteorological
MSA Magnuson-Stevens Act
MMPA Marine Mammal Protection Act
NEPA National Environmental Policy Act
NHPA National Historic Preservation Act
NMFS National Marine Fisheries Service
NOAA National Oceanic and Atmospheric Administration
NWP 5 U.S. Corps of Engineers Nationwide Permit 5
OCS Outer Continental Shelf
OCS Lands Act Outer Continental Shelf Lands Act
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
ONRR Office of Natural Resources Revenue
OSHA Occupational Safety and Health Administration
PDE Project Design Envelope
PPA Power Purchase Agreement
PRA Paperwork Reduction Act
PSN Proposed Sale Notice
RIN Regulation Identifier Number
ROW Right-of-Way Grant
RUE Right-of-Use and Easement Grant
SAP Site Assessment Plan
Secretary Secretary of the Interior
SMS Safety Management System
USACE United States Army Corps of Engineers
U.S.C. United States Code
USCG United States Coast Guard
USEPA United States Environmental Protection Agency
IV. Background
A. Statutory Authority
Congress authorized the Secretary to grant OCS leases for renewable
energy activities when it enacted the Energy Policy Act of 2005, which
amended the OCS Lands Act by adding a new subsection 8(p).\6\ OCS Lands
Act subsection 8(p) authorizes the Secretary to award OCS leases,
right-of-way grants (ROWs), and right-of-use and easement grants (RUEs)
for activities not authorized by other applicable laws that produce, or
that support the production, transportation, or transmission of, energy
from sources other than oil and gas. Subsection 8(p) requires the
Secretary to competitively award such leases, ROWs, and RUEs unless the
Secretary determines following public notice that competitive interest
does not exist. Subsection 8(p) also authorizes the Secretary to issue
regulations to carry out the subsection's grant of authority. The
Secretary first delegated that authority to BOEM's predecessor, MMS.
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\6\ Codified at 43 U.S.C. 1337(p).
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On April 29, 2009, MMS promulgated regulations for leasing and
managing OCS renewable energy activities. On May 19, 2010, the
Secretary signed Secretary's Order 3299, dividing MMS into three
separate agencies: BOEM, the Bureau of Safety and Environmental
Enforcement (BSEE), and the Office of Natural Resources Revenue (ONRR).
Amendment 2 of Secretary's Order 3299 assigned BOEM all renewable
energy-related management functions--including resource evaluation,
planning, leasing, and safety and environmental enforcement functions--
until the ``Assistant Secretary--Land and Minerals Management
determines that an increase in activity justifies transferring the
inspection and enforcement functions to [BSEE].'' \7\ On October 18,
2011, BOEM's regulations were codified at 30 CFR chapter V, and its
renewable energy regulations were,
[[Page 5972]]
and remain, located in 30 CFR part 585.\8\
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\7\ Secretary's Order 3299, Amendment No. 2, August 29, 2011,
https://www.doi.gov/sites/doi.gov/files/elips/documents/3299a2-establishment_of_the_bureau_of_ocean_energy_management_the_bureau_of_safety_and_environmental_enforcement_and_the_office_of_natural_resources_revenue.pdf (last visited Mar. 6, 2019).
\8\ Reorganization of Title 30: Bureaus of Safety and
Environmental Enforcement and Ocean Energy Management, 76 FR 64432
(October 18, 2011).
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B. Existing Regulatory Framework
This section provides an overview of BOEM's existing renewable
energy regulatory framework.
1. Conducting Renewable Energy Activities on the Outer Continental
Shelf
BOEM's regulations specify that a lease, ROW, or RUE is required
before a person may construct, operate, or maintain a renewable energy
facility on the OCS. A lease authorizes the lessee to propose a plan
for development. Following review of the development plans and
associated consultations, BOEM may authorize installation and operation
of a renewable energy facility on a designated portion of the OCS. A
lease also confers the right to one or more project easements necessary
for the use of the lease, which in most cases is a corridor from the
facility to shore for one or more transmission cables.
BOEM may issue a commercial lease or a non-commercial (or limited)
lease for renewable energy activities, subject to obtaining the
necessary approvals. A commercial lease specifies the terms and
conditions for activities that generate, store, or transmit renewable
energy on the OCS for distribution, sale, or other commercial use.
These activities include facility construction and project
decommissioning.
A limited lease specifies the terms and conditions for activities
that support the production of energy on the OCS, but do not produce
energy for sale, distribution, or other commercial use exceeding a
limit specified in the lease. In addition to commercial and limited
leases, a lease may be issued to a Federal agency or a State for
research activities supporting future renewable energy development.
A ROW authorizes the installation and maintenance of cables,
pipelines, and associated facilities on the OCS that involve the
transportation or transmission of any energy product from renewable
energy projects. A RUE authorizes the operation of facilities or other
installations on the OCS that support the production, transportation,
or transmission of electricity or other energy product from any
renewable energy source, including shared transmission solutions. The
term `grant,' as used in this document, refers to ROWs or RUEs issued
pursuant to the regulations of part 585.
BOEM makes leases, ROWs, and RUEs available on a competitive basis,
unless BOEM determines that there is no competitive interest. When
competitive interest is absent, BOEM may issue leases, ROWs, and RUEs
noncompetitively.
BOEM has discretion to issue departures from its regulations. BOEM
may approve departures if they are documented in writing; are
consistent with the requirements of the OCS Lands Act; protect the
environment, public health, and safety; protect the rights of third
parties; and are necessary to facilitate activities on a lease or
grant, conserve natural resources, or protect life, property, the
environment, or archaeological resources.
2. Issuing Competitive Leases and Grants
Subpart B of 30 CFR part 585 describes the process for issuing a
renewable energy lease. BOEM may begin the leasing process by
publishing a request for interest to assess interest in leasing all or
part of a region of the OCS for renewable energy activities. The
request for interest is typically followed by a call for information
and nominations (Call) in the Federal Register. The Call requests that
respondents nominate OCS areas for commercial renewable energy
development. BOEM uses the feedback from the request for interest and
the Call to assess competitive interest in specified OCS areas.
BOEM also will consider unsolicited requests for a lease on a case-
by-case basis. If BOEM determines that competitive interest exists for
an area nominated through an unsolicited request, BOEM will use the
competitive process if it decides that a lease in that area is
appropriate.
After potential OCS renewable energy development areas are
identified, BOEM evaluates the potential impacts of leasing those areas
on the human, marine, and coastal environments under the OCS Lands Act
and consults with Federal agencies and affected States regarding the
requirements of other potentially applicable Federal statutes,
including the National Environmental Policy Act (NEPA), Coastal Zone
Management Act (CZMA), Endangered Species Act (ESA), Magnuson-Stevens
Act (MSA), Marine Mammal Protection Act (MMPA), and National Historic
Preservation Act (NHPA), National Marine Sanctuaries Act (NMSA), and
Native American Graves Protection and Repatriation Act (NAGPRA).
Under the competitive process, BOEM initiates a sale by publishing
a proposed sale notice (PSN) in the Federal Register detailing the
areas proposed for leasing and the competitive leasing process for
those areas, including auction procedures and lease provisions and
conditions. The PSN also invites public comment on the areas and
proposed auction procedures. BOEM assesses the comments received in
response to the PSN and may incorporate changes in the final sale
notice (FSN) in response to these comments. The FSN is published in the
Federal Register at least 30-calendar days before the auction date. The
FSN finalizes the areas offered for lease, auction procedures, and
lease provisions based on the PSN. The FSN also provides details
regarding a mock auction, which is an optional practice auction
intended to familiarize bidders with auction procedures.
BOEM may end the competitive process for a specific lease area at
any time before the FSN if it believes competitive interest no longer
exists. BOEM does so by issuing a notice and considering the responsive
comments to reassess competitive interest.
If BOEM concludes that competitive interest is absent in a lease
area, BOEM may publish a determination of no competitive interest
(DNCI) in the Federal Register. BOEM then may offer a noncompetitive
lease to the sole interested developer, if one exists, after consulting
potentially affected Federal agencies, State and local governments, and
federally recognized Tribes (Tribes), and, if applicable, Alaska Native
Claims Settlement Act (ANCSA) corporations, and after the interested
developer submits the requisite certifications, information, and
payments.
If BOEM concludes that competitive interest exists, BOEM may
proceed with an auction on the date specified in the FSN. Existing
regulations specify four auction types and six bidding systems from
which BOEM may choose to conduct its auctions. The auction format and
bidding system for a specific auction are specified in the FSN. Among
the auction types is multiple factor bidding, in which BOEM may allow
bids with a non-monetary component based on certain beneficial
attributes identified in the FSN, including technical merit, financing
and economics, and compatibility with State and local needs.
BOEM conducts an auction for the relevant lease areas in accordance
with the FSN. At the end of the auction, BOEM determines the winning
bidder for each area to be leased. BOEM may reject any bid if it
determines that the bid was inadequate, illegal, or the result of anti-
competitive behavior, administrative error, or the presence of unusual
bidding patterns.
[[Page 5973]]
Once a winning bidder has been identified, BOEM implements a
statutorily mandated 30-day antitrust review by the Department of
Justice and Federal Trade Commission. If the antitrust review does not
raise concerns and no appeals of the auction result are pending, BOEM
typically accepts the winning bid within 90-calendar days of the
auction and sends three unsigned copies of the lease to the winning
bidder. The winning bidder has 10-business days from date of receipt to
sign these copies, return them to BOEM, provide financial assurance,
and pay the balance due on its bid. BOEM may extend the deadline for
good cause. The winner must pay a sum equal to the first 12 months'
rent within 45-calendar days of receiving the unsigned copies of the
lease. After receiving the signed copies, BOEM executes the lease on
behalf of the United States, and sends one fully executed copy to the
winning bidder. BOEM reserves the right to withdraw an OCS area at any
time prior to lease execution, whereupon BOEM would refund the bid
deposit.
A bidder may appeal to the BOEM Director within 15-business days of
bid rejection to seek reconsideration. BOEM will send a response either
affirming or reversing the final bid decision.
Subpart C of 30 CFR part 585 describes the process for issuing ROWs
and RUEs. BOEM conducts the competitive process for awarding a ROW or
RUE using procedures similar to those for a lease. This would involve
publishing a public notice, describing the parameters of the project in
order to give affected and interested parties an opportunity to comment
on the proposed ROW grant or RUE grant area. If such interest exists,
BOEM would conduct a competitive auction for issuing the ROW grant or
RUE grant. The auction process for ROW grants and RUE grants, following
the same process for leases set forth in Sec. Sec. 585.211 through
585.225.
3. Administration of Leases and Grants
Subpart D of 30 CFR part 585 describes the various processes that
BOEM can use to enforce the terms of its leases and grants once they
have been issued. This subpart also describes the requirements for
transferring ownership interests and modifying the duration of a lease
or grant.
BOEM has broad enforcement discretion under this subpart and may
act whenever a lessee or grant holder has violated a term or condition
of a lease or grant, an order or approval, or a regulation. BOEM's
potential remedies include corrective actions, a cessation order, civil
penalties, and lease or grant termination.
Lessees and grant holders are allowed to designate an operator to
act on their behalf to perform activities on a lease or grant. Whenever
the regulations in part 585 require the lessee or grant holder to
conduct an activity in a prescribed manner, the lessee or grant holder
and the operator are jointly and severally responsible for complying
with the regulations. Lessees and grant holders may assign all or part
of their lease or grant interests using procedures set forth in this
subpart; assignors remain jointly and severally liable for liabilities
that accrued before BOEM approves the assignment. An assignee must be
legally, technically, and financially qualified to hold the lease or
grant under 30 CFR part 585.
BOEM's regulations contain several mechanisms for extending the
lease duration. The term of a lease or grant can be suspended through
request by a lessee or grant holder that is approved by BOEM, through a
BOEM order, or when necessary to comply with a judicial decree, avoid
an imminent threat of irreparable harm, or for reasons of national
security. A suspension has the effect of pausing the running of the
term of a lease, thereby extending the termination date by the same
length as the pause. In BOEM's discretion, a suspension of the lease
may also suspend lease payments. BOEM also may approve the renewal of a
lease or grant term requested by a lessee or grant holder based on an
enumerated set of criteria.
There are numerous means by which a lease or grant may be
terminated in whole or in part. First, it may be terminated through
expiration of the lease or grant term without a renewal. Second, BOEM
may cancel a lease or grant for reasons enumerated in the regulations,
including proof that the lease or grant was obtained fraudulently.
Third, BOEM may require a partial cancellation of a lease by reducing
the area of the leasehold. Fourth, a lessee or grant holder may
voluntarily relinquish some or all of its lease or grant, subject to
BOEM approval.
4. Payments and Financial Assurance
Lessees and grant holders are required to make regular payments to
the U.S. Treasury in exchange for use of their leases and grants. Under
the OCS Lands Act, BOEM is required to ensure that U.S. taxpayers
obtain a fair return from OCS renewable energy leases, ROWs, and
RUEs.\9\ Lessees and grant holders also must provide financial
assurance--in the form of a bond or other qualifying instrument--in an
amount sufficient to guarantee compliance with terms and conditions of
their leases and grants. Subpart E of BOEM's regulations detail these
respective obligations.
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\9\ 43 U.S.C. 1337(p)(2)(A).
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Before an entity may bid to acquire a lease or grant competitively,
it must submit a bid deposit that is applied to the winning bid and
refunded to unsuccessful bidders. Obtaining a lease (but not a grant)
noncompetitively requires the payment of an acquisition fee. Lessees
and grant holders must make annual rental payments that are calculated
according to the acreage of the lease or grant. Rental payments for
ROWs are based on the length of the right-of-way as well as the
acreage. Under a commercial lease, an operating fee replaces rental
payments when commercial operations begin. The operating fee is
calculated using a formula set forth in the regulations. The
regulations provide a mechanism for lessees and grant holders to
request a reduction or waiver of their payments. Under OCS Lands Act
section 8(g), BOEM will distribute offshore renewable energy revenue
among eligible coastal States for OCS projects that are wholly or
partially located within three miles seaward of a State's submerged
lands.
Financial assurance must be provided at various stages in the
commercial development process. A lessee must provide financial
assurance in the amount of $100,000 before acquiring a commercial lease
and supplemental financial assurance before approval of a site
assessment plan (SAP) and a construction and operations plan (COP), and
before commencement of construction. BOEM bases its financial assurance
requirements on calculations of the lessee's cumulative liabilities and
obligations, including payments due the following year, and the cost of
decommissioning facilities on the lease. Financial assurance
requirements for limited leases and grants are calculated in a similar
fashion, although the initial financial assurance requirement is
$300,000.
BOEM imposes several general requirements that must be met by any
financial assurance and provides guidance on acceptable financial
instruments. Such instruments include surety bonds, Treasury
securities, AAA-rated securities, insurance, self-insurance, third-
party guaranties, and decommissioning accounts funded on a schedule
approved by BOEM. Subpart E also sets forth procedures to follow if a
lessee's or grant holder's financial assurance lapses or reduces in
value or
[[Page 5974]]
if a surety prematurely terminates a lessee's or a grant holder's
financial assurance. This subpart also explains when and how BOEM will
call for forfeiture of financial assurance. BOEM requires the
maintenance of financial assurance until no less than 7 years after a
lease or grant ends.
5. Plan Submittal and Review
Once a lease has been issued, a lessee may, but is not required to,
conduct site assessment activities to assess the energy potential of a
commercial renewable energy project in the lease area and site
characterization surveys to inform project design and the preparation
of plans. Site assessment activities include the installation and use
of meteorological towers and buoys to gather oceanographic and
meteorological information. A lessee planning to install site
assessment facilities must submit a SAP to BOEM. The SAP must include
general structural, design, fabrication, and installation information
for each type of facility associated with the proposed site assessment
activities, and must also include information about the environment
gathered from geological and geophysical surveys, hazard surveys,
baseline environmental surveys, and archaeological surveys that the
lessee must conduct.
The lessee must submit its SAP or a combined SAP/COP no later than
12 months after the date of lease issuance. BOEM may approve or
disapprove the SAP or may approve it with modifications. A commercial
lease has a term of five years for the lessee to conduct site
assessment activities and to submit a COP; the five-year site
assessment term begins upon approval of the SAP. BOEM will determine if
the proposed facilities described in the SAP are complex or
significant. If BOEM determines that they are not complex or
significant, the lessee may begin its proposed site assessment
activities when BOEM approves the SAP. If BOEM determines the
facilities are complex or significant, the lessee must comply with
additional requirements in subpart G of 30 CFR part 585 before
beginning its proposed site assessment activities. Implementation of
activities described in the SAP, whether or not deemed complex or
significant, is required to follow a safety management system (SMS)
that accounts for and mitigates risks to personnel and the environment
associated with such activities. SAP approval does not authorize the
lessee to build and install facilities for commercial energy
production.
Before fabricating and installing any facility for commercial
operations, a lessee must submit a COP for BOEM review and approval.
The COP must be submitted at least 6 months before the five-year site
assessment term expires.
The COP must describe the facilities that a lessee will construct
or use for its commercial operations, including any project easements
and associated onshore and support facilities. The COP also must
describe all proposed activities the lessee intends to conduct on its
lease, including construction, commercial operations, and
decommissioning. The COP must include general structural and project
design, fabrication, and installation information for each type of
structure associated with the project, as well as the results of
geological, geotechnical, biological, and archaeological surveys
undertaken in support of the project. BOEM may approve or disapprove
the lessee's COP or may approve it with modifications.
Activities conducted under a limited lease, ROW, or RUE must be
approved by BOEM under a general activities plan (GAP). Like a SAP, the
GAP must be submitted no later than 12 months after the date of lease
or grant issuance. The GAP must describe the facilities that a lessee
or grant holder will construct or use for its proposed activities,
including any project easements and any associated onshore and support
facilities. The GAP must describe the design, fabrication,
construction, use, and decommissioning of those facilities. The GAP
also must include the results of geological, geotechnical, biological,
and archaeological surveys undertaken in support of the proposed
activities.
BOEM may approve or disapprove the lessee's GAP or may approve it
with modifications. BOEM also will determine if the proposed facilities
described in the GAP are complex or significant. If BOEM determines
that they are not complex or significant, the proposed activities may
begin when BOEM approves the GAP. If BOEM determines the facilities are
complex or significant, the lessee must comply with additional
requirements in subpart G of 30 CFR part 585 before beginning the
proposed activities.
6. Design, Fabrication, and Installation of Facilities
Subpart G requires detailed design, fabrication, and installation
information for each complex or significant facility that a lessee or
grant holder proposes to operate.\10\ The purpose of subpart G is to
ensure that facilities operate in a safe manner using accepted
engineering practices in conformance with approved plans.
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\10\ By definition, all facilities proposed in a COP are complex
or significant. BOEM makes a case-by-case determination about
whether facilities proposed in a SAP or GAP are complex or
significant.
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The regulations achieve this objective primarily by requiring an
independent assessment of a facility's design, fabrication, and
installation by one or more outside experts called certified
verification agents (CVAs). The CVA should be ``experienced in the
design, fabrication, and installation of offshore marine facilities or
structures, [and] will conduct specified third-party reviews,
inspections, and verifications.'' \11\ Although hired by a lessee or
grant holder, the CVA reports directly to BOEM. The CVA must not act in
a capacity that creates a conflict of interest or the appearance of a
conflict of interest. Subpart G outlines the circumstances
necessitating a CVA, the CVA nomination and waiver processes, and the
duties of the CVA. BOEM regulations contemplate that BOEM will approve
or disapprove the CVA nomination or waiver request during its review of
the SAP, COP, and GAP. If the CVA requirement is waived, the lessee's
or grant holder's project engineer must perform the same duties and
responsibilities as the CVA, except that the project engineer would not
be acting as an independent third-party reviewer.
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\11\ 30 CFR 585.112.
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After obtaining BOEM's approval of the SAP, COP, or GAP, a lessee
or grant holder must submit an FDR to BOEM describing the final design
of all proposed facilities. The CVA must certify that the facilities
are designed to withstand the environmental and functional load
conditions appropriate for the intended service life at the proposed
location. The CVA must also use good engineering judgment and practice
in conducting independent assessments of the commissioning of critical
safety systems.
Before any fabrication (e.g., assembly) or installation of facility
components takes place on the OCS, a lessee or grant holder must submit
an FIR to BOEM describing how the facilities will be fabricated and
installed consistent with accepted industry standards, the approved
SAP, COP, or GAP, and the FDR. The FIR must also describe how
fabrication of facility components that took place outside of the OCS
(e.g., manufacturing) is consistent with accepted industry standards,
the approved SAP, COP, or GAP, and the FDR. However, fabrication of
facility components outside of the OCS does not
[[Page 5975]]
require the submittal of an FDR and FIR. The CVA must certify that the
facilities were fabricated and installed in such a manner. The lessee
or grant holder may begin approved activities 30-calendar days after
BOEM deems submitted the fabrication and installation certification
from the CVA, unless BOEM objects in the interim. If BOEM objects to
the CVA verification report, the lessee or grant holder must resolve
those objections to BOEM's satisfaction before commencing approved
activities.
7. Facility Operations
The conduct of lease or grant activities under an approved plan is
covered by subpart H. BOEM requires that approved activities be
conducted in a way that ensures safety, prevents undue harm or damage
to natural resources, uses trained personnel, and complies with
approved plans. Activities must comply with the various wildlife
protection statutes--particularly the MMPA and ESA. Lessees and grant
holders also must follow prescribed procedures if they encounter
potential archaeological resources while conducting approved
activities. This subpart contains numerous operational requirements,
including safety management systems, incident reporting, inspections,
and self-inspections.
8. Decommissioning
Except when otherwise authorized by BOEM, lessees and grant holders
must decommission (i.e., remove) all facilities and clear the seafloor
of all obstructions created by their activities within 2 years
following termination of their lease or grant or earlier if BOEM
determines a facility is no longer useful for operations. Subpart I
sets forth BOEM's decommissioning requirements and process.
C. Need for Rulemaking
The existing regulations were finalized in 2009, when the OCS
renewable energy industry in the United States was in its infancy. In
response to Executive Order (E.O.) 13610, the Department determined
that aspects of BOEM's renewable energy regulations could be made less
burdensome and costly while clarifying ambiguities and filling gaps
that have become apparent during the past 13 years. Through its
experience and engagement with industry and other stakeholders, the
Department has identified opportunities for reducing burdens, making
regulations more efficient, clarifying ambiguities, and correcting
errors. E.O. 14008, ``Tackling the Climate Crisis at Home and Abroad,''
states that it is the policy of the U.S. ``to organize and deploy the
full capacity of its agencies to combat the climate crisis to implement
a Government-wide approach that reduces climate pollution in every
sector of the economy; increases resilience to the impacts of climate
change; protects public health; conserves our lands, waters, and
biodiversity; delivers environmental justice; and spurs well-paying
union jobs and economic growth, especially through innovation,
commercialization, and deployment of clean energy technologies and
infrastructure.'' In furtherance of the goals of E.O. 14008, the
Departments of the Interior, Energy, and Commerce established a target
to deploy 30 gigawatts (30,000 megawatts) of offshore wind by 2030,
creating nearly 80,000 jobs.
These proposed revisions to BOEM's regulations would facilitate
safe and environmentally sound renewable energy production in offshore
waters and help the Biden-Harris Administration meet its offshore wind
energy commitment. This proposed rulemaking would implement reforms
identified by BOEM and BSEE or suggested by industry, align regulations
to practices that have evolved since 2009, and reduce regulatory
uncertainty. The proposed regulations are estimated to save lessees and
grant holders about $1 billion over a 20-year period.\12\ The proposed
changes would continue to protect environmental and cultural resources
and to ensure that U.S. taxpayers receive a fair return from OCS
renewable energy activities.
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\12\ See supra note 2.
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The Department also plans to issue another rule related to its OCS
renewable energy program. That rule would reorganize the current
renewable energy regulations between BOEM and BSEE consistent with
Secretary's Order 3299, as amended, and the Departmental Manual.
Specifically, that rule would move regulations pertaining to safety,
environmental oversight, and enforcement from BOEM to BSEE under 30 CFR
part 285. Following that rulemaking, any future OCS renewable energy
rulemaking, including any rule that finalizes the provisions of this
proposed rule, would reflect the reorganized regulations. The
Department will continue to work closely with both BOEM and BSEE in
finalizing provisions of this proposed rule within their respective
delegated authorities.
V. Analytical Overview of the Proposed Rule
The proposed rule contains seven main components that would
accomplish the following: (1) eliminate site assessment plan
requirements for met buoys; (2) adopt a flexible and performance-based
approach to geophysical and geotechnical surveying; (3) conform the CVA
review standard to industry practice and provide flexibility in the CVA
nomination and engineering report submittal process; (4) clarify
auction procedures; (5) align financial assurances with the risk to
U.S. taxpayers and permit incremental funding of decommissioning
accounts; (6) clarify and enhance safety management requirements; and
(7) make other revisions and technical corrections that would improve
BOEM's OCS renewable regulatory program and fix technical errors and
inconsistencies. These components are analyzed below.
A. Site Assessment Facilities
1. Existing Regulations
In its regulations and guidance documents, BOEM uses the term
``site assessment'' to describe the activities used to estimate the OCS
renewable energy resource and baseline ocean conditions before any
potential development occurs. BOEM's regulations currently contemplate
that a lessee will deploy at least one facility, typically a met tower
or buoy, to conduct site assessment activities before submitting a COP.
Data from these met buoys and towers are used to design the offshore
renewable energy project (e.g., the turbine array for a wind project)
for a particular OCS area, calculate its energy generation potential,
estimate its revenue potential, and obtain project financing. At the
time BOEM promulgated its regulations in 2009, the industry standard
for site assessment activities was fixed-bottom met towers pile-driven
into the seabed. BOEM crafted its requirements for the approval of site
assessment activities under the assumption that most lessees would
continue to install met towers.
Since 2009, the offshore wind industry has transitioned to met
buoys, which are both less costly and less environmentally impactful
than fixed bottom structures. Met buoys are typically between 6 and 12
meters in length, attached to the seabed with a chain and mooring
anchor, and deployed for no more than 5 years. Met buoys include
different types of instrumentation to collect a variety of data,
including wind speed and direction; air and water temperature; wave
height; water currents; ambient
[[Page 5976]]
noise; and the presence of benthic communities, fish, marine mammals,
birds, and bats.\13\ Scientific devices similar to met buoys are used
widely for research and commercial applications and by other Federal
agencies (e.g., National Oceanic and Atmospheric Administration and the
Department of Energy (DOE)).
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\13\ Dep't of Energy & Dep't Of Interior, National Offshore Wind
Strategy (2016) [hereinafter Offshore Wind Strategy], https://www.boem.gov/National-Offshore-Wind-Strategy. At this time, met
buoys deployed for this purpose use Light Detection and Ranging
(LIDAR) technology, which is capable of collecting measurements to
the same height as a typical met tower and the hub height of
proposed wind turbines.
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Before installing any facilities for site assessment activities on
its commercial lease, a lessee must submit a SAP for BOEM approval.\14\
The SAP ``describes the activities (e.g., installation of [met] towers,
[met] buoys) [the lessee] plan[s] to perform for the characterization
of [its] commercial lease, including [its] project easement, or to test
technology devices.'' \15\ The SAP must include the information
required by 30 CFR 585.610 through 585.611.\16\ BOEM may request
additional information during its review and may specify terms and
conditions that must be incorporated into the SAP before approval. In
BOEM's experience, a lessee invests substantial time preparing the SAP
and awaiting BOEM's approval. BOEM requires SAP facilities to be
decommissioned under subpart I of the current part 585 and requires
financial assurance to cover the cost of their decommissioning.\17\
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\14\ 30 CFR 585.600(a).
\15\ 30 CFR 585.605(a).
\16\ To improve readability and avoid any confusion, all further
regulatory section references in the main body of this notice are to
30 CFR part 585 unless otherwise specified. Footnotes will contain
the complete citation.
\17\ 30 CFR 585.516(a)(2).
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If a developer wants to conduct site assessment activities at a
particular OCS location without a commercial lease, a limited lease may
be required. BOEM's regulations require a lease, easement, or ROW for
activities that ``support generation of electricity or other energy
product derived from a renewable energy resource on any part of the
OCS.'' \18\ BOEM has the discretion to determine whether an activity
``supports generation'' of electricity and, therefore, requires a
lease.\19\ BOEM issued leases for site assessment activities early in
the OCS renewable energy program, but has not received a formal request
for a limited lease for site assessment activities since its
regulations took effect in 2009.
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\18\ 30 CFR 585.104.
\19\ Office of Renewable Energy Programs, Bureau of Ocean Energy
Mgmt., Guidelines for Activities Requiring Authorization for
Renewable Energy Development on the Outer Continental Shelf Pursuant
to 30 CFR part 585 (2020), available at https://www.boem.gov/guidance.
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If a limited lease is required, a developer must first notify BOEM
that it is requesting a lease for a specific portion of the OCS.\20\
BOEM then issues a public notice in the Federal Register to determine
whether competitive interest exists in the requested area. If there is
no such interest, BOEM may negotiate a limited lease with the
developer.\21\ If BOEM and the developer agree to terms, the developer
has 12 months to submit a GAP under Sec. Sec. 585.640 through 585.647
for BOEM's review and approval. BOEM may request additional information
during its review and may specify terms and conditions that must be
incorporated into the GAP before approval.\22\ Although BOEM has yet to
issue a limited lease, BOEM estimates that it could take 3 years
between the submission of a limited lease application and authorization
to conduct activities on the lease.
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\20\ 30 CFR 585.230.
\21\ 30 CFR 585.231.
\22\ 30 CFR 585.648.
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2. Why the Existing Regulations Should Be Updated
BOEM has determined that its regulations are overly burdensome for
authorizing met buoys for site assessment activities for the reasons
outlined below.
(a) Minimal Environmental Impacts of Meteorological Buoys
After 10 years of analyzing the environmental impacts of
deployment, operation, and removal of met buoys, BOEM has concluded
that, when properly sited, these buoys cause minimal harm to the
marine, coastal, and human environments.\23\ Given a met buoy's
surficial seabed disturbance during a limited deployment time and
BOEM's repeated analysis of these devices, BOEM has concluded that
their potential environmental effects are short-term and minimal,
assuming sensitive benthic habitat and archaeological sites are
avoided.\24\ Proper deployment will be ensured through the USACE
Nationwide Permit 5 (NWP 5), which is reasonably tailored to buoys and
is subject to the same applicable Federal environmental laws as BOEM's
authorization of met buoys. USACE's NWP 5 procedures may require a pre-
construction notification under the general conditions for permits,
depending on the presence of certain resources, e.g., listed species,
critical habitat, or essential fish habitat. These procedures are the
same for vast majority of buoys installed offshore; it is only the
renewable energy met buoys that require a SAP under the current BOEM
regulations.
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\23\ See, e.g., Office of Renewable Energy Programs, Bureau of
Ocean Energy Mgmt., Commercial Wind Lease Issuance and Site
Assessment Activities on the Atlantic Outer Continental Shelf
Offshore New Jersey, Delaware, Maryland, and Virginia, Final
Environmental Assessment (2012), available at https://www.boem.gov/uploadedFiles/BOEM/Renewable_Energy_Program/Smart_from_the_Start/Mid-Atlantic_Final_EA_012012.pdf; Office of Renewable Energy
Programs, Bureau of Ocean Energy Mgmt., Commercial Wind Lease
Issuance and Site Assessment Activities on the Atlantic Outer
Continental Shelf Offshore Massachusetts, Revised Environmental
Assessment (2014), available at https://www.boem.gov/Revised-MA-EA-2014/); and Office of Renewable Energy Programs, Bureau of Ocean
Energy Mgmt., Commercial Wind Lease Issuance and Site Assessment
Activities on the Atlantic Outer Continental Shelf Offshore New
York, Revised Environmental Assessment (2016), available at https://www.boem.gov/NY-EA-FONSI-2016/.
\24\ See supra note 22; see also Offshore Wind Strategy, supra
note 12, at 31. Another concern is the potential for marine mammal
entanglement in anchor chains. However, the Army Corps of Engineers
will require mitigation of such risks pursuant to its consultations
with NMFS, regardless of any BOEM permit.
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BOEM determined in 2016 that met buoys meet the criteria for a
nondestructive data collection categorical exclusion from the potential
requirement to prepare an environmental impact statement under
NEPA.\25\ Consequently, BOEM's existing SAP (Sec. Sec. 585.605 through
585.618) and GAP (Sec. Sec. 585.640 through 585.657) requirements
governing on-lease and off-lease site assessment activities,
respectively, are disproportionate to the potential environmental
impacts caused by met buoys.
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\25\ See 43 CFR 46.210(e).
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(b) Duplicative Regulations
BOEM's regulation of site assessment activities is duplicative of
the USACE's permitting requirements under section 10 of the Rivers and
Harbors Act, which applies to obstructions in U.S. navigable waters,
including the OCS.\26\ The USACE typically authorizes data collection
buoys under its NWP 5 for scientific measurement devices, or its
equivalent, depending on the geographic district in which the buoy is
proposed. NWP 5 addresses the most critical impacts of met buoys--
environmental resources, archaeological resources, safety, and
navigation--while also requiring that such devices be removed ``to the
maximum extent practicable and the site restored to pre-construction
elevations.'' \27\ The
[[Page 5977]]
USACE's permitting process is subject to the same Federal laws
concerning environmental analyses and inter-agency consultations that
govern BOEM's authorization of met buoys--including NEPA, ESA, MMPA,
MSA, NMSA, and NHPA. To date, USACE has participated in BOEM's
environmental reviews as a cooperating agency under 40 CFR 1501.6.
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\26\ 33 U.S.C. 403.
\27\ U.S. Army Corps of Engineers, Nationwide Permit 5--
Scientific Measurement Devices (2017), available at https://www.swt.usace.army.mil/Portals/41/docs/missions/regulatory/NationwidePermits/Nationwide%20Permit%2005%20-%20Scientific%20Measurement%20Devices.pdf?ver=2017-03-31-150714-880).
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The deployment of a met buoy or tower to collect data for potential
OCS renewable energy development is subject to two regulatory regimes--
BOEM's and USACE's--that largely analyze the same environmental
impacts. However, the same type of buoy or tower is subject to only
USACE's regime if deployed for other purposes. As discussed below, the
proposed rule would resolve this duplication of regulatory compliance
by eliminating BOEM's SAP requirement for met buoys.
(c) Requirement for Air Permits for Meteorological Buoys
Under the Clean Air Act (CAA), a party proposing to construct a
source of air pollution on the OCS that meets the CAA definition of an
``OCS source'' is required to apply for an air permit before
construction. The CAA definition of an ``OCS source'' of air pollution
includes those sources that have the potential to emit air pollutants,
are deployed on the OCS, and are regulated or authorized under the OCS
Lands Act.\28\ Met buoys to support renewable energy development,
authorized by BOEM, are currently included as OCS sources because some
contain backup diesel generators that emit air pollutants. These met
buoys frequently are required to have a CAA permit when deployed in OCS
areas under U.S. Environmental Protection Agency (USEPA) jurisdiction,
specifically offshore the U.S. Atlantic and Pacific coasts. While
emissions from buoy backup generators are minimal due to their limited
use, the CAA has no de minimis exception to the air permit requirement.
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\28\ 42 U.S.C. 7627(a)(4)(C).
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In some instances, obtaining OCS air quality permit for a met buoy
can take longer than obtaining SAP approval from BOEM. Under the
proposed rule, met buoys deployed in OCS areas solely under USEPA's
jurisdiction reasonably and appropriately would no longer require CAA
permits since they would neither be regulated nor authorized under the
OCS Lands Act and, consequently, would not meet the definition of an
``OCS source.'' This conclusion also takes into consideration that
these buoys are anticipated to have minimal emissions, there is a
significant time and cost associated with obtaining a CAA permit, and
similar buoys authorized under other statutes do not require a CAA
permit (e.g., scientific measurement devices permitted under NWP 5).
(d) European Practice
BOEM is aware that European countries with mature offshore wind
industries and permitting regimes have more streamlined permitting
processes for site assessment activities. In several European
countries, including Denmark and The Netherlands, the government will
typically undertake the site characterization and site assessment work
as part of its ``pre-development'' efforts before a tender offering
(i.e., lease sale in the U.S. model). In the U.K. model, which shares
similarities with the U.S. regulatory framework, the developer is
responsible for undertaking this work. Pre-construction site assessment
activities, including the deployment of met towers and buoys, are
described in a separate submission to the U.K. Marine Management
Organization following the developer's receipt of governmental
approval. Recent met buoy case files show that these site assessment
applications are typically approved in roughly 30-calendar days. BOEM
has received multiple comments from industry criticizing the length of
its present met buoy authorization process and urging BOEM to learn
from the European practice. The proposed rule would move the United
States closer to Europe's more efficient approach to site assessment
activities.
(e) Lack of Off-Lease Site Assessment
BOEM believes that public and private entities alike should be
encouraged to collect OCS meteorological and oceanographic data for
potential renewable energy development in areas not yet leased
commercially. BOEM is aware of only four met buoys (and no met towers)
that have been deployed on the OCS for such purposes: two off the east
coast and two research buoys managed by the DOE off the coast of
California. BOEM is concerned that the perceived difficulty of
obtaining a limited lease and subsequent GAP approval is deterring off-
lease site assessment activities.
3. Proposed Changes
The proposed rule would eliminate BOEM's duplicative authorizations
for on-lease site assessment facilities without an engineered
foundation (primarily met buoys) and all off-lease site assessment
facilities. BOEM proposes to retain its SAP process for facilities
installed on a commercial lease using an engineered foundation, such as
met towers.
(a) On-Lease Meteorological Buoys
The proposed rule would eliminate SAPs for site assessment
activities that do not use an engineered foundation, defined as a met
tower or other facility installed using a fixed-bottom foundation.\29\
Met buoys would be exempt from the SAP requirement unless deployed with
an engineered foundation, which BOEM expects will occur rarely. A SAP
would still be required for met towers and other site assessment
facilities with engineered foundations. BOEM would also recommend that
lessees consult with BOEM and other Federal agencies with jurisdiction
over submerged lands in off lease areas before deploying site
assessment facilities with novel anchoring technologies absent a BOEM-
approved SAP. Independent of the need to submit a SAP for approval, all
site assessment activities are required to be performed under an SMS
that accounts for and mitigates risks to personnel and the environment
associated with the assessment activities. In any case where an NMSA
permit may be required, NOAA may require certain financial assurances
for infrastructure removal activities potentially required under
permit.
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\29\ Unlike a simple anchor, a fixed-bottom foundation generally
requires professional engineering design and assessment of sediment,
meteorological, and oceanographic conditions. Examples of fixed
bottom foundations are monopiles, jackets with driven piles or
suction buckets, and gravity-based foundations.
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The proposed rule also would amend the decommissioning regulations
in the proposed subpart J to ensure that lessees are not subject to
duplicative or conflicting requirements for the removal of met buoys.
Under the proposed rule, a lessee would decommission its met buoys
according to USACE requirements in lieu of submitting a decommissioning
plan for BOEM's approval. In the unlikely event that USACE did not
require site clearance, BOEM would retain the authority to require
decommissioning of the buoys under proposed Sec. 585.900(c) pursuant
to OCS Lands Act subsection 8(p)(6)(C) so that the United States can
fulfill its international treaty obligation to restore the lease
area.\30\ BOEM also would no
[[Page 5978]]
longer routinely require supplemental financial assurance for
decommissioning of met buoys. In most cases, the buoys are authorized
and installed pursuant to USACE regulations and USACE would assume
responsibility for ensuring that any required removal takes place; in
these circumstances, the USACE would be responsible for obtaining any
financial assurance necessary.
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\30\ See 43 U.S.C. 1337(p)(6)(C) and article 5.5 of the
Convention on the Continental Shelf, T U.N. Doc. A/CONF. 13/L.55,
T.I.A.S. 5578 and 15 U.S.T. 471. Any installations which are
abandoned or disused must be entirely removed [emphasis added].
---------------------------------------------------------------------------
These changes should allow lessees to deploy met buoys in
substantially less time and at a reduced cost because a SAP would no
longer be required. Instead, lessees would deploy a met buoy under the
authorization of a USACE NWP 5 scientific device permit or the USACE
district equivalent. BOEM estimates one buoy would be permitted
annually, and this permitting change would save approximately $1.1
million of compliance costs in each instance.\31\ BOEM also anticipates
that this change could eliminate the need for lessees to obtain a CAA
air quality permit from the USEPA for on-lease met buoys with backup
diesel generators because these buoys would fall outside the CAA
definition of an ``OCS source.'' BOEM is not including the potential
savings for a CAA permit in its economic analysis because the
underlying burden arises from another Federal agency's regulatory
requirements (appropriately, USEPA could claim any CAA burden
reduction).
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\31\ See infra part VII.B.2 for overview of this proposed rule's
economic analysis.
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This approach likely would result in regulatory relief from the SAP
requirement for nearly all future development of OCS renewable
resources. Most current lessees have proposed conducting site
assessments with met buoys. BOEM expects that pattern to continue for
the foreseeable future. Off-lease site assessment activities would fall
outside BOEM's control, though remain within USACE's, and should they
occur within a national marine sanctuary or in the vicinity of a
national marine sanctuary, activities may require NMSA permits or
consultations.
BOEM proposes several conforming ancillary regulatory changes to
accommodate the SAP changes outlined in this section. These changes
include merging the preliminary and site assessment periods of the
lease (see the analysis of proposed changes to Sec. 585.235 in section
VI.C.), eliminating deadlines for SAP submittals, decoupling the
requirement to operate under an SMS from SAP submission (i.e., all site
assessment activities must be conducted under an SMS, regardless of
whether a SAP is required), and removing references to terminology that
relates primarily to buoys (e.g., anchors, chains, mooring) in the SAP
regulations.
For several reasons, this approach would not increase environmental
impacts and would be subject to the same environmental review and
consultations currently performed by BOEM. First, BOEM will prepare
environmental analysis under NEPA and will consult under the ESA prior
to a lease sale. That environmental analysis will include potential
impacts from activities that are expected to occur following lease
issuance after the sale (e.g., site characterization and site
assessment activities). Second, NWP 5 complies with current Federal
environmental laws and governs deployment of other scientific
measurement devices that result in no more than minimal individual and
cumulative adverse environmental impacts. Lessees must ensure that the
placement of met buoys and towers conforms with NWP 5. The USACE
general conditions for nationwide permits require interagency
consultations if warranted by the location and activities proposed.
USACE considers cumulative impacts in the re-issuance of the nationwide
permits every 5 years. Third, based on BOEM's experience in approving
SAPs to date, BOEM has already documented the environmental impacts of
met buoys to be minimal. Fourth, those who are conducting site
assessment activities are still required to conduct all such activities
under an SMS that accounts for and mitigates risks to personnel and the
environment. Fifth, BOEM would not disclaim all oversight of site
assessment activities. As noted above, the potential environmental
impacts of met towers and facilities with engineered foundations are
both more variable and more significant for certain marine resources.
Therefore, BOEM would continue to require SAPs for such facilities.
Finally, BOEM may consider adding stipulations to future leases
relating to site assessment activities not covered by a SAP. BOEM
anticipates that such stipulations would ensure BOEM is aware of
activities conducted on its lease and that such activities are required
to be performed in accordance with any applicable USACE requirements
and best industry practices.
BOEM notes that the proposed rule likely would require revisions to
BOEM's programmatic agreements with consulting parties under the NHPA.
Most of BOEM's existing agreements anticipate that it would review and
approve plans relating to all site assessment activities.
BOEM completed an informal programmatic section 7 consultation
under the Endangered Species Act with the National Marine Fisheries
Service (NMFS) in 2021. This informal consultation covered leasing,
site characterization, and site assessment activities. It is expected
to cover most, if not all, USACE NWP 5 permits issued for on-lease met
buoys in the three Atlantic Renewable Energy Regions (North Atlantic
Planning Area, Mid-Atlantic Planning Area, and South Atlantic Planning
Area). This consultation concluded that the activities considered are
not likely to adversely affect any ESA-listed species or critical
habitat.\32\ Activities are considered not likely to adversely affect
as long as they are within the scope of what was analyzed in the
consultation, meet the stated project design criteria and apply the
prescribed conservation measures. BOEM is conducting similar ESA
consultations for the Pacific and Gulf of Mexico regions.
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\32\ See https://www.boem.gov/sites/default/files/documents/renewable-energy/OSW-surveys-NLAA-programmatic.pdf.
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(b) Off-Lease Meteorological Buoys
The proposed rule would clarify that off-lease site assessment
facilities do not require a limited lease. BOEM proposes to accomplish
this by amending Sec. 585.104 to add a statement that, for purposes of
that section, site assessment activities neither produce, transport,
nor support the generation of any energy products.
In so doing, BOEM would cease its existing policy of making case-
by-case determinations about whether off-lease site assessment
activities require a lease.\33\ BOEM does not believe off-lease site
assessment activities support the production of energy within the
meaning of 43 U.S.C. 1337(p)(1)(C) because the nexus between such
activities and the commercial production of energy is too speculative
(e.g., the entity conducting site assessment may determine the energy
potential is insufficient for commercial operations, may not seek a
commercial lease for other reasons, or may not be the winning bidder in
a lease auction).\34\
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\33\ See supra note 18.
\34\ In contrast, site assessment activities conducted on a
commercial lease are not subject to the same jurisdictional analysis
despite the proposed change to Sec. 585.104. BOEM may determine by
regulation which on-lease activities do and do not require a
separate BOEM approval. In the proposed rule, BOEM would determine
that site assessment activities under a commercial lease involving
an engineered foundation require a SAP given the likely
environmental impacts.
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[[Page 5979]]
BOEM believes this change will substantially decrease the time and
expense required to obtain authorization to deploy a site assessment
facility on the OCS that is not tethered to a commercial renewable
energy lease. As a result, BOEM anticipates that more developers,
research institutions, and governmental entities may be interested in
collecting renewable energy resource data on the OCS--likely through
deployment of met buoys. Such increased data collection could, in turn,
aid in determining which areas are most suitable for future OCS
renewable energy leasing.
This clarification of BOEM's authority over off-lease site
assessment activities applies to both met buoys and met towers.
Although met towers have greater environmental impacts than met buoys,
BOEM does not believe this proposed regulatory change would increase
environmental risk. First, USACE would continue to permit facilities
associated with off-lease site assessment. USACE has already permitted
an off-lease met tower in connection with the Cape Wind project in
Nantucket Sound offshore Massachusetts. Second, BOEM believes it is
highly unlikely that anyone would undertake the considerable expense of
constructing a met tower absent the exclusive development rights
afforded by a commercial lease, particularly because met buoys have
become commonplace as the more cost-effective site assessment
alternative. Finally, this regulatory change would not have an
environmental impact because it would not substantially alter BOEM's
existing practice. BOEM presently has the authority not to require
limited leases for off-lease site assessment activities based on a
case-by-case determination that such activities do not support the
production of energy.
B. Project Design Envelope
The proposed rule would codify the use of project design envelopes
(PDE)--i.e., proposing a range of design parameters and construction
and operation activities--in COP submissions. The use of PDEs was first
introduced by BOEM in draft guidance in 2016 and is now being codified
in the regulations.
The proposed rule would add language throughout the proposed
subpart G that would clarify the ability of lessees and grant holders
to submit plans using a PDE. The PDE is a proven approach to provide
lessees and grant holders with flexibility throughout the permitting
process while still complying with NEPA and other statutory and
regulatory obligations. As detailed in BOEM's draft guidance,\35\ the
PDE is ``a permitting approach that allows a project proponent the
option to submit a reasonable range of design parameters within its
permit application, allows a permitting agency to then analyze the
maximum impacts that could occur from the range of design parameters,
and may result in the approval of a project that is constructed within
that range.'' \36\ BOEM recognizes that a PDE should not be overly
broad to avoid not defining the project well enough for meaningful
analysis. BOEM's NEPA analysis will continue to include reasonable
alternatives that meet the purpose and need of the project. As a
result, the NEPA analysis would be sufficient to avoid a delay in
review by BOEM or other agencies.
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\35\ See ``Draft Guidance Regarding The Use Of A Project Design
Envelope In A Construction And Operations Plan,'' (January 12,
2018), U.S. Department of the Interior, Bureau of Ocean Energy
Management, Office of Renewable Energy Programs, available at
https://www.boem.gov/guidance.
\36\ Id. at 1.
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Here is an illustrative example:
Lessee X has determined that jacket and monopile
foundations are both technically feasible options for its project. Its
ultimate foundation choice could depend on several factors that are not
typically known at the time of COP submittal, such as the cost of steel
at the time of procurement, contract negotiations with foundation
fabricators, and the availability of novel pile-driving technologies.
Lessee X proposes in its COP that it will use a foundation
PDE consisting of three scenarios: all jacket foundations, all monopile
foundations, and half each.
In its environmental analysis, BOEM will assume the
maximum design scenario (i.e., the scenario with the greatest impacts)
for each affected resource. For benthic habitat, BOEM could analyze 100
percent use of jacket foundations because that scenario disturbs the
most seabed.
BOEM may ultimately approve the full PDE for foundations,
meaning Lessee X would have the flexibility to construct its project
using either or both foundations. Alternatively, BOEM could find that
the environmental impacts of one foundation type are unacceptable and
approve the use of only the other foundation type, meaning Lessee X
could only construct its project using the approved foundation type.
In its draft PDE guidance, BOEM set out ``its support of, and
preliminary recommendations for the voluntary use of the PDE in the
submission and review of COPs for offshore wind energy facilities.''
\37\ In preparing to issue its draft guidance, BOEM contracted a
yearlong study of PDE use in the United Kingdom and its potential use
in the United States.\38\
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\37\ Id.
\38\ Office of Renewable Energy, Bureau of Ocean Energy Mgmt.,
Phased Approaches to Offshore Wind Developments and Use of Project
Design Envelope, Final Technical Report (2017), https://www.boem.gov/Phased-Approaches-to-Offshore-Wind-Developments-and-Use-of-Project-Design-Envelope/.
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BOEM has concluded that use of the PDE would be beneficial to OCS
renewable energy development because that approach provides reasonable
latitude to make site-specific design and engineering decisions after
plan approval without having to reopen the permitting review process.
Though BOEM's existing regulations allow a PDE, BOEM believes that
it can clarify the process for lessees and other stakeholders by
explicitly integrating PDE principles into its regulatory text--
primarily by referencing ``ranges'' of design parameters or locations.
It should be noted, however, that the range of parameters in a PDE
could involve non-design attributes, such as installation methods or
mitigation measures. BOEM believes these proposed changes (and other
related modifications described in the part VI section-by-section
analysis of the proposed rule) would not substantively alter its
existing regulatory framework, or its required consultations with other
agencies, but would be helpful to lessees and the general public.
C. Geophysical and Geotechnical Surveys
1. Existing Regulations
BOEM regulations require a lessee's COP to include, among other
things, survey data characterizing the seabed and sub-seabed that would
be disturbed by the proposed project. BOEM uses this information to
inform its environmental analysis of the project, its related
consultations (particularly involving historical resources and
essential fish habitat), and its review of the project's technical
feasibility. These data are derived from surveys that are typically
divided into two categories: geophysical surveys that use acoustic and
magnetic sensing techniques to map and model the composition of the
seafloor where ground-disturbing activities will take place, and to
identify natural and manmade hazards as well as potential
archaeological resources; and geotechnical surveys that use boreholes,
vibracores, grab samplers, and other
[[Page 5980]]
penetrative methods to determine the actual geological composition of
the subsurface and, in certain cases, identify potential archaeological
resources.
BOEM's regulations require a commercial lessee to submit a COP with
geotechnical survey data that include the results of a testing program
used to investigate the stratigraphic and engineering properties of the
sediment that may affect foundations or anchoring systems; in situ
testing, boring, and sampling at each foundation location; and at least
one deep boring (with soil sampling and testing) at each edge of the
project area and within the project area as needed to determine the
vertical and lateral variation in seabed conditions.\39\ Thus, lessees
are currently obligated to conduct their full suite of geotechnical
surveys before COP submittal.
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\39\ 30 CFR 585.626(a)(4).
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The FDR, which is submitted following COP approval, requires the
submittal of a ``summary of environmental data used for design'' as
well as a ``summary of the engineering design data,'' \40\ both of
which could include additional geotechnical surveys. Lessees must apply
for a regulatory departure under Sec. 585.103 if they wish to defer in
situ testing, boring, and sampling at each foundation location until
the FDR stage.
---------------------------------------------------------------------------
\40\ 30 CFR 585.701(a)(5)-(6).
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A lessee's COP also is required to include ``[t]he results of the
archaeological resource survey with supporting data.'' \41\ BOEM,
therefore, requires the results of all archaeological surveys to be
submitted with the COP.
---------------------------------------------------------------------------
\41\ 30 CFR 585.626(a)(5).
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2. Why the Existing Regulations Should Be Updated
BOEM has learned that its existing COP data submittal regulations
lack sufficient flexibility to accommodate both the lessees' needs and
BOEM's statutory and regulatory mandate. The amount and type of data
that BOEM needs from lessees in order to conduct its environmental and
technical reviews and reach a decision on a COP may vary depending on
the size and design of the project as well as site conditions in the
proposed project area. Lessees may use various techniques to gather
this data, depending on the intended use of the data. The surveys are
costly (generally in the tens of millions of dollars, depending on the
size of the area and the desired resolution); time-consuming
(individual surveys can each take several months to complete); and
challenging to schedule due to limitations on the availability of
survey vessels and equipment, weather, and seasonal restrictions.
(a) Existing Survey Requirements
The current regulations at 30 CFR 585.626(a)(1)-(3), (5), and (6)
require robust information on shallow hazard, geological survey
results, biological survey results, archeological resources, and an
overall site investigation before COP submission. The current
regulations also require geotechnical surveys and borings of all
locations where foundations are expected to be installed in order to
inform the engineering properties of the sediment. Frequently, the
exact locations of foundations change between the time of COP
submission and installation, requiring the lessee to repeat the same
survey and boring work at new locations.
The geophysical and geotechnical survey requirements in BOEM's
renewable regulations are largely built upon the framework for offshore
oil and gas energy facilities, which have a smaller footprint and
different geologic data needs than OCS renewable energy projects. The
detailed engineering survey data that BOEM's offshore renewable
regulations require early in the authorization process do not align
with existing renewable industry practices. Requiring geotechnical
sampling at each turbine location and engineering-specific geophysical
survey data--several years before the turbines are procured and before
the final layout is known--is unnecessary for BOEM's review of the COP.
Equally important, this data requirement for COP submissions creates
major logistical difficulties for lessees, hinders their ability to
modify the project design during and after COP review, and is the
subject of frequent industry criticism and regulatory departure
requests under Sec. 585.103. This information can instead be reviewed
with the FDR once siting has been finalized.
Offshore wind projects are complex and have a development timeline
that may last as much as 7 years from lease issuance to commencement of
construction. During that time, technologies likely will evolve. The
collection of geotechnical and, to a lesser extent, geophysical data is
more logically performed in stages as the process evolves from planning
and permitting to preliminary and final designs, with the appropriate
level of survey data provided at each stage. This staged data
collection and design process allows lessees to take advantage of the
newest technologies and to make project modifications responsive to
BOEM and stakeholder concerns, rather than locking the project into a
detailed design years in advance of completion.
The current lack of flexibility is also at odds with the
development and use of PDE discussed above in section V.B, entitled
``Project Design Envelope.'' The PDE's benefits cannot be fully
realized without additional flexibility regarding the timing of
engineering survey data submittal. If a lessee is required to conduct
all of its engineering surveys (and potentially its most detailed
archaeological surveys) before COP submittal, it may be constrained
from adjusting the project design based on the availability of new
technologies, stakeholder input, or other emergent factors. Likewise, a
lack of flexibility in data submittal requirements could indirectly
constrain BOEM's ability to consider NEPA alternatives that might
modify the proposed project design. Such design changes might result in
additional survey costs and project delays that may, in turn,
jeopardize electricity offtake agreements or otherwise render the
project nonviable. Revising the geophysical and geotechnical survey
timing and data submittal requirements would codify and increase the
utility of the PDE.
(b) European and Industry Practices
Based on BOEM's conversations with various European regulators of
offshore wind energy projects, many European governments that have
authorized offshore wind development allow for the final engineering-
related surveys to occur after project approval given the widespread
use of design envelopes, which are discussed in section V.B. Performing
geotechnical investigations in phases is a common approach for offshore
wind projects in Europe and for most large and complex land-based
developments. Experienced offshore wind developers and consultants are
accustomed to this approach and have informed BOEM of its
advantages.\42\
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\42\ See, e.g., Soc'y for Underwater Tech., Guidance Notes for
the Planning and Execution of Geophysical and Geotechnical Ground
Investigations for Offshore Renewable Energy Developments 12 (Mick
Cook ed., 2014), https://www.sut.org/wp-content/uploads/2014/07/OSIG-Guidance-Notes-2014_web.pdf.
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Moreover, this staged method of data submittal has been recommended
by experienced geotechnical consultants in various publications and in
geotechnical guidelines published by offshore wind classification
societies.
Based on BOEM's experience and stakeholder feedback, the Department
has concluded that allowing the submittal of certain geophysical and
geotechnical data and analysis in stages would not adversely affect our
ability to
[[Page 5981]]
execute the statutory mandate to provide for environmental protection
and safety on the OCS. We have learned that the precise location of
each wind turbine may be uncertain at the COP submittal stage and that
the geotechnical survey data, in particular, collected primarily for
engineering purposes, are more relevant to the facility design and
review process, which follows COP approval.
The Department and BOEM acknowledge that the level of data required
for fulfilling its statutory mandate may be different than the level of
data required to satisfy the mandates of other agencies. Under the
proposed rule, the COP must still contain information sufficient to
define the baseline geological conditions of the seabed, develop a
geologic model,\43\ assess geologic hazards, and determine the
feasibility of the proposed site for the proposed facility. At the COP
review stage, lessees would still be required to provide the data
necessary to conduct the required consultations.
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\43\ The geologic model brings together bathymetric data,
surficial data imagery, sub-bottom data imagery, and sediment
samples.
---------------------------------------------------------------------------
The non-geotechnical survey data included in the COP submittal are
more than adequate to assess impacts to the human, marine, and coastal
environment, to conduct necessary statutory consultations, and to show
technical feasibility of all proposed foundation types. BOEM's oil and
gas program takes a similar approach. Non-geotechnical survey data are
used to assess plans, and geotechnical surveys occur after plan
approval. Over the last 10 years, over 2,600 oil and gas plans have
been approved; in none of these cases have subsequent geotechnical
surveys identified any potential impact that required supplementation
of an EIS or reinitiation of consultation. Because of this, we are
confident that the proposed change is unlikely to undermine the
environmental review done as part of the COP approval process. Even if
a geotechnical survey after COP approval caused a change in the
approved action or environmental assessment, we would expeditiously
analyze the requisite changes and update the environmental assessment
and record of decision.
The information from the deferred geotechnical surveys is not
necessary to perform the requisite environmental reviews and
consultations for COP approval or CZMA consistency reviews. Instead,
the detailed information is necessary for engineering specifications
associated with the design of the project. Furthermore, to ensure BOEM
has sufficient information for its requisite technical reviews,
environmental analysis, and interagency consultations, BOEM conducts a
sufficiency review after receipt of a COP and notifies the lessee of
any information shortfalls that must be filled before the COP review is
complete.
3. Proposed Changes
(a) COP Data Requirements
The proposed rule would address the concerns with the existing
regulations primarily by providing more flexibility (and clarifying
existing flexibility) in the COP requirements.\44\ For clarity, the
proposed rule would reorganize the data requirements by topic. The
first proposed topic, ``geological and geotechnical,'' would encompass
the types of surveys required in existing Sec. 585.626(a)(1), (2),
(4), and (6). The survey and data collection requirements would shift
from the largely prescriptive standards in the existing regulation to
performance-based standards. These performance-based standards would
give lessees the leeway to demonstrate that their selected combination
of geotechnical and geophysical surveys provide BOEM the data that it
needs at the COP review stage to determine whether the project as
designed can be constructed safely in the proposed range of locations--
assuming industry standard engineering practices are used at subsequent
phases. Lessees could strike their own balance between geotechnical and
geophysical surveys at the COP stage, so long as BOEM deems that data
sufficient for BOEM's review as well as the required consultations or
authorizations of other agencies. BOEM would still ensure that the COP
contains information sufficient to complete its environmental review
and required consultations, through a COP sufficiency determination.
BOEM has issued guidelines elaborating its recommended best practices
for such surveys.\45\ These guidelines will be revised as needed based
on the regulatory text of the final rule. BOEM could recommend, as a
best practice, that developers coordinate early with relevant agencies
on applicable site characterization plans, before surveys occur.
---------------------------------------------------------------------------
\44\ See 30 CFR 585.626(a).
\45\ See Office of Renewable Energy, Bureau of Ocean Energy
Mgmt., Guidelines for Providing Geophysical, Geotechnical, and
Geohazard Information Pursuant to 30 CFR part 585 (2020), available
at https://www.boem.gov/guidance. See also Bureau of Ocean Energy
Mgmt., Data Gathering Process: Geotechnical Departures for Offshore
Wind Energy (2018), https://www.boem.gov/Data-Gathering-Process/.
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The proposed rule would no longer require that COPs contain the
results of in situ boring and sampling at each foundation location.
Instead, the proposed rule would allow submission of geotechnical data
for an engineering assessment of the proposed turbine foundations with
a lessee's FDR.
The proposed rule also would grant the Department the flexibility
to allow a lessee to submit certain subsea archaeological surveys with
the FDR on a case-by-case basis, subject to terms and conditions of COP
approval. We recognize that deferring subsea archaeological data
submission until after COP submittal could introduce some degree of
uncertainty and risk into a project by extending the timeline for
BOEM's review and consultations under section 106 of the NHPA and its
implementing regulations. This could delay a lessee's clearance to
commence construction. This risk may be reduced, however, through the
development of programmatic agreements or memoranda of agreement among
the section 106 consulting parties that could establish procedures for
avoiding or mitigating impacts discovered after COP approval.
BOEM estimates that a geotechnical investigation costs on average
$200,000 per turbine location and assumes that deferring survey work by
2 years would result in time value of money savings to a lessee. BOEM
also estimates a 10 percent reduction in the number of geotechnical
investigations by adding flexibility to the existing requirement of a
core analysis at each individual turbine location.\46\
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\46\ See infra Part VII.B.2 for overview of this proposed rule's
economic analysis.
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It is important to consider what these proposed rule changes would
not do. First, the proposed rule would not prevent BOEM from obtaining
COP data sufficient for an adequate impact analysis of a proposed
project under the OCS Lands Act, NEPA, and other statutory authorities.
The COP sufficiency review will ensure the necessary data is submitted
to complete BOEM's and other agencies' analyses. The COP must still
have the information sufficient to define the baseline geological
conditions of the seabed and provide sufficient data to develop a
geologic model, assess geologic hazards, and determine the feasibility
of the proposed site. Changing when lessees must submit data from each
foundation-specific boring does not impact the sufficiency review that
BOEM uses to ensure that a COP has sufficient detail to support all
consultations that accompany BOEM's environmental
[[Page 5982]]
review under NEPA. The vast majority of the data that would be deferred
to the FDR and FIR stage is used solely for engineering purposes. Any
deferred data would be subject to terms and conditions of COP approval
that would allow the Department to halt or require modifications to
further activities if the data is inconsistent with the analysis upon
which BOEM based its COP approval. If the COP needs to be modified as a
result of information gathered from the deferred surveys, such as if
the deferred survey data reveals likely effects that were not
considered previously, the Department would require the lessee to
revise the COP under the regulations at Sec. 585.634. The Department
also retains the authority to halt or require modifications to the
deferred surveys themselves, if necessary, through the lease suspension
authority at Sec. 585.417(a)(2). The Department believes the
flexibility attained by these proposed changes would enhance the
Department's (and lessees') ability to respond to environmental and
ocean user concerns raised during its environmental reviews by
modifying the project design.
Second, the proposed rule would not prevent the Department from
obtaining engineering-related survey data sufficient to analyze the
safety and feasibility of the final design before the lessee installs
facilities, as provided in Sec. 585.701. Such data would instead be
reviewed at the FDR and FIR stage rather than the COP stage. Put
differently, the Department would be able to obtain the same data under
the proposed rule as it obtains now before the commencement of
construction. Therefore, the Department anticipates that this element
of the proposed rule would have no environmental and safety impacts,
and no socioeconomic impacts beyond the potential cost savings to
lessees.
(b) Limited Leases and Grants
Extending the reasoning articulated above in sections V.B, entitled
``Project Design Envelope,'' and V.C.3(a), entitled ``COP Data
Requirements,'' the proposed rule would make similar changes to the GAP
requirements for limited leases and grants.
4. Solicitation of Comments Concerning a Potential New Permit
Requirement for Conducting Geological and Geophysical Surveys for
Renewable Energy Activities
Section 11 of OCSLA (43 U.S.C. 1340) addresses exploration for
minerals (which include oil and gas) and subsection (g) requires that
any exploration permit ``will not be unduly harmful to aquatic life in
the area, result in pollution, create hazardous or unsafe conditions,
unreasonably interfere with other uses of the area, or disturb any
site, structure, or object of historical or archeological
significance.'' However, geological and geophysical exploration permits
for minerals, including oil and gas, are required only for off-lease
surveys, i.e., on unleased lands or on lands under lease to a third
party.\47\ On-lease surveys are governed by separate regulations and
require only that the lessee notify BOEM at least 30 days prior to
conducting such activities.\48\ BOEM reviews such notices to ensure the
activities described do not cause undue or serious harm or damage to
the human, marine, or coastal environment.
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\47\ See 30 CFR 551.4
\48\ See 30 CFR 550.207 through 550.210.
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BOEM's existing renewable energy regulations do not expressly
govern survey activities. However, subsection 8(p) of OCSLA, which
authorizes BOEM to ``issue any necessary regulations to carry out this
subsection,'' also requires that activities authorized under this
subsection be carried out in a manner that provides for ``safety . . .
protection of the environment . . . [and] consideration of . . . any
other use of the area, including use for a fishery . . . .'' OCSLA
8(p)(4).
Although BOEM requires a lessee to submit the results of certain
surveys to BOEM in order to obtain approval of its COP, those
regulations do not require BOEM's approval of a permit for such
surveys. Instead, BOEM has provided guidance on conducting such surveys
\49\ and also includes terms and conditions in renewable energy leases
that require lessees to submit survey plans to BOEM for review in
advance of their survey activities.\50\ BOEM's review of the plans,
while not an approval process, does provide BOEM an opportunity to
communicate with lessees to ensure the lessees' survey results will
meet BOEM's information needs and to ensure certain environmental
conditions are met in conducting the surveys.
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\49\ Guidelines for Providing Information on Fisheries Social
and Economic Conditions for Renewable Energy Development on the
Atlantic Outer Continental Shelf Pursuant to 30 CFR part 585 (2020)
available at https://www.boem.gov/sites/default/files/documents/about-boem/Social%20%26amp%3B%20Econ%20Fishing%20Guidelines.pdf.
\50\ Refer to stipulation 3.1.2.1 in Addendum C of commercial
leases auctioned by BOEM in recent lease sales (e.g., available at
https://www.boem.gov/sites/default/files/documents/renewable-energy/state-activities/Lease%20OCS-A%200537_0.pdf.
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BOEM is considering whether there is a need for a future rulemaking
intended to regulate surveys associated with OCS renewable energy
activities. To that effect, BOEM is soliciting comments on the
following questions:
What additional protections might be gained through
rulemaking that cannot be achieved by way of the lease stipulations?
Should BOEM establish a permit-based mechanism to regulate
how, when (pre-lease, post-lease), and where (on- and off-lease)
surveys are conducted? And to what extent, if any, should that permit
program differ from the permit requirements of the oil and gas program
and marine minerals program?
Is there another method, other than a permit-based
mechanism, that could aid in the confirmation of any damage to fishing
gear as well as the identification of responsible parties for any such
damage from survey activities?
To what extent should BOEM require additional public
reporting and notice of any anticipated OCS survey activities, beyond
the current lease stipulation requirements of two weeks' advance notice
to applicable ocean users of lessee geological and geophysical surveys?
Is there a greater need for specific advance notice requirements,
extending beyond geological and geophysical surveys, to include the
location, dates, and times in which other OCS surveys will be
conducted?
To what extent should BOEM identify and track OCS survey
activities related to renewable energy program activities?
How can BOEM improve the current procedures for reporting
by and reimbursement of any party that is harmed as a result of the
activities of a company engaged in renewable energy survey activities?
Can these improvements replace the need to promulgate regulations
governing OCS surveys for renewable energy projects?
Should BOEM require advance coordination of survey
activities with other lessees operating on the OCS?
Are there other policies or requirements that BOEM should
consider in order to minimize the adverse interaction between other
users of the OCS and those conducting surveys that support renewable
energy activities on the OCS?
Please see the Addresses caption at the beginning of this notice to
send responses to these questions and any other comments that you have.
If you have any data or information that could be used to evaluate the
extent of this problem, or potential costs or benefits of instituting
additional procedures to address it, please provide that information as
well. Please see the For Further Information Contact caption at the
beginning of this notice if you
[[Page 5983]]
have questions or comments regarding this topic.
D. Certified Verification Agent and Engineering Reports
1. Existing Regulations
As discussed above, the current subpart G of BOEM's regulations
governs the design, fabrication, and installation of offshore wind
facilities following plan approval--as well as the process by which
independent third-party CVAs are nominated, selected, and tasked with
duties for project engineering review.
2. Why the Existing Regulations Should Be Updated
The existing regulations use terminology to describe the role of
the CVA that is not consistent with industry practices. They also are
inexplicit regarding the flexibility that lessees or grant holders are
afforded in the timing and composition of their FDRs and FIRs, and
ambiguous regarding what procurement and fabrication activities lessees
or grant holders can carry out before BOEM's review of these reports.
3. Proposed Changes
(a) Certified Verification Agent Roles and Flexibility
BOEM and the Bureau of Safety and Environmental Enforcement (BSEE),
concurrently review reports for design and construction of the
facilities. However, rather than relying solely on agency engineering
expertise, the bureaus also require lessees to use a CVA to provide
independent third-party review of a project's FDR and FIR. The CVA
plays an integral role in BOEM's determination that a proposed OCS
renewable energy facility will be designed and constructed safely using
best engineering practices in accordance with Sec. 585.700(a)(1). The
CVA also is expected to monitor fabrication and installation activities
and to submit a final report to BOEM before the start of commercial
operations or other approved activities in accordance with Sec.
585.700(a)(2). So that the Department is able to ``ensure that any
activities . . . are carried out in a manner that provides for safety''
as required by Sec. 585.102(a), the Department proposes to add a
requirement that the CVA verify the facility's design, taking human
safety into appropriate consideration. In addition, the CVA would be
required to evaluate the commissioning of any critical safety systems.
Critical safety systems would be defined as safety systems and
equipment designed to prevent or ameliorate major accidents that could
result in harm to health, safety, or the environment associated with
facilities.
The Department proposes to change all ``certification'' references
in the proposed subpart H to ``verification.'' This modification would
align the regulations with industry standards.\51\
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\51\ Panel on Certification of Offshore Structures, National
Research Council, Verification of Fixed Offshore Oil and Gas
Platforms 8-9 (1977), https://www.nap.edu/read/18431/chapter/1
(opining that ``verification'' is the preferred description of the
procedure assuring stakeholders that appropriate environmental and
operating factors have been duly considered in the design,
construction, and installation of offshore oil and gas platforms);
see also Transportation Research Board, Nat'l Academies of Sciences,
Engineering, and Medicine, Structural Integrity of Offshore Wind
Turbines, Oversight of Design, Fabrication, and Installation 96-108
(2011) (discussing role of third party oversight and certified
verification agents in the offshore wind industry).
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The proposed rule also would add flexibility to the CVA nomination
process. Currently, a lessee or a grant holder must submit its CVA
nominations with its SAP, COP, or GAP.\52\ BOEM approves or disapproves
CVA nominations as part of its plan review.\53\ Multiple lessees have
expressed a desire to have approved CVAs in place before COP submittal
so the CVA may provide third-party review of design concepts in the
COPs. This reasoning also supports CVA review of SAPs and GAPs before
submittal. The Department believes that integrating CVA review into the
earliest stages of the design and permitting process is consistent with
its policy goals of encouraging safety and best engineering practices.
We also recognize that a lessee or a grant holder may need to nominate
new CVAs as the project progresses (for instance, if a design parameter
changes at a late stage) or to request the replacement of an approved
CVA if that CVA is ineffective or can no longer perform its duties. As
a result, the proposed rule would provide flexibility for the
Department, lessees, and grant holders by decoupling the CVA nomination
and approval process from plan submittal and approval. The proposed
rule also clarifies that a lessee or a grant holder may nominate
separate CVAs to review different components of a project.
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\52\ For COP requirements, see 30 CFR 585.626(b)(20), 706(a).
For SAP and GAP requirements, see 30 CFR 585.610(a)(9) and
585.645(c)(5), respectively. CVA nominations are required in a SAP
and a GAP if BOEM determines the facilities proposed in those plans
require an FDR and FIR because they are complex and significant. See
30 CFR 585.700(a), 705, 706(a).
\53\ 30 CFR 585.706(e).
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(b) Staged Submittal of the Facility Design Report and Fabrication and
Installation Report
The Department recognizes that the construction of an offshore
renewable energy facility is complex and that the procurement and
installation of components depends on a wide range of project-specific
factors that may change over time. These factors include availability
of port facilities and installation vessels, weather conditions,
seasonal construction restrictions, project financing, and approval of
permits and authorizations. Requiring a lessee or a grant holder to
submit only one FDR and FIR ignores that time-dependent complexity and
could lead to unnecessary inefficiencies and delays. Indeed, lessees
have already requested permission to submit separate, staged reports
for discrete major project components. If the Department approves such
requests, those lessees could begin fabricating and installing certain
components while other components are being verified by a CVA. We
acknowledge that some major project components may require analysis
upfront to ensure safety and adherence to best engineering practices
but believes that more flexibility is warranted in the timing of
component review.
The Department believes that allowing staged submittal of FDRs and
FIRs addresses this complexity and provides appropriate flexibility
without compromising its project review. Though BOEM's existing
regulations permit staged FDR and FIR submittal, this proposed rule
would clarify that authority and would better define the circumstances
under which staged submittal would be allowed. Importantly, staged
submittals would be allowed only if the lessee or grant holder could
explain how the constituent major components would function together in
an integrated manner and could demonstrate that a CVA has verified such
integration. The Department believes these two qualifications would
minimize the risk that a lessee or grant holder would have to modify
completed fabrications or installations based on any subsequent
Department or CVA objections to later-reviewed components of the
project.
(c) Definition of ``Fabrication,'' and Early Fabrication of Facility
Components
Because of the long lead times for the procurement or fabrication
of some components for offshore wind energy facilities, numerous
lessees have expressed interest in the procurement or
[[Page 5984]]
fabrication of facility components before submittal of their COPs,
FDRs, and FIRs. This ``early fabrication of facility components'' would
take place outside of the OCS (e.g., onshore manufacturing).
The existing regulations provide that a lessee or a grant holder
may begin to fabricate and install approved facilities only after BOEM
notifies the lessee or grant holder that it has received the FDR and
FIR and has no objections.\54\ BOEM has previously read this provision
conservatively and required lessees to obtain departures before they
``begin'' any fabrication prior to BOEM's notification that it has no
objection to their FDR and FIR, even if the fabrication, i.e.,
manufacture, does not occur on the OCS. Lessees have asked BOEM to
clarify what constitutes ``fabrication'' because they want to
accelerate timelines by proceeding with procurement or fabrication
activities outside of the OCS prior to receiving BOEM's non-objection
to the FDR and FIR or the end of BOEM's 60-day review of the FDR and
FIR without objections.
---------------------------------------------------------------------------
\54\ 30 CFR 585.700(b). BOEM is also ``deemed'' to have no
objections if BOEM does not object within 60 days of receiving the
reports.
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The Department has determined that the term ``fabrication,'' as
used in the current subpart G, is arguably ambiguous and, therefore,
further clarifying this term would be useful for the regulated
community. BOEM has granted departures from the requirements of Sec.
585.700(b) on a case-by-case basis,\55\ provided that the departure
request meets the requirements in BOEM's regulations and the lessee or
grant holder assumes all business risk associated with fabrication
activities that occur as a result of the departure. Whenever granting a
departure for early fabrication, BOEM reserved the right to object to
the fabrication methodologies described in the submitted FDR and FIR
before the lessee began installation of facility components on the OCS.
The Department has now concluded that the regulation in question
prohibits only the fabrication and installation of facility components
that take place on the OCS (e.g., assembly, construction, or
installation). Therefore, the fabrication of facility components that
does not take place on the OCS may be carried out prior to the
submittal of an FDR, FIR, or any plans under the regulations, and such
activities do not require the prior issuance of a departure. However,
the fact that fabrication activities outside the OCS can commence prior
to the submittal of an FDR, FIR, or any plans does not prevent the
Department from objecting to the installation of such components on the
OCS if their fabrication is inconsistent with accepted industry or
engineering standards, the approved SAP, COP, or GAP, or the FDR or
FIR, or regulations. To codify this policy, the Department proposes to
amend the existing regulations to remove any doubt that only
fabrication activities that take place on the OCS are prohibited prior
to the Department non-objection of the FDR and FIR or the end of the
60-day review period without objections.
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\55\ See BOEM's record of departure requests at https://www.boem.gov/departure-request.
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The Department also proposes to include in 585.112 a definition for
the term ``fabrication,'' which would be defined as ``cutting, fitting,
welding or other assembly of project elements of a custom design
conforming to project-specific requirements,'' and would exclude from
this definition the procurement of discrete parts of the project that
are commercially available in standardized form (such as electrical
components, magnets, and gears) and type-certified components (such as
nacelles and blades).\56\
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\56\ Component type-certification (for type-certified
components) provides independent proof that critical main components
of a wind turbine meet relevant international standards and codes
for performance and safety. Component type-certification differs
from project certification, which assesses the performance of a
group of wind turbines on a specific project site.
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Consequently, the proposed rule would reduce the number of
components that are considered ``fabricated'' through the definition.
The proposed rule would clarify that fabrication activities that do not
take place on the OCS can commence before the submittal of the FDR,
FIR, or any plans required under regulations. This proposed change
would not in any way limit BOEM's ability to conduct a robust
environmental review during the plan approval process; BOEM's
consideration of alternatives and mitigations would be unaffected. The
rule would also clarify that all facility components procured or
fabricated (regardless of where they were fabricated) would be subject
to CVA verification. This requirement would reduce the risk of a lessee
or grant holder seeking short-term cost savings to the detriment of
safety and accepted engineering practices. The lessee or grant holder
assumes any business risk associated with the procurement or
fabrication of facility components prior to plan approval or the
Department non-objection to the FDR and FIR or the end of the 60-day
review period without objections. In order to avoid the business risk
of objections to the fabrication of facility components prior to
installation, developers can always opt not to fabricate until their
FDR and FIR have gone through the 60-day review period without
objections or received a non-objection to the FDR and FIR. Although
such procurement and fabrication activities are not prohibited by the
regulations, the proposed rule would clarify that the Department
reserves the right, during its FDR and FIR reviews, to object to the
installation of previously procured or fabricated facility components
if said components are inconsistent, or were not fabricated in
accordance with, accepted industry or engineering standards, the
approved SAP, COP, or GAP, or the FDR or FIR, or BOEM's regulations.
Clarifying that the regulations do not prohibit all procurement or
fabrication activities prior to the submittal of the FDR and FIR
provides maximum flexibility to the industry, while still allowing the
goals of the regulation to be met (i.e., to prevent the installation of
facility components on the OCS if the Department has objections to
their fabrication or the installation methodologies proposed in the
FIR).
E. The Renewable Energy Leasing Schedule
1. Existing Regulations
The existing regulations do not address the preparation of a
renewable energy leasing schedule. Under the existing regulations, BOEM
announces lease sales individually as each is scheduled.
2. Why the Existing Regulations Should Be Updated
BOEM proposes to add a new section to the regulations, entitled
`The Renewable Energy Leasing Schedule' to indicate BOEM's intent to
publish a proposed five-year leasing schedule for the OCS renewable
energy program. This would provide greater transparency to the leasing
process by giving stakeholders as much advance notice as possible of
proposed lease sales.
The Secretary provided a preview of such a schedule on October 13,
2021, by announcing plans for BOEM to potentially hold up to 7 new
offshore lease sales by 2025 in the Gulf of Maine, New York Bight,
Central Atlantic, and Gulf of Mexico, as well as offshore the
Carolinas, California, and Oregon. The proposed regulation would
require a proposed leasing schedule and periodic updates to the
schedule. Through a proposed schedule, BOEM would provide increased
certainty and
[[Page 5985]]
enhanced transparency, and facilitate planning by industry, the States,
and other stakeholders. With this change, DOI can lay out an ambitious
roadmap to confront climate change, create good-paying jobs, and
accelerate the nation's transition to a cleaner energy future.
3. Proposed Changes
The proposed rule would include a new section describing the
renewable energy leasing schedule. This proposed schedule would include
a list of locations under consideration for leasing and a leasing
schedule that BOEM intends to follow in announcing its future renewable
energy lease sales. According to this proposal, at least once every two
years, the Secretary would publish a schedule of proposed lease sales.
As a proposed schedule, it would not obligate BOEM to offer all sales
on the schedule; BOEM would adjust the schedule as necessary through
the scheduled updates. The first published schedule would be issued for
the five-year period following the effective date of this rulemaking,
and subsequent schedules will cover the five-year period after each
update. This schedule would include a general description of the area
of each proposed lease sale, the calendar year in which each lease sale
is projected to occur, and the reasons for any changes made to the
previous schedule. Every time the schedule is updated, BOEM would
identify those lease sales that are being considered for the following
5-year period.
The Inflation Reduction Act (IRA), Public Law 117-169, requires
that, during the 10-year period beginning on August 16, 2022, BOEM may
not issue an OCS wind lease unless an OCS oil and gas lease sale has
been held during the 1-year period ending on the date of the issuance
of the wind lease and the sum total of acres offered for lease in OCS
oil and gas lease sales during that 1-year period is at least 60
million acres. BOEM will comply with the requirements of the IRA.
This Renewable Energy Leasing Schedule would differ substantially
from the Five Year Oil and Gas Leasing Program, described in the oil
and gas regulations in 30 CFR part 556. Compared to the Five Year Oil
and Gas Leasing Program, which is mandated under section 18(a) of the
OCS Lands Act, the proposed Renewable Energy Leasing Schedule would be
much less complicated and would not constitute a final action
enforceable or challengeable administratively or in the courts. The
proposed regulations would not have requirements for public meetings,
comment periods, or iterative proposals, and would not include a list
of factors that must be considered other than those already enumerated
in Sec. 585.102. Any proposed lease sale covered by the schedule would
be subject to all applicable regulations, including area
identification, coordination with relevant parties, and applicable
environmental reviews.
BOEM seeks comment on its proposal to publish a proposed Renewable
Energy Leasing Schedule and what information should be provided as part
of this schedule. BOEM is soliciting comments specifically on the
content and the timing of the schedule updates, as well as generally on
how best to provide a schedule to improve transparency of renewable
energy development on the OCS.
F. Lease Issuance Procedures
1. Existing Regulations
During the past 10 years, the existing lease issuance procedures
have been criticized for being too prescriptive in some aspects and
unclear in others. The existing procedures constrain flexibility by
prescribing auction formats, processes, systems, and variables. BOEM
has determined that the lease issuance process requires added
flexibility, transparency, and clarity and that its regulations should
address possible consequences when the provisional winner fails to
execute a lease, a lessee relinquishes a lease, or BOEM contracts or
cancels a lease.
2. Why the Existing Regulations Should Be Updated
BOEM proposes to revise several aspects of its lease issuance
procedures primarily for simplification, clarification, and conformance
with existing agency practice.
3. Proposed Changes
(a) Pre- and Post-Auction Procedures
This proposed rule would reorganize, simplify, and clarify the
sections of BOEM's regulations that detail the steps leading to an OCS
renewable energy auction. The proposed rule would introduce a new term,
``provisional winner,'' to describe the bidder that BOEM determines has
submitted the winning bid at the close of the auction, pending
completion of the government's post-auction reviews and the lease award
reconsideration process. The provisional winner becomes the winning
bidder upon favorable completion of these reviews and appeals. The
proposed rule would consolidate the reconsideration and appeal
provisions into a single section while retaining separate processes for
seeking the review of a decision selecting a provisional winner and for
appealing all other final decisions under this part. The proposed rule
would simplify and clarify post-auction procedures by outlining what
BOEM and a provisional winner must do between the auction and lease
execution. The proposed rule would eliminate the term ``request for
interest'' and replace it with the broader term ``request for
information.'' Finally, the proposed rule would change the due date for
payment of the first 12 months' rent to 45-calendar days after the
winning bidder receives a copy of the executed lease.
(b) Auction Processes and Rules
BOEM recognizes that the auction formats and bidding systems
described in the existing Sec. Sec. 585.220 and 585.221 are difficult
to understand and overly prescriptive, although they allow for
customization of each auction. This proposed rule would simplify and
clarify the auction regulations, replacing the currently enumerated
auction formats, bid systems, and bid variables with a more flexible
process to better accommodate an emerging industry while allowing for
auctions to be customized based on circumstances. The proposed rule
would meet the fundamental policy objectives to have a process that is
objective, fair, reasonable, and competitive; awards leases to the
highest bidder; and provides a fair return to the U.S. taxpayer.
Consistent with BOEM's existing practice, the PSN would propose the
specific format and procedures for an upcoming auction, and the public
would have an opportunity to submit comments that would inform BOEM's
final decisions regarding format and procedures. BOEM would publish the
final auction format and procedures in the FSN. This proposed rule
would allow BOEM greater flexibility to tailor each auction to fit the
particular circumstances.
(c) Multiple Factor Auctions and Bidding Credits
BOEM proposes to continue to implement multiple factor auctions,
through the use of bidding credits, to allow the competitive lease
award process to take into consideration various priorities, such as
advancing a domestic supply chain or requiring workforce development
agreements, relating to orderly development of OCS renewable energy
resources. The multiple factor auction format ascribes a value,
expressed in monetary terms, to the factors or actions demonstrated or
committed to by a bidder at a lease auction during the competitive
lease
[[Page 5986]]
award process. In each round of the auction, a bid may have a non-
monetary component represented by the bidding credit as well as a
monetary (cash) component.
A multiple factor auction using bidding credits would be expected
to proceed along the lines of the following example. We assume there
are three qualified bidders in an ascending bid clock auction, which is
the same auction format traditionally used for BOEM's wind energy lease
sales. Bidder A has met the requirements for a bidding credit of 10
percent of the cash component by having obtained a power purchase
agreement (PPA); Bidder B has met the requirements for a bidding credit
of 20 percent of the cash component by having committed to appropriate
workforce or supply chain development agreements; and Bidder C has not
earned or made the requisite commitments to earn a credit.
The auction begins with an opening bid of $100 with subsequent $10
bidding increments per round. The auction continues for seven rounds.
Bidder C submitted an exit bid in Round 6 and is ineligible to continue
bidding. The auction concludes when Bidder B bids the asking price in
Round 7 and Bidder A submits an exit bid less than the asking price.
Bidder B wins the auction with its lower cash bid combined with its
commitment to workforce training and supply chain development. The
example bidding results are shown in the following table.
Table--Offshore Wind Auction Example
----------------------------------------------------------------------------------------------------------------
BOEM's asking
Bidding round price (combined Bidder A (10 Bidder B (20 Bidder C (no credit)
bid) percent credit) percent credit)
----------------------------------------------------------------------------------------------------------------
1............... $100 $90.90 cash + $9.10 $83.30 cash + $100.00.
credit. $16.70 credit.
2............... $110 $100 cash + $10 $91.67 cash + $110.00.
credit. $18.33 credit.
3............... $120 $109.09 cash + $100 cash + $20 $120.00.
$10.91 credit. credit.
4............... $130 $118.18 cash + $108.33 cash + $130.00.
$11.82 credit. $21.67 credit.
5............... $140 $127.27 cash + $116.67 cash + $140.00.
$12.73 credit. $23.33 credit.
6............... $150 $136.36 cash + $125 cash + $25 $145.00 (exit bid).
$13.64 credit. credit.
7............... $160 Exit bid of $140 $133.33 cash + [ineligible to bid].
cash + $14 credit $26.67 credit =
= $154.00. $160.00 (winner).
----------------------------------------------------------------------------------------------------------------
Before the auction, BOEM will determine each bidder's eligibility
for bidding credits in accordance with the specifications of the FSN;
however, such eligibility may be established either for actions that
the bidder has already undertaken or for actions which it has committed
to undertake in the future, provided that BOEM has agreed to the terms
by which such a commitment will be made. Eligibility for bidding
credits would be tied to specific actions defined in the FSN that
facilitate OCS renewable energy development by increasing the
likelihood or pace of development--for instance, a PPA--or by advancing
other public policy goals reflected in the OCS Lands Act. The FSN would
contain the rules governing the eligibility of parties to obtain
bidding credits, as well as the application process, use, and value of
bidding credits in a specific auction. As it has done in the past, BOEM
would consider the enforceability of commitments made by bidders during
the design of the auction credits to be offered in specific lease
sales. In the past, this was not much of a concern because BOEM mostly
offered credits for commitments and achievements previously made. This
proposed rule would clarify that a bidder may be eligible for bidding
credits based on actions the bidder has already undertaken or for
commitments to future actions. However, in proposed 30 CFR 585.225,
this rule would also provide that, in the event that a lessee does not
meet the commitments it made to obtain any bidding credits, the lessee
would be required to repay the value of the bidding credits that it
received, adjusted for inflation. BOEM would also reserve the right to
impose civil penalties pursuant to the provisions of subpart N of 30
CFR 550 for failure to comply with the terms or provisions of a lease,
easement, or right-of-way.
According to the provisions of this proposed rule, a multiple
factor auction may take one or more non-monetary factors into
consideration, including: (1) power purchase agreements; (2)
eligibility for, or applicability of, renewable energy credits or
subsidies; (3) development agreements by a potential lessee that
facilitate shared transmission solutions and grid interconnection; (4)
technical merit, timeliness, financing and economics, environmental
considerations, public benefits, or compatibility with State and local
needs; (5) agreements or commitments by the developer that would
facilitate OCS renewable energy development or other OCS Lands Act
goals; or (6) any other factor or criteria to further development of
offshore renewable energy in a sustainable and environmentally sound
manner, as identified by BOEM in the PSN and FSN.
(d) Solicitation of Comments
BOEM seeks comments on the use of bidding credits and multiple
factor auctions as a method of advancing important priorities, such as
promoting workforce development or supply chain enhancement, consistent
with the goals of the OCS Lands Act. It is BOEM's goal to ensure that
there is adequate flexibility to the leasing process to achieve public
policy goals and any comments or suggestions as to how BOEM could best
achieve this objective would be welcome. Specifically, BOEM is
interested in obtaining comments on how bidding credits or factors
might be tailored to mitigate possible adverse, project-related
impacts. For example, BOEM is interested in receiving comment on what
impacts a project could have on underserved communities and how bidding
credits or multiple factor auctions can be used to promote mechanisms
such as community benefit agreements that could address those impacts
and provide benefits to the underserved communities. Comments on
alternative means to achieve public policy goals, such as through lease
stipulations, are also sought.
(e) Improper or Inappropriate Bidder Communications
The proposed rule would explicitly prohibit a bidder from
disclosing its auction strategies and economic valuations of a lease
area to other bidders in a particular auction in any manner that might
prevent the United States from obtaining a fair return on a prospective
lease. Such practices have been prohibited in recent FSNs.
This proposal would outline the rules applicable to all auctions
and the
[[Page 5987]]
processes BOEM would use to disqualify a bidder that no longer meets
qualification requirements or who engages in specified improper
conduct. The proposed rule would specify how a disqualified bidder
might seek to be re-qualified as a bidder.
(f) Provisional Winner Obligations
This proposed rule would define the term ``provisional winner'' and
would outline consequences if a provisional winner fails to sign the
lease agreement, provide the requisite amount of financial assurance,
or tender the outstanding bid balance. The proposed rule would provide
a list of actions that BOEM is authorized to take if a provisional
winner fails to fulfill its obligations. In addition, because the
proposed rule would allow a provisional winner to become a lessee
before it has completed all obligations for which it obtained bidding
credits, an additional provision has been added to proposed Sec.
585.225, specifying that a lessee that has obtained bidding credits for
prospective performance obligations that were not fulfilled at the time
of the lease award, are subject to repayment in the event that those
performance obligations are not ultimately met prior to a specified
deadline or event. BOEM would also reserve the right to impose civil
penalties pursuant to the provisions of subpart N of 30 CFR 550 for
failure to comply with the terms or provisions of a lease, easement, or
right-of-way.
(g) Re-Offering Leases at Auction or When a Lease Area Is Relinquished,
Contracted or Cancelled
The proposed rule would provide clear authority for BOEM to offer a
lease to the next highest bidder if a provisional winner of a lease
auction fails to fulfill its obligations before lease execution or is
otherwise unable to execute a lease. Similarly, if a lessee
relinquishes its lease or BOEM contracts or cancels a lease in whole or
in part, BOEM may re-offer the area previously covered by the lease.
G. Risk Management and Financial Assurance
1. Existing Regulations
As discussed above, under the current subpart E of part 585, BOEM
requires lessees and grant holders to provide financial assurance, in
the form of a bond or other instrument, in an amount sufficient to
guarantee compliance with terms and conditions of their leases and
grants.
2. Why the Existing Regulations Should Be Updated
The existing financial assurance regulations lack flexibility and
clarity in several key areas, as explained below.
3. Proposed Changes
This proposed rule would revise BOEM's risk management and
financial assurance requirements in the proposed subpart F. The
revisions are intended to facilitate OCS renewable energy development
while continuing to protect the U.S. taxpayer against risks of default.
The proposed rule would accomplish both goals through four key changes.
Other minor proposed changes are addressed in section VI.F. BOEM also
seeks comment on additional potential changes that would better align
financial assurances to risk discussed in subsection 3(e) below.
(a) Elimination of COP Approval Financial Assurance Requirement
The proposed rule would eliminate the supplemental financial
assurance currently required before COP approval.\57\ This requirement
was intended to protect the U.S. taxpayer against liability from
defaulted lease obligations that accrue after COP approval.\58\
However, decommissioning liabilities do not accrue from COP approval;
such liabilities accrue only with the commencement of approved
activities on the OCS.\59\ BOEM's regulations require--and this
proposed rule would continue to require--supplemental financial
assurance before OCS installation starts in order to cover those
liabilities, i.e., anticipated decommissioning costs. Therefore, BOEM
proposes to eliminate as unnecessary the requirement for supplemental
financial assurance before COP approval. In the unforeseen event that a
COP approval does, by itself, cause the accrual of new obligations,
BOEM retains the authority to assess supplemental financial assurance
on a case-by-case basis under Sec. 585.517.\60\
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\57\ 30 CFR 585.516(a)(3).
\58\ See Renewable Energy and Alternate Uses of Existing
Facilities on the Outer Continental Shelf Final Rule, 74 FR 19637
(Apr. 29, 2009), available at https://www.boem.gov/Renewable-Energy-Program/FinalRenewableEnergyRule-pdf.aspx.
\59\ Under both the existing regulations and the proposed rule,
OCS installation of approved facilities may begin only after the
lessee addressed all CVA and BOEM concerns raised during their FDR
and FIR reviews to their satisfaction.
\60\ Where a permit under the National Marine Sanctuaries Act
may be required, NOAA's Office of National Marine Sanctuaries may
require certain financial assurances for infrastructure removal
activities potentially required under the permit.
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(b) Revision of Lease-Specific Financial Assurance Amount
The proposed rule would simplify the requirements for financial
assurance during the early stages of a commercial lease. Currently,
before BOEM will execute a commercial lease, the lessee is required to
provide lease-specific financial assurance in the amount of $100,000 to
guarantee compliance with the lease terms and conditions. BOEM
recognizes, however, that annual rental payment is the only financial
obligation accrued at lease execution and before installation
activities on the OCS are authorized. BOEM currently assesses financial
assurance for 12 months of rent when it makes its first request for
supplemental financial assurance--typically during SAP review.\61\ This
practice leaves BOEM under-bonded for the preliminary term of a lease
if annual rent exceeds $100,000, which it generally does.
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\61\ 30 CFR 585.516(a)(2).
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BOEM, therefore, proposes to replace the $100,000 lease-specific
financial assurance with financial assurance in the amount of 12
months' rent, due before lease execution. This amendment would ensure
that BOEM and U.S. taxpayers are adequately bonded throughout the early
stages of the lease. Combined with the proposed elimination of
financial assurance for met buoy decommissioning, this amendment would
simplify financial assurance by eliminating the need for supplemental
financial assurance in addition to 12 months' rent before installation
of BOEM-approved facilities on the OCS. The amendment is not expected
to have a financial impact on lessees.\62\
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\62\ As discussed in section V.A above, BOEM proposes to
eliminate SAPs for met buoys, which have become the predominate
facilities for OCS site assessment activities.
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Additionally, BOEM's regulations allow periodic adjustments to the
$100,000 lease-specific financial assurance based on the Consumer Price
Index-All Urban Consumers or equivalent index. With the proposed
replacement of the $100,000 lease-specific financial assurance, BOEM
proposes to eliminate these adjustment provisions as obsolete. BOEM
seeks comments on the extent to which additional modifications or
enhancements to the financial assurance might be appropriate.
Extending the reasoning in this section, the proposed rule also
would change the financial assurance requirement prior to issuance of
limited leases and grants from $300,000 to an amount equal to 12
months' rent.
[[Page 5988]]
(c) Additional Authorized Financial Assurance Instruments
The proposed rule would provide greater flexibility regarding the
financial assurance instruments that BOEM would accept. While BOEM's
regulations list types of acceptable financial assurance instruments,
BOEM's regulations permit it to accept other instruments that meet the
general requirements for financial assurance in 30 CFR 585.525. Several
lessees have expressed an interest in using letters of credit, which
are accepted as financial assurance across a range of industries. The
proposed rule explicitly would allow letters of credit as permissible
financial assurance instruments and would set forth evaluation criteria
for their use. The proposed rule would add catch-all provisions
clarifying that BOEM may accept instruments not explicitly listed as
well as combinations of different instruments; however, these
instruments would need to meet BOEM's general requirements for
financial assurance as noted above. These changes would provide greater
flexibility to a lessee and a grant holder, but still protect the
United States against default.
The proposed rule also would provide lessees and grant holders with
greater flexibility when using a third-party guaranty by allowing
guarantors to cap their liability. BOEM's existing regulations require
a third-party guaranty to cover the full amount of all lease and grant
obligations. The proposed rule would grant BOEM the discretion to
approve a third-party guaranty for a specific amount. This modification
would provide lessees and grant holders with the flexibility to use a
third-party guaranty up to a certain dollar amount and to satisfy the
remainder of their financial assurance obligations through other
acceptable instruments. Given that BOEM would retain the ability to
approve all proposed financial assurance instruments and that the
criteria for such instruments would remain unchanged, BOEM believes
these changes would not increase the risk to U.S. taxpayers.
(d) Staged Funding of Decommissioning Accounts
The proposed rule would allow staged funding of decommissioning
accounts during the operations period of a lease or grant to satisfy
financial assurance requirements for decommissioning. BOEM's existing
regulations require full funding of a decommissioning account for each
renewable energy facility, such as a wind turbine generator, before its
installation on the OCS. This places a significant upfront capital
burden on a lessee or a grant holder.
BOEM strives to develop a financial assurance framework for the
renewable energy sector that accomplishes the same goal of protecting
the taxpayer as does the financial assurance framework governing the
oil and gas sector. BOEM also recognizes that there are key differences
between the renewable energy and oil and gas sector that necessitate
different approaches. Notably, offshore renewable energy is projected
to maintain consistent levels of power production over the life of a
project, as opposed to production decline curves associated with oil
and gas production from offshore wells. In addition, the risk that
predicted levels of oil and gas reserves may be overstated is also not
a concern with offshore renewable energy projects. Additionally,
renewable energy projects often have legally binding PPAs, which ensure
an ongoing revenue source over a significant time horizon and eliminate
another major risk factor faced by the oil and gas sector: commodity
price volatility. This relatively consistent production, combined with
PPAs that often guarantee a market for power at predictable prices over
15 to 20 years, allows BOEM to receive revenue and make profitability
projections with a much greater degree of certainty than for
conventional energy assets.
BOEM's proposal to set a scheduled and staged implementation of a
decommissioning trust account or other financial assurance funding
mechanism is also appropriate given that the funding schedule is
established at the beginning of the operations period, significantly
before decommissioning is scheduled to occur, as opposed to after the
assets have been operating for years and may be approaching or past
scheduled end-of-life. The proposed rule would allow BOEM to approve a
schedule for funding decommissioning accounts during a lease's or
grant's operations period on a case-by-case basis.\63\ In all
instances, the decommissioning account would be required to be fully
funded by the time a lessee or grant holder is obligated to
decommission the applicable facility. This proposed change would align
BOEM's financial assurance regulations with common European practices.
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\63\ The operations period for a commercial lease is defined at
Sec. 585.235(a)(4); for a limited lease, Sec. 585.236(a)(2); and
for a grant, Sec. 585.303(b).
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BOEM believes the risk of this proposed change to U.S. taxpayers is
negligible. First, the proposed rule would not commit BOEM to allowing
staged funding of a decommissioning account in all instances. If BOEM
believes that a particular project poses a high financial risk, BOEM
could require full funding of the decommissioning account before OCS
installation. Second, the European industry has a strong history of
solvency that BOEM believes would extend to the U.S. industry because
the lessees and projects share many of the same characteristics. Third,
BOEM anticipates that even if a lessee became insolvent during its
commercial operations period, it would likely be able to transfer a
functioning OCS renewable energy facility to a solvent entity because
the revenues would be expected to exceed operating costs.
(e) Other Financial Assurance Provisions
BOEM is considering additional changes to its existing financial
assurance framework. In December 2015, the Government Accountability
Office highlighted risks in BOEM's financial assurance procedures
applicable to the offshore oil and gas industry and recommended that
BOEM complete its planned financial assurance revisions ``including the
use of alternative measures of financial strength.'' \64\ Subsequently,
BOEM is considering a new rulemaking to revise the financial assurance
regulations for its offshore oil and gas program while continuing to
protect U.S. taxpayers against defaulted obligations incurred by
lessees and grant holders.\65\
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\64\ Government Accountability Office, GAO-16-40, Offshore Oil
and Gas Resources, Action Needed to Better Protect Against Billions
of Dollars in Federal Exposure to Decommissioning Liabilities 34
(2015), https://www.gao.gov/products/GAO-16-40.
\65\ Risk Management, Financial Assurance and Loss Prevention,
85 FR 65904 (Oct. 16, 2020).
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The oil and gas rulemaking initiative could consider reliance on
credit ratings with a specific regulatory credit rating threshold for
BOEM's evaluation of the financial strength and reliability of a
lessee, grant holder, or third-party guarantor. In all cases, BOEM
could retain the discretion to require supplemental financial assurance
in situations where it is warranted.
Similarly, in its renewable energy program, BOEM is considering use
of a minimum credit threshold rating to help determine the necessity
for financial assurance. BOEM is not proposing regulatory text
implementing this concept and is not specifying a credit rating
threshold in this rulemaking. BOEM does seek comments on the merits of
this concept for potential inclusion in the final rule for the
renewable energy program. Regulatory
[[Page 5989]]
text implementing this proposal likely would result in BOEM replacing
many of the factors that currently guide BOEM's determination of a
lessee's or grant holder's financial strength in the existing Sec.
585.527, or adding provisions outlining additional methods for
determining financial strength.
(i) Credit Ratings
Currently, BOEM requires a commercial lessee to provide
supplemental financial assurance before installing facilities included
in the approved COP.\66\ Under existing regulations, BOEM may allow a
lessee or grant holder to use its financial strength and reliability to
cover its financial assurance based on an evaluation of audited
financial statements; business stability; reliability; and a record of
compliance with laws, regulations, and contracts.\67\ Based on a
similar evaluation of a guarantor, BOEM also may allow a lessee or
grant holder to use a third-party guarantee to meet its financial
assurance requirements.\68\
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\66\ 30 CFR 585.516(a)(4). BOEM may adjust the amount of the
supplemental financial assurance as cumulative obligations increase
or decrease during the lease. 30 CFR 585.517(c). On a grant or
limited lease, BOEM may require supplemental financial assurance as
activities progress and obligations accrue. 30 CFR 585.521(a).
\67\ 30 CFR 585.527(a).
\68\ 30 CFR 585.528(b).
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These factors primarily assess past performance as a proxy for
future financial strength and reliability. In dynamic electricity
markets, however, such backward-looking factors may lead to inaccurate
and inconsistent assessments of financial strength and reliability.
A forward-looking assessment would be more reliable because the
financial situation of a lessee, grant holder, or third-party guarantor
can worsen quickly despite its past performance. Credit ratings provide
such forward-looking assessments by taking into account relevant
factors, such as cash flow, debt-to-income ratios, and debt-to-funds
from operation.
BOEM seeks comment on whether it should alter its assessment of
financial strength and reliability by replacing the use of several
current factors with a credit rating from a nationally recognized
statistical rating organization (NRSRO), as identified by the U.S.
Securities and Exchange Commission under the Credit Rating Agency
Reform Act of 2006 and its implementing regulations,\69\ or a proxy
credit rating determined by BOEM using audited financial statements.
Based on BOEM's experience in the oil and gas industry, BOEM has
concluded credit ratings are the most reliable predictor of future
ability to meet obligations.\70\ The use of credit ratings would align
BOEM's assessment with widely accepted risk evaluation methods within
the banking and financial industry.
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\69\ See 17 CFR parts 240 and 249.
\70\ Credit ratings are part of current reliability criteria
discussed in existing Sec. 585.527(a)(3).
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BOEM believes that an NRSRO credit rating greater than or equal to
investment grade from Standard & Poor's Ratings Service (S&P) or from
Moody's Investor Service would be a sufficient indicator of future
reliability to allow a lessee or grant holder to use its financial
strength to meet its requisite financial assurances. BOEM also proposes
to use the same credit rating criteria to evaluate the financial
strength and reliability of a lessee's or grant holder's proposed
third-party guarantor. If a lessee, grant holder, or guarantor lacks an
NRSRO credit rating, it would be allowed to submit audited financial
statements--which generally include an income statement, balance sheet,
statement of cash flows, and auditor's certificate--prepared in
accordance with generally accepted accounting principles. Based on
these audited financial statements, BOEM then would determine a proxy
credit rating using the S&P Credit Analytics credit model or a similar
widely accepted credit rating model. BOEM has concluded that such a
model, used in conjunction with audited financial statements, can
generate a proxy credit rating comparable to that of an NRSRO.
(ii) Joint and Several Liability
Currently, co-lessees and co-grant holders are jointly and
severally liable for lease or grant obligations accruing during their
tenancy, including decommissioning.\71\ When a lease or grant is
assigned, the assignor remains liable for unmet obligations that
accrued before BOEM's approval of the assignment.\72\ The assignee is
liable for obligations that accrued before and after BOEM's approval of
the assignment.\73\ Moreover, the assignee is required to provide
requisite financial assurance.\74\ This joint and several liability
significantly reduces the risk of non-performance if any liable party
has adequate financial strength and reliability.
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\71\ 30 CFR 585.406(a).
\72\ 30 CFR 585.410.
\73\ 30 CFR 585.411(b).
\74\ 30 CFR 585.408(b)(8).
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BOEM seeks comment on whether it should explicitly rely on the
financial strength and reliability of these other liable parties,
including any current or predecessor lessees and grant holders, when
determining the need for, and amount of, financial assurance necessary
to cover all accrued lease or grant obligations.
H. Safety Management Systems
An SMS is a combination of policies, procedures, and control
mechanisms designed to meet an organization's safety objectives in a
disciplined and continually improving manner. BOEM regulations require
a lessee or a grant holder to develop an SMS for COP-approved renewable
energy facilities and for SAP- and GAP-approved facilities that BOEM
deems complex and significant. The SMS must be functional when a lessee
or grant holder begins its approved activities and throughout the
project.
1. Existing Regulations
BOEM's existing SMS regulations are brief and general, having been
promulgated in 2009 when construction and operation activities were
years in the future. The regulations require a lessee or a grant holder
to submit a general description of safety measures and capabilities,
emergency procedures, and testing protocols. Multiple Federal statutes
authorize various safety oversight activities by different agencies for
facilities on the OCS, including renewable energy facilities. BOEM
recognizes that duplicative enforcement of similar statutes by multiple
agencies is likely to be confusing and cause unneeded cost and delay.
Consequently, BOEM and BSEE have coordinated with the Occupational
Safety and Health Administration (OSHA) and the United States Coast
Guard (USCG)--the Federal agencies primarily responsible for OCS
facility safety management--to assure coordination and consistency with
the safety management responsibility of these agencies for OCS
facilities. BOEM's SMS requirements will become the primary tool to
ensure human and environmental safety with respect to renewable energy
development on the OCS. This rule is intended to clarify the
expectations of the SMS for the regulated community. It is also
designed to clarify the expected content of an SMS and support the
assessment by other Federal regulators that an SMS performance-based
approach to risk management will establish a reasonable regulatory
framework.
2. Why the Existing Regulations Should Be Updated
With construction and operation activities expected to commence
soon, OCS wind lessees and contractors have
[[Page 5990]]
informally asked BOEM to clarify its expectations regarding SMS
standards. The proposed rule would address those inquiries, incentivize
SMS certification from a recognized accreditation organization, add two
safety reporting requirements, and clarify that lessees and grant
holders would be required to have and use an SMS for all OCS activities
undertaken pursuant to a lease, from site assessment through
decommissioning.
Additionally, the proposed changes would reflect the recent DOI
policy statement clarifying that 30 CFR part 585 contains the primary
workplace health and safety regulations for OCS renewable energy
operations.\75\
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\75\ Notification of policy statement, 84 FR 55861 (Oct. 18,
2019).
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3. Proposed Changes
The Department proposes a performance-based approach that would
promote flexibility in determining the best way to ensure personnel
safety on and near OCS renewable energy facilities during activities
covered by the SMS. The proposed SMS changes are consistent with
industry's safety management best practices. The proposed amendments
would allow a lessee or grant holder to adopt U.S. and international
workplace health and safety standards as its SMS framework.
Under the proposed rule, upon SMS receipt, the Department would
engage with the lessee or grant holder to understand the risks the
safety system was designed to mitigate and how the system would
function. The proposed rule would provide transparency regarding the
types of information that the Department considers necessary in a
satisfactory SMS and would clarify that the Department expects the
lessee or grant holder to design, implement, and maintain the SMS
according to widely accepted standard practices. This clarification
would help prospective OCS renewable energy developers understand the
Department's SMS expectations.
The proposed rule would provide incentives for a lessee or grant
holder to obtain certification of its SMS from a recognized safety and
environmental management system CAB. A lessee or grant holder whose SMS
has been certified would be eligible for streamlined oversight in
recognition of the increased rigor in the development and
implementation of its SMS. While such certifications would not be
required and cannot guarantee streamlined oversight in all instances,
BOEM anticipates that most lessees and grant holders would pursue
certification as a best practice.
The proposed rule would add two reporting requirements. One report
would require an annual summary of how the SMS performed, normalized to
work hours and energy generation. This report would allow the
Department to verify SMS functionality and track continual
improvements.\76\ The second would be a triannual report summarizing
the results of the most recent SMS audit, the corrective actions
implemented, and a description of any changes made to the SMS since the
prior report. Data from these reports could be used to generate annual
industry-wide comparisons of safety performance.
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\76\ This report also would close a known reporting gap between
BOEM and OSHA, which requires annual reporting of workplace injury
and illness data.
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Finally, the proposed rule would provide that a lessee must have a
functional SMS before beginning any activity on the OCS pursuant to a
lease, and must use its SMS for all such activities, including site
assessment work. This would clarify the Department's expectations
regarding the stages at which an SMS must be functional and used,
including prior to the SAP, COP, or GAP.
I. Inspections
1. Existing Regulations
Existing regulations state that BOEM will inspect facilities and
vessels engaged in renewable energy activities to verify compliance
with applicable terms, conditions, laws and regulations, and to
determine whether safety equipment has been properly installed and
operated. The existing regulations that require the lessee to conduct
self-inspections are limited to inspections of structures, mooring
systems, and monitoring of corrosion protection.
2. Why the Existing Regulations Should Be Updated
OCS Lands Act section 1834(c) requires the Department to promulgate
regulations to provide for scheduled onsite inspection, at least once a
year, of each facility on the outer Continental Shelf. As currently
written, BOEM's regulations require BOEM to perform a scheduled on-site
inspection of all renewable energy facilities on the OCS and inspect
all safety equipment designed to prevent or ameliorate fires, spills,
or other major accidents.
To ensure that the OCS Lands Act mandate of an annual onsite
inspection is met, the Department proposes to update its regulations to
require the lessee conduct annual onsite self-inspections. The lessee
would also be required to maintain records of its self-inspections and
to provide these records to the Department upon request. This would
make the lessee accountable for ensuring safety and protection of the
environment. In addition, the Department would retain the ability to
conduct inspections at any time.
This update would allow for DOI to focus resources on conducting
inspections, both scheduled and unscheduled, based on designated
criteria, such as operational risk severity and risk probability,
industry trends, incident data, analytical data, safety management
system implementation and audits, and other observations.
This proposal would also reduce logistical and human resource
burdens on the operators by allowing them to schedule the annual self-
inspections with maximum efficiency by incorporating the inspections
into scheduled onsite activities.
3. Proposed Changes
(a) BOEM Inspection Requirement
The proposed rule would revise BOEM's requirement ``to conduct'' an
inspection on OCS facilities or any vessels engaged in renewable
activities to state that BOEM ``may conduct'' an inspection on an OCS
facility or any vessel engaged in renewable activities.
(b) Self-Inspection Requirements
The proposed rule would require that, once a facility has commenced
commercial operations, the lessee would conduct an onsite inspection of
its facility at least annually, including all safety equipment designed
to prevent or ameliorate fires, spillages, or other major accidents, to
satisfy the annual onsite inspection requirement of the OCS Lands Act.
The proposed rule would also require the lessee to maintain records of
the facility inspections, summarize the results of those inspections
and provide the records and the summary of the results to BOEM upon
request.
J. Other Proposed Changes
The Department proposes other regulatory changes that fall outside
the eight categories previously discussed. The most significant of
these proposed changes are summarized here. Other changes correct
technical errors or clarify inconsistencies arising from this proposed
rule. All these proposed changes and their rationales are discussed
further in section VI.
[[Page 5991]]
1. Lease Structure
The proposed rule would change the default lease terms in Sec.
585.235 by merging the existing preliminary and site assessment terms
into one preliminary period; establishing new lease periods for COP
review and for design and construction that can vary in length based on
the duration of the COP review and the design and construction process;
and converting the existing 25-year operations term that commences at
COP approval into a 30-year operations period commencing at the
commercial operations date. These proposed changes recognize most
lessees will not submit SAPs, account for the time required for permit
review and construction, and provide certainty to a lessee regarding
the operations period of its renewable energy project.
2. Lease Segregation and Consolidation
BOEM has received requests from lessees to segregate single leases
into multiple leases, held by different subsidiaries, as well as to
consolidate multiple adjacent leases into a single lease. BOEM
regulations allow such segregations and consolidations, and the
proposed rule would clarify the existing regulations by establishing
specific procedures.
3. Civil Penalties
BOEM's renewable energy regulations do not explicitly provide for
assessing immediate civil penalties for violations that constitute(d) a
threat of serious, irreparable, or immediate harm or damage to life,
property, or the marine, coastal, or human environment, without notice
and an opportunity to correct. However, the authority for doing so is
set forth in the OCS Lands Act. This proposed rule would amend the
Department's regulations to ensure that its civil penalty regulations
are coextensive with its statutory authority.
4. Standardize Annual Rental Rates for Grants
The proposed rule would standardize the annual rental rate for most
grants. Under the proposed rule, BOEM would apply a $5 per acre annual
rental rate for both ROWs and RUEs.
5. Technical Corrections and Clarifications
Finally, the proposed rule would make numerous minor technical
changes. These technical revisions maintain consistency with proposed
changes elsewhere in the regulations, clarify ambiguities, correct
technical errors, and improve organization. Examples of proposed
changes in this category include:
Clarifying that under 30 CFR 585.103(a)(1), regulatory
departures may be granted when necessary to facilitate programmatic
activities before, during and after lease termination.
Replacing reference to the Immigration and Naturalization
Service, which no longer exists, with ``appropriate Federal immigration
authority.''
Eliminating the paper copy submission requirement for
plans, applications, reports, and notices to modernize procedures and
to promote responsible stewardship of resources.
Replacing ``BOEM'' with ``ONRR'' in certain provisions to
reflect that ONRR is the correct payee for all lease and grant
payments.
Revising the cross-reference to BSEE's 30 CFR part 254
regulations in BOEM's oil spill response plan requirement for COPs,
because the majority of 30 CFR part 254 does not apply to offshore
renewable energy.
Modifying the air quality provisions to reflect Congress'
2011 amendments to the CAA.
K. Potential Revisions to Regulations Governing Research Activities
BOEM requests public comments on whether the lease process for
research activities in existing Sec. 585.238 warrants amendment. This
proposed rule does not contain changes to this section, but BOEM is
interested in receiving comments on the following: whether it should
create a specific regulatory framework for research leases and
planning; whether it should expand the criteria for who can hold
research leases; whether the DNCI requirement can or should be relaxed
for research activities; and whether any other aspects of this section
deter OCS renewable energy research. Note that for one of the two
leases issued under this section to date, BOEM used its discretion to
require the submittal of a Research Activities Plan containing
information substantially the same as what is required to be included
in a COP.\77\
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\77\ See letter from Bureau of Ocean Energy Mgmt. to John
Warren, Dir., Va. Dep't Mines, Minerals & Energy (Mar. 23, 2016),
https://www.boem.gov/Approval-of-VOWTAP-Research-Activities-Plan/.
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L. Potential Revisions to Regulations Governing Transmission
BOEM recognizes a need to minimize impacts to the environment and
natural and cultural resources and maximize the utility of land-based
points of interconnection. BOEM is continuing efforts to explore a
coordinated approach to transmission, which could include the shared
use of cable corridors or other shared transmission solutions, such as
regional transmission systems, meshed systems, and the development of
an offshore grid. Accordingly, BOEM seeks comment on the types of
regulatory changes that would be appropriate to better accommodate
these options and to minimize impacts to environmental, natural, and
cultural resources. For example, should 30 CFR 585.200(b) be modified
to allow BOEM to encourage or require use of such options where they
are available and allow for full enjoyment of the lease? What
approaches or options should BOEM consider advancing in 30 CFR
585.200(b) to facilitate interconnection for lessees, while minimize
impacts to important resources?
VI. Section-by-Section Analysis of Proposed Rule
A. 30 CFR Part 585, Subpart A--General Provisions
Sec. 585.102 What are BOEM's responsibilities under this part?
Section 585.102(a) specifies that BOEM will authorize renewable
energy activities in accordance with OCS Lands Act subsection 8(p)(4),
as enumerated in Sec. 585.102(a)(1) through (12). BOEM is amending
this regulation to clarify that none of the enumerated requirements is
intended to outweigh or supplant any other. The purpose of this change
is to clarify that BOEM takes all of these relevant factors into
consideration in planning its renewable energy program and that no one
factor or consideration, by itself, should outweigh the other relevant
considerations.
Sec. 585.103 When may BOEM prescribe or approve departures from the
regulations in this part?
Section 585.103 was promulgated to allow BOEM to maintain
programmatic flexibility while adapting to a new and changing industry
by approving departures from regulatory requirements under certain
limited circumstances.\78\
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\78\ See supra note 51, at 19653.
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The proposed rule would modify Sec. 585.103(a) introductory text
and (a)(1) to specify that BOEM may prescribe or approve a departure
from the regulations when BOEM deems the departure necessary because
the applicable provision(s) as applied to a specific circumstance are
impractical or unduly burdensome and the departure is necessary to
achieve the intended objectives of the renewable energy program. In
this way BOEM would maintain flexibility to adapt the regulations to
the unique circumstances of this new and evolving industry while
[[Page 5992]]
retaining the consistency and integrity of the regulations as a whole.
The existing departure provisions of this section are limited in
scope to those regulatory provisions that apply to existing lease and
grant holders. However, BOEM has applied departures not only to
activities ``on a lease or grant,'' but also to activities that occur
before lease issuance (e.g., BOEM's planning and lease sale processes)
and after lease termination (e.g., decommissioning, release of
financial assurance). The proposed changes would allow for such
departures.
Minor updates to the provisions paragraphs (a)(2) through (4) were
made for consistency with the new language in Sec. 585.103(a). No
changes are proposed to Sec. 585.103(b) which lists the requirements
that an approved departure and its rationale must be consistent with
subsection 8(p) of the OCS Lands Act, protect the environment and
public health and safety, not impair the rights of third parties, and
be documented in writing.
Sec. 585.104 Do I need a BOEM lease or other authorization to produce
or support the production of electricity or other energy product from a
renewable energy resource on the OCS?
Section 585.104 traces the statutory language of the OCS Lands Act
in establishing that a lease, ROW, or RUE issued under this part is
required in order to construct, operate, or maintain facilities that
``produce or support production, transportation, or transmission of
energy from sources other than oil and gas.'' \79\ The proposed rule
would clarify that for purposes of this section, site assessment
activities are not considered to produce, transport, or support the
generation of any energy products; and, therefore, such activities do
not, by themselves, require a lease, easement or ROW. As discussed
above in section V.A of this preamble, this revision is intended to
clarify that an entity does not require a lease from BOEM to deploy a
met buoy or tower for site assessment activities that are not located
on an existing commercial lease. Under the proposed rule, BOEM would
not require a separate lease for the deployment of such facilities.\80\
The USACE would be the lead Federal permitting agency for such
facilities under its existing legal authority, though other agencies
may also have permitting or consultation requirements, such as NOAA
under the NMSA (for any off-lease site assessment activities that may
occur within a national marine sanctuary or in the vicinity of a
national marine sanctuary).
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\79\ 43 U.S.C. 1337(p)(1)(C).
\80\ BOEM would nonetheless require a commercial lessee, that
seeks to install a met tower, to submit a SAP in addition to the
USACE permit, given the potential impacts that might be caused by
such towers.
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Sec. 585.105 What are my responsibilities under this part?
BOEM is proposing a minor modification to strengthen the
requirement for lessees to comply with all applicable laws,
regulations, other requirements, the terms of the lease or grant under
this part, reports, notices, approved plans, and any conditions imposed
by BOEM. This would expand, strengthen, and clarify the language found
in current Sec. 585.105(d), requiring compliance only with the
``terms, conditions, and provisions of all reports and notices
submitted to BOEM, and of all plans, revisions, and other BOEM
approvals, as provided in this part.''
Sec. 585.106 Who can acquire or hold a lease or grant under this part?
BOEM proposes several changes to its qualification requirements.
First, the proposed rule would replace the word ``hold'' with
``acquire or hold'' throughout this section to clarify that the
qualification requirements of Sec. 585.106 are intended to apply both
to the acquisition and retention of both OCS lease and grant interests.
BOEM does not require automatic forfeiture of a party's existing lease
and grant interests if the lessee or grant holder no longer meets the
criteria in this section; rather, the cancellation provisions at Sec.
585.437 would be the appropriate vehicle for revoking a lease.
Second, the proposed rule would correct Sec. 585.106(a) to list
the citizenship qualifications in the disjunctive and not the
conjunctive by substituting ``or'' for ``and'' in Sec. 585.106(a)(6).
Third, the proposed rule would add criteria that may disqualify a
party from acquiring a lease or grant interest under this part and,
consequently, from participation in the lease and grant issuance
processes. The proposed rule would prevent a party that has been
disqualified from acquiring a lease or grant interest (because it
either lacks the basic regulatory qualifications or has engaged in
certain enumerated misconduct) from participating in any lease or grant
issuance processes under this part. This provision closes a loophole by
prohibiting a party disqualified from acquiring a lease or grant
interest from entering into commercial agreements to participate in the
lease or grant issuance processes on behalf of a third party. This
provision also would clarify BOEM's authority to disqualify a party
from an auction, which is not explicitly set forth in the existing
regulations. These proposed provisions are intended primarily to deter
current and potential lessees and grant holders from engaging in
conduct that is illegal or detrimental to BOEM's renewable energy
program and to the fair conduct of its auctions.
A party under consideration for disqualification would receive
written notice from BOEM of the basis for the disqualification and
would be provided an opportunity to be heard before BOEM issues a
final, appealable decision. BOEM also may instruct that party regarding
what remedial actions, if any, would restore its qualification. Until
such remedial actions are completed to BOEM's satisfaction or until
qualification is otherwise restored, a disqualified party would be
ineligible to acquire a lease or grant under this part or to otherwise
participate in BOEM's competitive and noncompetitive lease or grant
issuance processes.
Sec. 585.107 How do I show that I am qualified to be a lessee or grant
holder?
BOEM proposes a technical correction to paragraph (b) to reflect
that the Immigration and Naturalization Service no longer exists and to
avoid the need for future technical corrections in the event of another
change in the name of the relevant Federal immigration authority.
Sec. 585.110 How do I submit plans, applications, reports, or notices
required by this part?
BOEM proposes to eliminate its paper copy requirement and rely
primarily on electronic submissions. The paper requirement has proven
unwieldy for voluminous plan submittals that contain multiple
appendices and may be subject to multiple revisions before they are
finalized.
BOEM proposes to reserve the authority to require paper copies of
certain documents (such as maps and charts) if necessary.\81\ The
proposed rule also would eliminate the specific BOEM mailing address to
avoid the need for future technical corrections if BOEM's mailing
address changes again. Instead, the mailing addresses for BOEM
submissions would be listed for the appropriate contacts on BOEM's
website.
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\81\ BOEM proposes to retain the paper copy requirement for
assignment applications given the importance of having an original
signed version. See discussion infra VI.E Sec. 585.408.
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Sec. 585.112 Definitions
The proposed rule would add a new definition for ``bidding
credits.'' Bidding
[[Page 5993]]
credits are defined as the value assigned by BOEM, expressed in
monetary terms, to the factors or actions demonstrated, or committed
to, by a bidder at a BOEM lease auction during the competitive lease
award process. The regulations further specify that the types and
values of any bidding credits awarded to any given bidder will be set
forth in the FSN.
The proposed rule would modify the definition of ``commercial
activities'' to state that such activities are conducted ``under''
leases and grants. This modification would maintain consistency with
the proposed revisions to Sec. 585.104 by clarifying that site
assessment activities that are not conducted on a commercial lease (and
thus do not require a lease) are excluded from the definition of
``commercial activities.''
The proposed rule would modify the definition of ``commercial
operations'' to state that the term means the generation of electricity
or other energy product for commercial use, sale, and distribution on a
commercial lease, but does not mean either generation needed to prepare
a final FIR or generation for testing purposes, provided the
electricity generated for such testing is not sold on a commercial
basis.
The proposed rule would add a new definition for ``Critical Safety
System'' to mean safety systems and equipment designed to prevent or
ameliorate major accidents that could result in harm to health, safety,
or the environment associated with the lessee's or grant holder's
facilities. This modification would clarify new requirements in
Sec. Sec. 585.705, 585.707, 585.708, 585.710, 585.712, and 585.637 for
the CVA to verify the commissioning of critical safety systems.
The proposed rule would add a definition for the term ``engineered
foundation,'' which would mean any structure installed on the seabed
using a fixed-bottom foundation constructed according to a professional
engineering design (based on an assessment of sedimentary,
meteorological, or oceanographic conditions). Comments are solicited on
the appropriateness of the definition of this term, as used in the
proposed rule.
The proposed rule would also add a definition for the term
``fabrication'' which would mean the cutting, fitting, welding, or
other assembly of project elements of a custom design conforming to
project-specific requirements. Fabrication does not include the
procurement of discrete parts of the project that are commercially
available in standardized form and type-certified components.
The proposed rule would also add definitions for the terms ``lease
area'' and ``provisional winner'' to provide clarity in the regulatory
text. Lease area is an OCS area identified by BOEM for potential
development of renewable energy resources. The provisional winner is
the bidder that BOEM determines at the conclusion of the auction to
have submitted the highest bid. The provisional winner would become the
winning bidder upon favorable completion of the government's post-
auction reviews.
The proposed rule would also add a new definition of ``multiple
factor auction,'' which would be defined to mean an auction that
involves the use of bidding credits to incentivize goals or actions
that support public policy objectives or maximize public benefits
through the competitive leasing auction process. In all multiple factor
auctions, BOEM would add the monetary value of the bidding credits to
the value of the cash bid to determine the highest bidder.
The proposed rule also would define ``receipt'' of a document as
having been deemed to take place, in the absence of documentation to
the contrary, (a) 5-business days after the document was given to a
mail or delivery service with the proper address and postage; or (b) on
the date the document was sent electronically. This proposed definition
borrows from the Interior Board of Land Appeals regulation on service
of documents at 43 CFR 4.401(c)(7), but acknowledges that most
documents will be transmitted instantaneously through electronic means.
In the absence of documentation evincing actual receipt, the
presumption of constructive receipt in this definition would be
overcome by evidence demonstrating that a document was either not
received or received in more or less time than the default timeframes
set forth. The definition of ``receipt'' would apply to variants of
that word, including variants of ``receive,'' and would apply only
where those terms are used in the regulations to describe the receipt
of a document when the timing of receipt triggers a regulatory time
period or consequence.
Finally, BOEM proposes a technical correction to the definition of
``site assessment activities'' to avoid possible confusion with site
characterization activities.
Sec. 585.113 How will data and information obtained by BOEM under this
part be disclosed to the public?
BOEM proposes a technical change, substituting the word
``operations'' for ``generation'' in paragraph (b)(1), so that BOEM's
review of the data and information will be done ``3 years after the
initiation of commercial operations . . .,'' to provide greater
consistency with the remainder of BOEM's offshore renewable
regulations.
Sec. 585.114 Paperwork Reduction Act Statements--Information
Collection
BOEM proposes to update the table in this section to align with
proposed regulations.
Sec. 585.116 Requests for Information
The existing regulations reference two public information requests
that share the same acronym: requests for interest (RFI) under
Sec. Sec. 585.210 and 585.231, and requests for information (RFI)
under Sec. 585.116. The proposed rule would combine all such notices
in a revised Sec. 585.116 and call them requests for information. The
request for interest is an optional step in the leasing process that
assists BOEM in collecting information in advance of initiating a new
leasing process. BOEM used the request for interest in this way several
times, especially early in the program. However, more recently, the
practice has been to initiate the leasing process with the next,
mandatory step in the leasing process, publishing a Call. The proposed
rule suggests eliminating the request for interest as a step in the
leasing process. In the event that BOEM would like to start the leasing
process with a solicitation of information from the public, the more
general request for information under Sec. 585.116 is available to
serve that need.
Sec. 585.118 What are my appeal rights?
BOEM's existing renewable energy regulations discuss appeal rights
in two sections--Sec. Sec. 585.118 and 585.225. Section 585.118
describes appeals of BOEM final decisions made under part 585. Section
585.225 provides that a bidder may request the Director to reconsider
its bid rejection. To simplify and clarify the administrative review
provisions, the proposed rule would combine these two sections by
locating all procedures for review of BOEM renewable energy final
decisions or orders in a revised Sec. 585.118. This revised section
would maintain the existing distinction between requesting
reconsideration of rejected bids and appeals of other final decisions
made under part 585, but will now characterize challenges to decisions
selecting provisional winners as appeals to the Director, rather than
requests for reconsideration.
The proposed section would provide appeal rights to any adversely
affected bidder of a provisional winner selection
[[Page 5994]]
decision. Currently, Sec. 585.225(b) limits requests for
reconsideration to those with rejected bids. The proposed section would
also provide provisional winners an opportunity to appeal if they
believe there have been any errors or omissions in the selection
decision, such as miscalculated or unapplied bidding credits.
This proposed section would specify that BOEM must receive written
appeals of a decision selecting the provisional winner within 15-
business days after a bidder receives notice of the decision. This is
consistent with the existing regulations at Sec. 585.225(b) and
clarifies the existing language at Sec. 585.118(c)(1). This section
would adopt the rules found in the appeal procedures at 30 CFR 590.3 of
this chapter for determining when a selection decision is received.
Finally, the proposed section would clarify two points regarding an
appeal of a decision selecting the provisional winner. First, the
provisional winner would have an opportunity to be heard before the
BOEM Director reverses a selection decision. Second, the Director's
decision would not be appealable administratively to the Interior Board
of Land Appeals.
B. 30 CFR Part 585, Subpart B--The Renewable Energy Leasing Schedule
Sec. 585.150 What Is the Renewable Energy Leasing Schedule?
BOEM is proposing to add a new subpart and section to the
regulations that would define a proposed leasing schedule for the
renewable energy program. BOEM determined that a new subpart is
appropriate given the nature of this change and the potentially
significant benefit to stakeholders. This proposed schedule would
include a list of locations under consideration for leasing and a
schedule that BOEM would follow in holding its future renewable energy
lease sales. According to this proposal, at least once every 2 years,
the Secretary would publish this schedule of proposed lease sales. The
first published schedule would be issued for the 5-year period
following the effective date of this rulemaking and subsequent
schedules will cover the 5-year period after the update. This schedule
would include a general description of the area of each proposed lease
sale, the calendar year in which each lease sale will occur, and the
reasons for any changes made to the previous schedule. BOEM is
soliciting comments from stakeholders regarding this provision. Any
proposed leasing would be subject to all applicable regulations,
including area identification, coordination with relevant parties, and
applicable environmental reviews.
C. 30 CFR Part 585, Subpart C--Issuance of OCS Renewable Energy Leases
General Lease Information
Subpart B, Issuance of OCS Renewable Energy Leases, is being
redesignated as subpart C to accommodate the addition of a new subpart
B, as noted above. The individual section numbers in subpart C and in
subsequent subparts have not been changed.
Sec. 585.202 What types of leases will BOEM issue?
BOEM proposes a technical revision to this section to make it
consistent with subsection 8(p) of the OCS Lands Act and the proposed
revisions to Sec. 585.104, as well as to add a reference to leases
issued for research activities under Sec. 585.238.
Sec. 585.203 With whom will BOEM consult before issuance of leases?
BOEM proposes to make a technical correction to the penultimate
sentence of this section by removing the word ``including'' and
replacing it with ``include.''
Competitive Lease Award Process--Pre-Auction Provisions
Sec. 585.210 What are the steps in BOEM's competitive lease award
process?
Proposed Sec. 585.210 would provide an overview of the competitive
leasing process and effectively would merge existing Sec. Sec. 585.210
and 585.211. The proposed rule would replace the request for interest
in the existing Sec. 585.210 with a request for information in the
revised Sec. 585.116. The revised Sec. 585.210 would provide an
overview of the entire competitive leasing process by including two
steps that are not currently mentioned in this section of the existing
regulations: the auction and lease award.
Sec. 585.211 What is the Call?
Proposed Sec. 585.211 would consolidate the existing Sec. Sec.
585.211(a), 585.213, and 585.214, which describe the information
requested by the Call, the information a respondent should include in
its response if it wishes to nominate one or more areas for a
commercial renewable energy lease within the preliminarily identified
leasing areas, and BOEM's handling and processing of the information
received. The primary purpose of this proposed change is
reorganization; no substantive changes would be made to BOEM's existing
regulations and practice. BOEM proposes to remove the reference to
withholding privileged and confidential information as redundant of the
protections already described in Sec. 585.113.
Sec. 585.212 What is area identification?
Proposed Sec. 585.212 would provide more clarity regarding BOEM's
area identification process, thus expanding the description of this
step in the existing Sec. 585.211(b). This section would make no
substantive change to the existing process.
This section would clarify that BOEM balances potential OCS
renewable energy development with competing uses and environmental
concerns during area identification and attempts to resolve foreseeable
issues. Consistent with the existing regulations and practice, BOEM
would determine during area identification whether specific OCS areas
are suitable for further consideration for renewable energy development
with appropriate mitigation.
BOEM would consider any factors that it determines relevant during
this process. These factors may include, but would not be limited to,
other uses in and around the area, applicable environmental analysis,
formal and informal stakeholder comments, industry nominations, and the
area's feasibility for development. Consideration of the area's
feasibility for development could include, but would not be limited to,
analysis of the area's size and other relevant physical conditions,
potential electrical generation capacity, pertinent technical data, and
applicable electricity market and offtake information. For example,
BOEM may incorporate a high-level assessment of an area's
characteristics that would be relevant to potential development, such
as bathymetry, distance to shore, and wind resources, and may consider
an adjacent State's offshore wind energy offtake or incentive programs.
BOEM would retain the flexibility to modify the selection of
parcels offered for leasing after area identification and before the
auction. Also consistent with existing regulations, BOEM would use the
area identification process to inform its NEPA review and associated
interagency consultations to evaluate the potential effects of
activities that are expected to take place after lease issuance on the
human, marine, and coastal environments and on other environmental
requirements. For example, the National Marine
[[Page 5995]]
Sanctuaries Act may apply to any actions that may injure sanctuary
resources or that may require permits for placement of equipment or
disturbance of covered submerged lands. In any case where a NMSA permit
may be required, NOAA may require certain financial assurances for
infrastructure removal activities potentially required under permit.
BOEM may develop lease stipulations or other measures as part of its
NEPA review to mitigate potential adverse impacts and may hold public
hearings regarding its environmental analyses after potential lease
areas have been identified.
Sec. 585.213 What information is included in the PSN?
The analyses of the proposed sections on the PSN and the FSN,
Sec. Sec. 585.213 and 585.214 respectively, emphasize the close
interrelationship between the notices, and enhance understanding.
The PSN and FSN are closely related but distinct notices published
in the Federal Register that detail the auction procedures and lease
provisions relevant to a particular lease sale. Currently, the PSN
proposes procedures and provisions and invites public comment on them;
the FSN establishes the final procedures and provisions. BOEM uses the
public comments received in response to the PSN to inform its decisions
regarding the final procedures and provisions in the FSN.
Proposed Sec. Sec. 585.213 and 585.214 would replace Sec. 585.216
of the existing regulations. These proposed sections would not change
substantially the nature, scope, or content of the PSN and FSN from
BOEM's existing regulations and practice. However, the proposed
sections would clarify BOEM's existing authority to set a maximum
number of lease areas that an individual party may bid on or acquire in
an auction. The proposed rule would separate the PSN and FSN
regulations into individual sections because, although the notices are
closely related, each notice represents a distinct step in the leasing
process. The PSN and FSN would continue to serve as the primary sources
of information for prospective bidders on the lease areas, auction
procedures, and lease provisions. Also, proposed Sec. 585.223 would
outline supplemental auction information that may be contained in the
PSN and FSN.
Sec. 585.215 What may BOEM do to assess whether competitive interest
for a lease area still exists before the auction?
BOEM's existing regulation at Sec. 585.212 explains the process
BOEM follows if it has reason to believe competitive interest no longer
exists before the FSN is issued. Proposed Sec. 585.215 would maintain
essentially the same process for determining whether competitive
interest remains and then acting on that determination. This section
would clarify, however, that BOEM may engage this process any time
before the auction when it has reason to believe competitive interest
is absent. The competitive lease issuance process is the ``default''
under the OCS Lands Act,\82\ so BOEM may proceed with an auction
regardless of the result of its competitive interest inquiry under this
section.
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\82\ 43 U.S.C. 1337(p)(3).
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Sec. 585.216 How are bidding credits awarded and used?
Proposed Sec. 585.216 would allow the provisional winner's bid to
include the value of bidding credits awarded if the provisional winner
has made certain demonstrable commitments that facilitate OCS renewable
energy development and that reflect a developmental advantage, or
advance public policy--for instance, a power purchase agreement. The
PSN and FSN would prescribe the use of bidding credits in a particular
auction, including eligibility requirements, application procedures,
and the types and values of available credits. BOEM would retain
discretion not to offer bidding credits in a given auction.
A bidder would be awarded bidding credits before the auction under
the FSN if it timely submits a bidding credit application with the
requisite commitments and meets eligibility requirements. Depending on
the FSN provisions, a bidder might be eligible for multiple bidding
credits if the bidder meets the criteria for each credit. The FSN could
provide for bidding credits that are stackable or non-stackable.
Stackable credits are those where the total value of a bidder's bidding
credits would be the sum of all the credits for which the bidder was
eligible. Alternatively, the FSN may limit the bidding credits to non-
stackable credits, where the total value of a bidder's bidding credits
would be limited to the value of the largest bidding credit for which
the bidder was eligible. Stackable credits would incentivize bidders to
meet the criteria for as many of the available bidding credits as they
can. Alternatively, using non-stackable credits would limit the total
value of the non-monetary component of the bid. Bidding credits may be
denominated as either a fixed dollar amount or a percentage of the cash
bid, as specified in the FSN.
The FSN would specify the procedures, timing, and eligibility
requirements for bidding credits. BOEM would inform bidders before the
auction of the value of each bidding credit for which they are
eligible. A provisional winner who received bidding credits would pay
its bonus as the amount of the cash component of its winning bid less
the bid deposit, as prescribed in the FSN. The regulation text would
further specify that qualification to obtain bidding credits must be
done in advance of any lease auction, in accordance with the
specifications of the FSN; however, such qualifications may be obtained
either for actions that the bidder has already undertaken or for
actions which it has committed to undertake in the future, provided
that BOEM has agreed to the terms by which such a commitment will be
made. If a bidder receives a bidding credit for a commitment to future
action, acceptance of the lease would constitute an obligation to
undertake those actions, and failure to do so would constitute
noncompliance with the lease.
BOEM is soliciting comments on whether the regulations should
codify its past practice of imposing a cap on the value of bidding
credits that any bidder can earn, measured as either an absolute dollar
amount or as a percentage of the bid amount. Bidding credit limits in
past auctions ranged from 10 to 25 percent of the high bid. If
implemented, this cap would be intended to ensure that BOEM obtains a
fair return on the prospective lease.
BOEM is also requesting comment on what factors in proposed Sec.
585.216(b) should qualify for credits, particularly the policy-based
factors described in Sec. 585.216(b)(5), and how such factors could
best be quantified for the purpose of calculating their value as part
of the auction process.
Competitive Lease Award Process
Sec. 585.220 How will BOEM award leases competitively?
BOEM proposes to continue to implement multiple factor auctions,
through the use of bidding credits, to allow the competitive lease
award process to take into consideration various priority actions, such
as advancing a domestic supply chain and providing workforce
development agreements, consistent with the goals of the OCS Lands Act.
As noted previously, bidding credits represent a monetary value
assigned by BOEM to the actions or factors demonstrated or committed to
by a bidder at a BOEM
[[Page 5996]]
lease auction during the competitive lease award process. The value of
the bidding credits would be added to the value of the cash bid to
determine who is the highest bidder.
The existing regulations at Sec. Sec. 585.220 through 585.222 set
forth options that BOEM can use for auction formats, bidding systems,
and bid acceptance criteria for both commercial and limited leases. As
discussed in section V.E above, entitled ``Lease Issuance Procedures,''
these regulations are overly prescriptive and require clarification and
modification to provide BOEM with flexibility to adopt new and
innovative auction processes and procedures. Proposed Sec. 585.220
would replace these sections with a simplified and flexible approach
that would allow BOEM to use any auction process, including multiple
factor, and any procedure that is objective, fair, reasonable, and
competitive; awards a lease based upon the highest total bid; and
provides a fair return to the United States. This section also would
clarify that the specific process for each auction would be noticed in
the PSN and, subject to revisions, finalized in the FSN.
BOEM is soliciting comments on the various alternatives that could
be used to incorporate incentives and preferences into the competitive
leasing process.
Sec. 585.221 What general provisions apply to all auctions?
This is a newly proposed section that would set forth the
provisions and rules applicable to all auctions. This proposed section
would codify the existing practice whereby BOEM conducts an auction if
it determines after the Call that competitive interest exists for
renewable energy development on parcels of the OCS and decides to issue
leases within those areas. Proposed Sec. 585.221 would codify the use
of the FSN to prescribe the detailed process for any auction.
Proposed Sec. 585.221(d) would add details to outline the
circumstances under which BOEM may delay, suspend, cancel, and restart
an auction due to a natural or man-made disaster, technical
malfunction, security breach, unlawful bidding activity, administrative
necessity, or any other reason that BOEM determines may adversely
affect the fair and efficient conduct of the auction. The proposed
Sec. 585.221(d) would also add a provision that BOEM may restart the
auction at whatever point it deems appropriate, reasonable, fair, and
efficient for all participants; or, alternatively, BOEM may cancel the
auction in its entirety.
Sec. 585.222 What other auction rules must bidders follow?
Proposed Sec. 585.222 would establish a set of procedures and
rules of conduct for bidders. This section would be consistent with
BOEM's existing practices and would include requirements that bidders
submit bid deposits in accordance with Sec. 585.501, and meet
Sec. Sec. 585.106 and 585.107 qualification requirements. If the
awarded lease is executed by an agent acting on behalf of the bidder,
the bidder must submit, along with the executed lease, written evidence
that the agent is authorized to act on behalf of the bidder, as is
already required under existing Sec. 585.224(g). Notably, this section
would explicitly prohibit bidders from disclosing their auction
strategies and economic valuations of the lease area to other bidders
listed in the FSN in such a way as to adversely affect the ability of
the United States to obtain a fair return from the auction. This
prohibition is aimed at deterring pre-auction communications among
bidders regarding their preferred lease areas or the maximum amount
they are willing to bid, which could constitute an explicit or tacit
agreement that has the effect of reducing competition for a particular
lease. Such communications between bidders may undermine an auction's
competitiveness and adversely affect the ability of the United States
to obtain a fair return from the auction.
This proposed provision would not impede commercial speech by
bidders regarding their participation in the auction. For example,
public announcements regarding a bidder's intent to participate in an
upcoming OCS renewable energy auction would not be prohibited by the
proposed rule. BOEM nonetheless seeks comment on whether the proposed
language constitutes an appropriate and effective means of preventing
anti-competitive bidder behavior and on whether there are alternative
means of achieving this goal.
Sec. 585.223 What supplemental information will BOEM provide in a PSN
and FSN?
Proposed Sec. 585.223 would contain a non-exhaustive list of
supplemental auction details likely to be contained in a PSN and FSN.
Although this section lacks an analogue in the existing regulations,
the supplemental details listed in this section generally are
consistent with the information that BOEM has provided in recent FSNs.
This section would clarify the concept of the next highest bidder and
would describe the process to determine the next best bid if the
provisional winner fails to meet its obligations or is otherwise unable
to acquire the lease. The next best bidder criteria would be detailed
in the PSN and FSN.
Competitive Lease Award Process--Post-Auction Provisions
Sec. 585.224 What will BOEM do after the auction?
Proposed Sec. 585.224 would outline the steps that BOEM would take
following the end of an auction. This section would make explicit
existing practices that are consistent with the OCS Lands Act and that
have proven effective in BOEM's auctions thus far. Proposed Sec.
585.224 would retain BOEM's existing authority in Sec. Sec.
585.222(a)(2) and 585.224(f) to reject and accept bids and to withdraw
lease areas between auction completion and lease execution. Finally, if
an auction results in unsold lease areas, proposed Sec. 585.224 would
clarify that BOEM has the discretion to re-auction those unsold areas
after the auction by restarting the competitive leasing process at any
reasonable and appropriate step in that process.
Sec. 585.225 What happens if BOEM accepts a bid?
Proposed Sec. 585.225 would set forth the steps BOEM and the
provisional winner would take after the auction. This section would
function similarly to the existing regulations at Sec. 585.224(a),
(b), (c), and (e), but contains several new proposed provisions. First,
this proposed section would provide that BOEM will refund without
interest any portion of the provisional winner's bid deposit that
exceeds the amount due from the winning bid. Second, this proposed
section would permit BOEM to extend the 10-business-day deadline for
the completion of the provisional winner's obligations to allow greater
flexibility in addressing unforeseen situations, such as a Federal
Government shutdown or pandemic. This proposed section would require
payment of the first 12 months' rent within 45-calendar days after the
provisional winner receives the executed lease from BOEM as opposed to
45-calendar days after receiving the three unexecuted lease copies as
provided under the existing regulations. Finally, under this proposed
section, the provisional winner would become the winning bidder when
BOEM executes the lease after any properly filed appeals under proposed
Sec. 585.118(c) have been resolved. The effective date of the lease
would continue to be governed by Sec. 585.237.
[[Page 5997]]
Sec. 585.226 What happens if the provisional winner fails to meet its
obligations?
The existing regulations at Sec. 585.224(d) state that a winning
bidder will forfeit its bid deposit if it fails to execute and return
the lease within 10-business days or otherwise fails to comply with
applicable regulations or terms of the FSN. While no winning bidder has
failed to meet its post-auction obligations thus far, BOEM recognizes
the potential for such a situation and seeks to provide flexibility in
its response to such a possibility.
Proposed Sec. 585.226 would specify that, if BOEM determines that
a provisional winner has failed to meet its obligations under Sec.
585.225(b) or Sec. 585.316, or has otherwise failed to comply with
applicable laws, regulations, BOEM may require forfeiture of the bid
deposit. In the event the bid deposit exceeds the winning bid, BOEM
would limit the required forfeiture amount to the lower value, that of
the winning bid.
Proposed Sec. 585.226 would also set forth the additional actions
BOEM could take if a provisional winner fails to meet its obligations.
These possible actions would include refusal to award other leases won
by the provisional winner in the auction and referral to DOI's
Administrative Remedies Division for suspension or debarment review
pursuant to 2 CFR part 180 as implemented at 2 CFR part 1400. This
section also would specify that if the provisional winner fails to meet
its obligations or is otherwise unable to execute a lease, BOEM could
select a new provisional winner by either repeating the auction,
selecting the next best bid, or using other criteria specified in the
FSN.
Noncompetitive Lease Award Process
Sec. 585.231 Will BOEM issue leases noncompetitively?
BOEM proposes several modifications, both significant and minor, to
its noncompetitive leasing process. First, this proposed rule would
clarify paragraph (a) to re-affirm that BOEM will only use the
noncompetitive process if it ``determines after public notice of a
proposed lease, easement, or right-of-way that there is no competitive
interest.'' \83\
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\83\ 43 U.S.C. 1337(p)(3).
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Second, in the event that a company submits a request for BOEM to
issue a lease and submits the required acquisition fee, BOEM may issue
a request for information in the Federal Register to determine whether
any other companies also have an interest in that area. In the event
that BOEM issues such a request for information and no responses are
received, BOEM may issue a lease noncompetitively. The proposed rule
would revise paragraph (b) to clarify that BOEM has discretion to
determine whether an unsolicited lease request should be the subject of
a request for information. BOEM occasionally receives unsolicited
requests for areas that it may deem inappropriate for leasing without
seeking public input (e.g., previously leased areas or areas that
straddle a USCG traffic separation scheme). In the event that BOEM
elects not to issue a request for information in response to the
unsolicited lease request, BOEM would not issue a lease
noncompetitively and will refund the acquisition fee. BOEM occasionally
receives unsolicited requests for areas that it may deem inappropriate
for leasing without seeking public input (e.g., previously leased areas
or areas that straddle a USCG traffic separation scheme).
Third, the proposed rule would add a timeline and sunset provision
to BOEM's noncompetitive leasing processes. The existing regulations
establish neither an expiration date for a DNCI nor deadlines for the
noncompetitive leasing process. If BOEM were to leave the regulations
in the current form, this could allow a company to obtain a
noncompetitive lease in situations where there may potentially be other
interested lessees in the future (due to changes in circumstances).
Accordingly, proposed paragraphs (d) and (e) would create the following
milestones for the noncompetitive leasing process:
After publication of the DNCI, BOEM would prepare and
provide the beneficiary with a written estimate of the fees for
conducting an environmental review of lease issuance.
The beneficiary has 90-calendar days from receipt of the
fee estimate to pay the fee.
The DNCI would expire within 2 years of publication,
unless BOEM determines, on a case-by-case basis, that this timeframe
should be extended.
BOEM specifically seeks comment on the reasonableness of its
proposed schedule and timeframes for a DNCI.
Fourth, the proposed rule in paragraph (d)(3) would clarify that
BOEM would conduct an environmental review of a noncompetitive lease
request that it determined had no competitive interest and which BOEM
intends to process. Fifth, the proposed rule would specify that BOEM
will make a decision whether to issue a noncompetitive lease after the
completion of its environmental review and other reviews required by
Federal law (e.g., CZMA). BOEM, in Sec. 585.231(f), clarifies that for
noncompetitive leases, CZMA concurrences would be processed pursuant to
15 CFR part 930 subpart D. Based on current experience, BOEM expects
this to be a rare occurrence.
Finally, the proposed rule would make several miscellaneous
technical corrections and clarifications to this section. The proposed
rule would revise the existing section heading to more accurately
reflect the scope of this section. The proposed rule would replace the
``request for interest'' referenced in Sec. 585.231(b) with a request
for information consistent with the proposed revisions to Sec.
585.116. The proposed rule would make administrative changes to Sec.
585.231(c)(1) and (g)(1)(ii) to reflect updated cross-references in the
proposed rule. This proposed rule also would revise the payment due
date for the first 12 months' rent on a lease consistent with proposed
changes to Sec. Sec. 585.225 and 585.503. The remainder of the
noncompetitive lease issuance process would remain substantially the
same as in the existing regulations.
Sec. 585.232 May I acquire a lease noncompetitively after responding
to a request for information or a Call for Information and Nominations?
The proposed rule would revise the existing section heading of
Sec. 585.232 to reflect the change in nomenclature in proposed Sec.
585.116 from ``request for interest'' to ``request for information.''
It would also revise paragraph (c) to incorporate changes to the cross-
referenced provisions associated with the proposed rule.
Commercial and Limited Lease Periods
Sec. 585.235 What are the lease periods for a commercial lease?
BOEM proposes to overhaul the organization and duration of its
commercial leases as well as the triggers that move a lease from one
period of a lease to another. These changes are responsive to industry
comments, reflect BOEM's experience administering its leasing program,
and arise from other aspects of this proposed rulemaking--particularly
the elimination of the SAP for met buoys.
Under the existing regulations, BOEM's commercial leases comprise
three ``terms'':
A preliminary term of 12 months, starting at lease
execution and typically ending with the submission of a SAP.
[[Page 5998]]
A site assessment term of 5 years, starting at SAP
approval and ending with the submission of a COP.
An operations term of 25 years, typically starting at COP
approval.
BOEM automatically tolls the preliminary and site assessment terms
during its review of submitted plans; a lessee may request additional
time extensions if it does not timely file a plan.
The proposed rule would make numerous changes to the text and
structure of Sec. 585.235(a). First, BOEM proposes to rename its lease
``terms'' as lease ``periods'' to more appropriately describe the
progression of its commercial leases. This change in nomenclature is
intended to more accurately distinguish between the lease term (which
is the entire duration of the lease) and its constituent parts.
Next, BOEM proposes to merge the preliminary and site assessment
terms into one 5-year preliminary period that commences at the lease
effective date and ends either with the submittal of a COP to BOEM for
its review or 5 years after the lease effective date. This change flows
directly from BOEM's proposal to eliminate the SAP requirement for met
buoys.\84\ Given that most lessees are not expected to submit a SAP if
the proposed rule is finalized, BOEM believes it would no longer make
sense for a lease to contain a deadline for SAP submittal--much less to
use that deadline to trigger a new phase of the lease. (As discussed in
the section-by-section analysis of Sec. 585.601 in section VI.G.
below, BOEM also proposes to remove all deadlines for SAP submittal.)
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\84\ See supra section V.A, entitled ``Site Assessment
Facilities,'' for complete discussion.
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The proposed rule also would create two new lease periods between
the submission of the COP and the commencement of operations: the COP
review period, which starts at COP submittal and ends upon BOEM's
decision on whether to approve or disapprove the COP, or approve the
COP with modifications; and the design and construction period, which
starts at COP approval and ends at the commercial operations start date
or at the expiration of the period set forth in the approved COP as
modified. BOEM does not propose a fixed length for the COP review
period in order to preserve regulatory flexibility and to allow for
harmonization with recent government-wide permit review streamlining
initiatives (e.g., FAST-41).\85\ The approved COP will include a
timeline for the design and construction period, subject to
modification as mutually agreed to by BOEM and the lessee.
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\85\ Fixing America's Surface Transportation Act Title 41, 42
U.S.C. 4370m et seq.
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BOEM also proposes to set a 1-year time limit on a lessee after its
initial COP submission to resolve issues identified by BOEM and to
finalize its COP in order to incentivize lessees to submit properly
completed COPs that are ready for BOEM review and to encourage lessees
to make COP revisions diligently in response to BOEM comments.
BOEM seeks public comment regarding the need and means to set
specific regulatory timelines while preserving sufficient flexibility
within the COP review period and the design and construction period.
Lastly, BOEM proposes that the operations period commence at the
commercial operations start date and remain in effect for 30 years.
Presently, the 25-year operations term includes the time required for a
lessee to prepare and BOEM to review its FDR and FIR plus the time
required to construct the project--both of which significantly subtract
from the time available for commercial operations. BOEM believes that
its proposed revision would create certainty and facilitate project
financing by providing a fixed period of time in the lease dedicated to
commercial operations. BOEM also proposes to extend the operations
period to 30 years based on industry comments that this timeframe
better reflects the design life of an offshore wind facility.
BOEM recognizes that if this rule is finalized as proposed,
existing lessees may request modification of their leases to conform to
the new lease periods. BOEM intends to address these requests on a
case-by-case basis but understands that these new lease periods might
be advantageous to current lessees and that there are administrative
benefits to standardizing lease terms. BOEM seeks comment on whether
the final rule should contain a provision setting forth a process by
which existing lessees can request lease amendments to conform their
leases to the structure proposed in the amended Sec. 585.235 and,
potentially, to other regulatory changes in this proposed rule.
In addition to revamping the structure of its commercial leases,
BOEM proposes several provisions aimed at granting a lessee more
flexibility throughout the development process. First, BOEM proposes
expanding the criteria in Sec. 585.235(b) for granting extensions of
lease periods. Currently, the only enumerated basis for extending the
preliminary term or the site assessment term is if a lessee submits a
plan late. BOEM proposes to clarify that it has discretion to extend
any lease period for good cause. Second, BOEM proposes a new Sec.
585.235(c) clarifying that a lessee may propose an alternative lease
period schedule if it chooses to develop its lease in phases. Numerous
lessees have expressed interest in phased development of their leases,
but the existing regulations do not explicitly set forth a process for
modifying the default lease schedule if a lessee intends to defer
development on portions of its lease area. Third and relatedly, BOEM
proposes a new Sec. 585.235(d) providing that a lessee may seek
modification of the default lease schedule in its application to
segregate its lease or consolidate two adjacent leases. As discussed in
the section-by-section analyses of Sec. Sec. 585.410 and 585.413 in
section VI.E. below, BOEM previously has approved lease segregation and
consolidation requests and anticipates more such requests in the
future. However, the existing regulations do not explicitly address the
effects these actions might have on lease schedules.
Sec. 585.236 If I have a limited lease, how long will my lease remain
in effect?
BOEM proposes to substitute the word ``period'' for ``term'' to
ensure consistency with its proposed changes to Sec. 585.235.
Additionally, because limited leases may allow a wide range of
activities, the proposed rule would replace the existing 5-year
operations term with an operations period of a duration determined by
BOEM prior to auction (if the lease is issued competitively) or
negotiated with the applicant (if the lease is issued
noncompetitively). In either case, the length of the term will depend
on the intended use of the lease. The existing regulations specify that
extensions of the preliminary term if the GAP for the limited lease was
not submitted in a timely manner and was submitted late without
specifying any reason. BOEM proposes to allow extensions of a limited
lease's preliminary period only if the requested extension can be
justified for ``good cause,'' consistent with its proposed changes to
Sec. 585.235, BOEM also proposes to allow extensions of a limited
lease's operations period if the requested extension can be justified
for ``good cause.''
D. 30 CFR Part 585, Subpart D--Rights-of-Way Grants and Right-of-Use
and Easement Grants for Renewable Energy Activities
Subpart C, Rights-of-Way Grants and Right-of-Use and Easement
Grants for Renewable Energy Activities, is being redesignated as
subpart D to accommodate the addition of a new
[[Page 5999]]
subpart B, as noted in section VI.B above.
ROW Grants and RUE Grants
Sec. 585.301 What do ROW grants and RUE grants include?
BOEM proposes to remove the prescribed width of ROWs, in order to
implement the PDE approach discussed above in sections V.B, entitled
``Project Design Envelope,'' and V.C., entitled ``Geophysical and
Geotechnical Surveys,'' and to maintain consistency with BOEM's
proposed revisions to Sec. 585.628(g) for project easements. BOEM also
proposes a technical change to clarify that a subsea cable ROW may need
to accommodate multiple associated facilities.
Sec. 585.302 What are the general requirements for ROW grant and RUE
grant holders?
BOEM proposes a technical correction to update the cross references
in this section, reflecting that an applicant must meet the
qualifications set forth in Sec. Sec. 585.106 and 585.107 in order to
acquire a ROW or RUE.
Sec. 585.303 How long will my ROW grant or RUE grant remain in effect?
BOEM proposes to substitute the word ``period'' for ``term'' to
ensure consistency with its proposed changes to Sec. 585.235. By
renaming the preliminary term of a ROW and RUE as the preliminary
period, BOEM intends to more accurately distinguish between the entire
term of a ROW and RUE and its constituent parts. As with proposed Sec.
585.235, BOEM also anticipates that this proposed revision would
clarify whether and when a grant holder has control of its ROW or RUE.
BOEM also proposes to provide the same flexibility for the operations
period of its grants as it has with the operations period for its
limited leases in proposed Sec. 585.236(a)(2), both in terms of start
date and duration. Finally, BOEM proposes to allow extensions of either
grant period, consistent with its proposed changes to Sec. 585.235.
The existing regulations specify that the GAP must be submitted no
later than the end of the preliminary period in order for the grant to
remain in effect. BOEM proposes that the preliminary period may be
extended if the requested extension can be justified for ``good
cause.''
Current regulations specify that the ROW grant or RUE grant will
remain in effect for as long as it is being used for the purpose for
which it was granted. This proposed rule would modify that provision by
introducing an operations period as set by BOEM (if the grant is issued
competitively) or negotiated by the parties (if the grant is issued
noncompetitively). The duration of the operations period will depend on
the intended use of the grant. BOEM also proposes to allow extensions
of a ROW grant or RUE grant operations period if the requested
extension can be justified for ``good cause'' as determined by BOEM.
Obtaining ROW Grants and RUE Grants
Sec. 585.305 How do I request a ROW grant or RUE grant?
BOEM proposes to eliminate the paper copy requirement, consistent
with its proposed changes to Sec. 585.110.
Sec. 585.306 What action will BOEM take on my request?
Proposed Sec. 585.306 would add the two provisions to paragraph
(b) from the existing Sec. 585.309 and would remove the existing Sec.
585.309. This consolidation would simplify and clarify this subpart.
The remaining proposed changes are editorial in nature.
Sec. 585.309 When will BOEM issue a noncompetitive ROW grant or RUE
grant?
This section would be removed by the proposed rule as redundant
(see analysis of Sec. 585.306).
Sec. 585.310 What is the effective date of a ROW grant or RUE grant?
This section would be re-numbered in the proposed rule as Sec.
585.309. The substance of this section would remain unchanged.
Sec. 585.316 What payments are required for ROW grants or RUE grants?
BOEM proposes a technical correction to reflect that ONRR is the
appropriate payee.
E. 30 CFR Part 585, Subpart E--Lease and Grant Administration
Subpart D, Lease and Grant Administration, is being redesignated as
subpart E to accommodate the addition of a new subpart B, as noted in
section VI.B above.
Noncompliance and Cessation Orders
Sec. 585.400 What happens if I fail to comply with this part?
BOEM proposes to amend this section to ensure that its civil
penalty authority for OCS renewable energy activities addresses a more
complete range of violations and is coextensive with the authority that
Congress granted it in the OCS Lands Act. Section 24 of the OCS Lands
Act authorizes the Secretary to assess civil penalties for failure to
remedy the violation of a regulation, lease, or permit condition, as
well as for a violation that threatens ``serious, irreparable, or
immediate harm or damage to life (including fish and other aquatic
life), property . . . or the marine, coastal, or human environment.''
\86\
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\86\ 43 U.S.C. 1350(b).
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Section 585.400(f) currently states that BOEM may assess civil
penalties ``as authorized by section 24 of the OCS Lands Act, if you
fail to comply with any provision of this part or any term of a lease,
grant, or order issued under the authority of this part, after notice
of such failure and expiration of any reasonable period allowed for
corrective action.'' This section also states that ``[c]ivil penalties
will be determined and assessed in accordance with the procedures set
forth in 30 CFR part 550, subpart N.'' Located in BOEM's OCS minerals
regulations, subpart N permits BOEM to assess civil penalties on
``[v]iolations that you do not correct within the period BOEM grants''
and ``[v]iolations of the oil spill financial responsibility
requirements at 30 CFR part 553.'' \87\
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\87\ 30 CFR 550.1404.
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BOEM's existing renewable energy regulations do not explicitly
authorize assessment of civil penalties for the full range of
violations envisioned under the OCS Lands Act, such as those for which
notice of the violation and an opportunity to correct is not required.
BSEE's OCS oil, gas, and sulfur regulations, on the other hand, allow
immediate civil penalties for violations that ``constitute, or
constituted, a threat of serious, irreparable, or immediate harm or
damage to life . . ., property, any mineral deposit, or the marine,
coastal, or human environment'' or that ``cause serious, irreparable,
or immediate harm'' to the same.\88\ BOEM is proposing to add a new
paragraph (f)(2) to cover these situations and to allow BOEM to take
appropriate action by assessing civil penalties in the event that a
lessee or operator commits such failures.
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\88\ 30 CFR 250.1404(b)-(c).
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Designation of Operator
Sec. 585.405 How do I designate an operator?
BOEM proposes technical edits to this section to maintain
consistency with proposed changes in the organization of Sec. Sec.
585.626 and 585.645.
[[Page 6000]]
Lease or Grant Assignment, Segregation, and Consolidation
Sec. 585.408 May I assign my lease or grant interest?
BOEM proposes to eliminate specific elements of the regulatory
requirements for an assignment application in paragraph (b) that are
already provided in the form that is currently on the BOEM website for
leases (Form BOEM-0003) and grants (Form BOEM-0002). BOEM proposes to
retain the paper copy requirement for assignment applications. The
proposed rule would also clarify that paragraph (e) refers to business
mergers and not to lease consolidations that are discussed in proposed
Sec. 585.413.
Lease or Grant Assignment
The proposed rule would add a new section 585.410 to explain when
an assignment would result in a segregated lease. Sections 585.410 and
585.411 would be renumbered to Sec. Sec. 585.411 and 585.412,
respectively.
Sec. 585.410 When will my assignment result in a segregated lease?
BOEM's existing regulations authorize approval of requests to
segregate its leases into multiple smaller leases under Sec.
585.408(a), which allows lessees to ``assign all or part of your lease
or grant interest . . . subject to BOEM approval under this subpart.''
BOEM previously has approved lease segregation and anticipates
receiving more requests as some lessees may decide to develop their
leases in a phased fashion. Accordingly, BOEM proposes to clarify the
process for segregating leases by adopting language from the lease
segregation provision in its OCS mineral resources regulations at 30
CFR 556.702.
Sec. 585.411 How does an assignment affect the assignor's liability?
This section is re-numbered to reflect addition of the proposed
Sec. 585.410 regarding lease segregation.
Sec. 585.412 How does an assignment affect the assignee's liability?
This section is re-numbered to reflect addition of the proposed
Sec. 585.410 regarding lease segregation. The proposed rule would
correct the extent of an assignee's regulatory liability by replacing
``subchapter'' with ``part'' in the first sentence of paragraph (b).
Sec. 585.413 How do I consolidate leases or grants?
BOEM proposes to add procedures for consolidating two or more
adjacent leases or grants. BOEM currently has the authority to approve
lease consolidations by mutual agreement under the terms of its
existing leases (and has already done so once), but no regulatory
provision directly addresses such requests. Proposed Sec. 585.413
would codify BOEM's existing practices in the regulations by
establishing a procedure for requesting and approving consolidations of
leases and grants. BOEM notes that adjacent leases or grants may have
different terms and be at differing stages of development.
BOEM proposes to harmonize such differences as explained below. If
the time remaining in the relevant lease periods differs between the
leases or grants to be consolidated, BOEM will default to the shorter
remaining periods in the new lease or grant. The lessee or grant holder
may request an extension pursuant to the proposed Sec. 585.235(b). If
other terms and conditions differ between the leases or grants to be
consolidated, BOEM will default to the most recently issued terms and
conditions contained in the leases or grants to be consolidated. The
lessee or grant holder may request modifications to such terms and
conditions. BOEM will consider and, in its discretion, approve such
requests on a case-by-case basis for good cause. BOEM also proposes to
assess the need to modify existing financial assurances before
approving a proposed consolidation and to terminate any lease or grant
that has been consolidated fully into a new lease.
Lease or Grant Suspension
Sec. 585.415 What is a lease or grant suspension?
BOEM proposes to change the word ``term'' to ``period'' in light of
its proposed changes to Sec. 585.235. This change would not alter the
substance of this section.
Sec. 585.416 How do I request a lease or grant suspension?
BOEM proposes several technical corrections and clarifications to
this section. First, BOEM has reorganized the contents of a suspension
application for clarity and added a catch-all category to provide BOEM
with additional flexibility. Second, BOEM proposes to add a new
paragraph (b) to be consistent with its proposed revisions to Sec.
585.235(b). Other proposed changes are for editorial clarity.
Sec. 585.417 When may BOEM order a suspension?
BOEM proposes to eliminate the paper copy requirement for this
regulation, consistent with its proposed changes to Sec. 585.110.
Sec. 585.420 What effect does a suspension order have on my payments?
BOEM proposes technical edits to this section to combine paragraphs
(b) and (c), and would modify the requirement that directed suspensions
would always be accompanied by a fee suspension. As a result, all
payment suspensions would be at the discretion of BOEM. BOEM also
proposes to clarify that regardless of whether a lease or grant
suspension is approved or ordered, BOEM has discretion to ``waive or
defer'' (rather than ``suspend'') payments while the lease or grant is
suspended. BOEM believes that more flexibility is needed than its
existing regulations provide regarding its treatment of such payments,
given the wide range of potential justifications for a suspension.
Lease or Grant Renewal
Sec. 585.425 May I obtain a renewal of my lease or grant before it
terminates?
BOEM proposes a technical change to conform to its proposed changes
to Sec. 585.235 by changing the word ``term'' to ``period'' wherever
it appears.
Sec. 585.426 When must I submit my request for renewal?
BOEM proposes a technical change to conform to its proposed changes
to Sec. 585.235 by changing the word ``term'' to ``period'' wherever
it appears.
Sec. 585.427 How long is a renewal?
BOEM proposes technical changes to conform to its proposed changes
to Sec. 585.235 by changing the word ``term'' to ``period'' wherever
it appears.
Sec. 585.429 What criteria will BOEM consider in deciding whether to
renew a lease or grant?
BOEM proposes adding a catch-all provision to the list of criteria
in this section that it will use in determining whether to renew a
lease or grant. BOEM's discretion to consider relevant factors that may
not be enumerated is particularly important, given the difficulty of
foreseeing what issues may arise in the future when BOEM begins to
receive lease renewal requests.
Lease or Grant Termination
Sec. 585.432 When does my lease or grant terminate?
BOEM proposes technical changes to conform to its proposed changes
to Sec. 585.235 by changing the word ``term'' to ``period'' wherever
it appears.
[[Page 6001]]
Lease or Grant Relinquishment, Contraction, or Cancellation
BOEM proposes to consolidate the three undesignated subheaders in
the existing regulations into one, for clarity and efficiency. The
existing separate undesignated subheaders denote lease or grant
relinquishment, lease or grant contraction, and lease or grant
cancellation.
Sec. 585.435 How can I relinquish a lease or a grant or parts of a
lease or grant?
The proposed rule would make a lease or grant relinquishment
effective on the date BOEM receives a properly completed relinquishment
form. Under the existing Sec. 585.435(a), a lease or grant
relinquishment is effective on the date BOEM approves a relinquishment
application. This change would conform with BOEM's approach to mineral
resource lease relinquishments in 30 CFR 556.1101, under which a
relinquishment takes effect as soon as the lessee or grant holder files
the necessary information with BOEM in a form available on BOEM's
website. Relinquishment would no longer require BOEM approval. As in
the existing regulations, relinquishment of a lease or grant would have
no impact on a lessee's or grant holder's obligations accrued under
those instruments before relinquishment. After BOEM receives the
properly completed relinquishment form, ONRR will bill the lessee or
grant holder the amount due on any outstanding obligations that accrued
under the relinquished lease or grant.
Sec. 585.438 What happens to leases or grants (or portions thereof)
that have been relinquished, contracted, or cancelled?
The existing regulations do not provide a process by which BOEM can
reissue a lease or grant for an area (or portions thereof) previously
covered by a lease or grant that has been relinquished under Sec.
585.435, contracted under Sec. 585.436, or cancelled under Sec.
585.437. Proposed Sec. 585.438 would allow BOEM to restart the
competitive leasing process at any point it deems reasonable after a
lease or grant (or portion thereof) is relinquished, contracted, or
cancelled. In such situations under the proposed rule, BOEM would be
obligated to engage in additional environmental analysis and
consultation, if necessary, due to elapsed time or changed conditions.
The proposed rule also would allow BOEM to reoffer the lease or grant
to the next best bidder if a competitively issued lease or grant (or
portion thereof) is relinquished or cancelled within 6 months of the
auction. BOEM believes that within 6 months, the next best bid may
still be deemed sufficient to constitute fair return under 43 U.S.C.
1337(p)(2)(A).
F. 30 CFR Part 585, Subpart F--Payments and Financial Assurance
Requirements
Subpart E, Payments and Financial Assurance Requirements, is being
redesignated as subpart F to accommodate the addition of a new subpart
B, as noted in section VI.B above.
Payments
Sec. 585.500 How do I make payments under this part?
The proposed rule would replace the due date in paragraph (c)(1)
for the bonus balance payment on a competitively issued lease from
``[l]ease issuance'' to ``[w]ithin 10-business days of receiving the
unsigned lease'' and would add the section reference. The proposed rule
also would replace the word ``issuance'' with ``execution'' in the
``Due date'' column of (c)(3) and (c)(8). These changes would provide
clarity and would give a lessee or a grant holder more time to make the
required payments. The proposed rule also would substitute the word
``period'' for ``term'' in paragraphs (a) and (c) to ensure consistency
with proposed changes to Sec. 585.235. The proposed rule also would
replace the annual ROW rent of $70 per mile with an annual rent of $5
per acre as determined by proposed Sec. 585.301(a). This change would
provide BOEM consistency in pricing OCS usage for RUEs and ROWs. See
further discussion below in the section-by-section analysis of Sec.
585.508. Finally, the proposed rule would eliminate the word
``statute'' in the phrase ``statute mile'' in the ``Amount'' column of
(c)(8) because ``miles'' is defined as nautical miles in Sec. 585.112.
Sec. 585.501 What deposits must I submit for a competitively issued
lease, ROW grant, or RUE grant?
Existing Sec. 585.501 describes the deposit a bidder must submit
to participate in specific types of auctions for a lease, RUE, or ROW.
Proposed Sec. 585.501 would eliminate provisions specifying deposits
by auction type and would provide BOEM with discretion to establish bid
deposit requirements in the FSN. This proposal would ensure consistency
with proposed Sec. 585.220.
Sec. 585.503 What are the rent and operating fee requirements for a
commercial lease?
Proposed Sec. 585.503 would revise the payment due date for the
first 12 months' rent on a commercial lease. The winning bidder would
have to pay the rent no later than 45-calendar days after receiving a
copy of the executed lease from BOEM. The existing regulations state
that the rent payment is due no later than 45-calendar days after BOEM
sends the unsigned copies of the lease to the provisional winner. This
proposed section effectively would give lessees slightly more time to
pay the first 12 months' rent.
BOEM also proposes several technical corrections to conform to the
definition of ``commercial operations'' in Sec. 585.112 and BOEM's
proposed changes to Sec. 585.235 as well as to provide more
specificity regarding the regulations that govern payments to ONRR.
Sec. 585.504 How are my payments affected if I develop my lease in
phases?
BOEM proposes a technical change to provide a more specific
citation to the regulations that govern payments to ONRR.
Sec. 585.505 What are the rent and operating fee requirements for a
limited lease?
BOEM proposes technical changes to provide a more specific citation
to the regulations that govern payments to ONRR and to conform to the
proposed nomenclature change from ``term'' to ``period'' in Sec.
585.235.
Sec. 585.506 What operating fees must I pay on a commercial lease?
BOEM proposes to amend the introductory paragraph to clarify that
operating fees are triggered at the start of commercial operations as
defined in Sec. 585.112, rather than at the start of energy
generation. Under the current regulations, generation of electricity
during testing would be subject to operating fees. This rule would
exempt electricity generated for testing purposed from operating fees.
BOEM typically does not consider energy generated during testing
periods, prior to final project verification under Sec. 585.708(a)(5),
to constitute commercial operations. BOEM also proposes technical
changes to provide a more specific citation to the regulations that
govern payments to ONRR; to conform to the definition of ``commercial
operations'' in Sec. 585.112; to identify ONRR as the correct payee
for operating fees; and to define ``DOE.''
[[Page 6002]]
Sec. 585.507 What rent payments must I pay on a project easement?
BOEM proposes technical changes to provide a more specific citation
to the regulations that govern payments to ONRR and to conform to
proposed changes to Sec. Sec. 585.235 and 585.628(g).
Sec. 585.508 What rent payments must I pay on ROW grants or RUE grants
associated with renewable energy projects?
BOEM proposes technical changes to provide a more specific citation
to the regulations that govern payments to ONRR; to remove the word
``nautical'' as redundant given the definition of ``miles'' in Sec.
585.112; and to make minor editorial adjustments that enhance
readability. BOEM also proposes to simplify ROW rental payments to
reflect that, under the proposed rule, ROW corridors would have
sufficient width to accommodate all planned grant activities. BOEM
believes that most grant holders would prefer an initially wider
corridor that would encompass all areas of actual seabed disturbance,
rather than the existing regulations limiting corridors to a 200-foot
width with a subsequent determination of the ``affected area'' outside
that corridor. Grant holders would be able to relinquish unused
portions of the right-of-way corridor after construction, as set forth
in proposed Sec. 585.301, and would be relieved of their obligation to
pay rent subsequently for those relinquished areas.
To promote consistency in BOEM's valuation of OCS rental pricing
across RUEs and ROWs, the proposed rule also would replace the annual
ROW rent of $70 per mile with an annual rent of $5 per acre as
determined by the proposed Sec. 585.301(a). This change would
streamline BOEM's existing rental fee calculations and ensure
consistent valuation of all OCS acreage for grants. Under existing
regulations, a ROW grant holder pays an annual rent of about $2.89 per
acre and a RUE grant holder, $5 per acre.\89\ BOEM has determined that
no compelling reason supports this differential between RUE and ROW
annual rental rates.
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\89\ An annual ROW rent of $2.89 per acre for a one-mile, 200-
foot-wide corridor is derived as follows: A 1-mile, 200-foot-wide
corridor has an area equivalent to 1,056,000 square feet or 24.24
acres (43,560 square feet per acre); $70 divided by 24.24 acres is
$2.89 per acre.
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Sec. 585.509 Who is responsible for submitting lease or grant payments
to ONRR?
The proposed rule makes a technical correction to the section
heading by replacing ``BOEM'' with ``ONRR'' as the correct payee.
Sec. 585.510 May BOEM defer, reduce, or waive my lease or grant
payments?
BOEM proposes to change the regulations to allow that BOEM may
grant requests for deferral of rental and operating fee payments, in
addition to reductions or waivers. BOEM seeks to avoid confusion by
explicitly including this authority in the proposed rule. BOEM also
proposes a technical change to conform to BOEM's proposed changes to
Sec. 585.235.
Sec. 585.515 What financial assurance must I provide when I obtain my
commercial lease?
This section is removed in the proposed rule as explained in the
analysis of Sec. 585.516.
Financial Assurance Requirements for Commercial Leases
Sec. 585.516 What are the financial assurance requirements for each
stage of my commercial lease?
The proposed rule would amend several key aspects of this section.
As discussed in section V.G.3(b) above, entitled ``Revision of Lease-
Specific Financial Assurance Amount,'' BOEM proposes to replace the
existing $100,000 lease-specific bond required before BOEM will execute
a commercial lease or approve an assignment of an existing commercial
lease with a bond or other authorized financial assurance in the amount
of 12 months' rent to ensure BOEM and the U.S. taxpayers are not under-
bonded during the preliminary term of a lease if annual rent exceeds
$100,000, which it often does. BOEM proposes to remove the existing
Sec. 585.515 as surplusage in light of this proposed change, as that
section relates to a ``flat-fee'' bond that would no longer be
required. Section 585.515 currently subjects the minimum base bond to
adjustment every 5 years based on changes to the Consumer Price Index--
All Urban Consumers, but such adjustment is no longer necessary if the
initial bond is tied to the annual rent for the lease. Under the
proposed rule, Sec. 585.515 would be reserved.
Second, BOEM proposes to amend the timing of the SAP
decommissioning bond in paragraph (a)(2) so that it is due before the
installation of SAP facilities, rather than at the time of SAP
approval. This change is proposed in recognition of the fact that
liability for SAP facilities does not accrue until installation.
Third, BOEM proposes to eliminate the bond or other financial
assurance that is presently due before COP approval, for the reasons
set forth in section V.G.3(a) above, entitled ``Elimination of COP
Approval Financial Assurance Requirement.''
Fourth, BOEM proposes several revisions to the decommissioning
financial assurance requirement. Most importantly, the proposed rule
would establish that a lessee may propose--and BOEM may approve or
disapprove--incremental funding of a financial assurance instrument
that satisfies this requirement. This proposal would allow BOEM to
approve the incremental provision of financial assurance during the
operation of the facility for the reasons set forth in section V.G.3(d)
above, entitled ``Staged Funding of Decommissioning Accounts.'' The
proposed rule would provide more flexibility than BOEM's existing
regulatory authority, which allows decommissioning financial assurance
to be provided ``in accordance with the number of facilities installed
or being installed.'' \90\
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\90\ 30 CFR 585.516(a)(4).
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The remaining proposed changes to this section are intended for
clarification and organizational purposes. For instance, BOEM proposes
to adopt the term ``supplemental'' to describe all financial assurance
for obligations other than the first 12 months' rent. BOEM also would
remove language in paragraph (b) regarding a lessee's ability to
increase its financial assurance. The text is redundant of Sec.
585.517 requirements that a lessee must provide financial assurance to
cover all lease obligations and that BOEM may require additional
financial assurance at any time during the lease after providing a
lessee notice and an opportunity to be heard. BOEM also proposes to
change the timing for providing supplemental financial assurance for
marine hydrokinetic projects in paragraph (c) in recognition that
obtaining a Federal Energy Regulatory Commission (FERC) license, like
the approval of a COP, may not itself result in the accrual of
obligations. The additional flexibility regarding the timing of
financial assurance will assist BOEM in coordinating with FERC.
Sec. 585.517 How will BOEM determine the amounts of the supplemental
financial assurance requirements associated with commercial leases?
This section describes BOEM's general requirements for assessing
supplemental financial assurance. BOEM proposes several technical
revisions to streamline the processes set forth in this section and to
maintain consistency with other proposed changes. First, the proposed
rule would
[[Page 6003]]
simplify terminology by renaming as ``supplemental financial
assurance'' every type of financial assurance required after the
initial financial assurance is provided. BOEM also proposes to combine
paragraphs (a) and (b). Under the new paragraph (a), BOEM proposes to
clarify that the obligation to maintain supplemental financial
assurance for 12 months of rent applies only to the extent the rent is
not covered in the initial financial assurance provided under Sec.
585.516(a)(1). This language would ensure that BOEM does not require a
lessee to provide more financial assurance than necessary to secure the
rent obligation. Additionally, BOEM proposes to eliminate most of the
existing paragraph (c)(2) as duplicative of the proposed paragraph (a);
BOEM would simply cross-reference to the list of obligations that must
be bonded in proposed paragraph (a).
Sec. 585.520 What financial assurance must I provide when I obtain my
limited lease, ROW grant, or RUE grant?
BOEM proposes to adopt an approach to calculate the initial
financial assurance for limited leases, ROWs, and RUEs that is
analogous to the proposed approach for commercial leases in Sec.
585.516. Instead of the existing fixed dollar amount ($300,000), the
proposed rule would require financial assurance in an amount equal to
12 months' rent before BOEM will execute the limited lease, ROW, or
RUE. The rationale for this proposed change is that unpaid rental
payments are the only liability that a limited lessee \91\ or grant
holder accrues at that stage of development. As with the proposed
elimination of Sec. 585.515, inflationary (or deflationary)
adjustments would be obsolete if the minimum bond is based only on
rental obligations. BOEM believes this rule change will decrease the
initial cost burden on limited lessees and grant holders in most
instances because 12 months of rent for these areas is likely to be
less than $300,000. At all times, financial assurance would still be
required to be sufficient to cover a limited lessee's obligations
pursuant to Sec. 585.521.
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\91\ Throughout section VI, the term ``limited lessee'' means a
holder of a limited lease.
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Sec. 585.521 Do my financial assurance requirements change as
activities progress on my limited lease or grant?
BOEM proposes revisions to better align limited lease and grant
financial assurance requirements with those proposed for a commercial
lease. Proposed language in paragraph (a) clarifies that BOEM may
increase or decrease the amount of a limited lessee's or a grant
holder's financial assurance depending on the estimated costs to meet
its accrued obligations. The proposed rule would clarify that the
amount of financial assurance provided must be no less than the amount
required to meet a limited lessee's or a grant holder's obligations.
Additionally, BOEM would revise this section to clarify that payments
are due to the ``United States'' rather than the ``Government.'' This
section includes new language providing for notice and opportunity to
object if BOEM proposes to adjust the financial assurance requirements
on a limited lease or grant. The proposed rule would allow a limited
lessee or a grant holder to request reduction of its financial
assurance requirement if the amount assured continues to be greater
than the sum of the accrued obligations. Under the proposed rule, BOEM
would have sole discretion to approve such a request. BOEM proposes to
substitute ``supplemental financial assurance'' for ``decommissioning
bond'' consistent with the proposed terminology changes discussed in
the Sec. 585.516 analysis. Finally, the proposed rule would add a
provision to the effect that a limited lessee or a grant holder may
fund its financial assurance incrementally. In its discretion, BOEM
would approve or disapprove such a request and the schedule for
providing the financial assurance. The added provision for incremental
funding of the financial assurance is intended to reduce the costs
associated with building and developing the lease or grant in
situations where the amount of financial assurance provided would be
delayed until it became necessary.
BOEM would require financial assurance prior to the net present
value of the project turning negative when factoring in decommissioning
costs. This calculation would change based upon actual operating
efficiency of the project (both at start-up and throughout its
lifecycle) and realized prices obtained through the PPA based upon the
local market. BOEM would require an annual re-evaluation of the
financial condition of the project and would adjust the timing of
required financial assurance accordingly.
Requirements for Financial Assurance Instruments
Sec. 585.526 What instruments other than a surety bond may I use to
meet the financial assurance requirement?
BOEM proposes to revise this section to clarify that a lessee and a
grant holder have choices in proposing alternative instruments to
satisfy their financial assurance obligations. As discussed in section
V.G.3(c) above, entitled ``Additional Authorized Financial Assurance
Instruments,'' BOEM reads the existing section as allowing a lessee and
a grant holder to propose financial assurance instruments that are not
specifically enumerated in the regulations. The proposed rule would
explicitly authorize BOEM to approve non-listed instruments or
combinations of instruments. Responding to recent requests by several
lessees, the proposed rule specifically would identify letters of
credit as acceptable financial assurance instruments but would
condition their use. The proposed conditions for letters of credit
would include a minimum credit rating, a minimum term of 1 year,
automatic renewal in the absence of a notice of cancellation to BOEM,
and a venue provision requiring adjudication of any dispute in U.S.
district court. These conditions would ensure that letters of credit
provide protection to the U.S. taxpayer to the same extent as a surety
bond. Additionally, the proposed rule would remove the provision in
paragraph (a)(2) stating that cash financial assurance is to be
deposited and maintained in the U.S. Treasury by BOEM.
Sec. 585.528 May I use a third-party guaranty to meet the financial
assurance requirement for lease or grant activities?
The proposed rule would grant BOEM the authority to allow a third-
party guarantor to cap its liability on a guaranty provided to meet
lessee and grant holder financial assurance obligations. As discussed
in section V.G.3(c) above, entitled ``Additional Authorized Financial
Assurance Instruments,'' BOEM's existing regulations require a third-
party guaranty to cover all obligations. BOEM believes that lessees and
grant holders would benefit if a third-party guarantor could cap its
liability. BOEM proposes to allow this increased flexibility by adding
language in paragraph (a) stating that a third-party guaranty may be
``in an amount determined by BOEM'' and by stating in paragraph (c)(5)
that a guarantor must either take corrective action or provide, within
7-calendar days or other agreed upon time period, sufficient funds ``up
to the value of the guaranty'' to enable BOEM to remedy the violation.
BOEM also proposes to clarify that a guarantor must satisfy only the
legal and financial aspects of Sec. Sec. 585.106 and 585.107; because
a guarantor only provides financial assurance, it does not need to be
technically qualified. Additionally,
[[Page 6004]]
BOEM proposes a technical correction to remove the term ``operating
rights owner,'' a legal status that exists in the offshore oil and gas
regulatory framework but not in the legal framework for OCS renewable
energy.
Sec. 585.529 Can I use a lease- or grant-specific decommissioning
account to meet the financial assurance requirements related to
decommissioning?
As discussed further in section V.G.3(d) above, entitled ``Staged
Funding of Decommissioning Accounts,'' BOEM proposes to allow a lessee
or grant holder to fund a decommissioning account in stages over the
term of a lease or grant. This authority would be set forth in a
revised paragraph (a)(2) stating that a lessee or grant holder ``must
fund the account in the amount determined by and according to the
funding schedule approved by BOEM'' and in a new paragraph (a)(3)
stating that a decommissioning account ``may be funded in whole or in
part during the operations period of a lease or grant.'' A proposed
funding schedule would be subject to BOEM's approval (and potential
modification) after BOEM conducts the appropriate risk analysis.
Changes in Financial Assurance
Sec. 585.532 What happens if my surety wants to terminate the period
of liability of my financial assurance?
In the section heading and paragraph (a), BOEM proposes to
substitute the term ``financial assurance'' for ``bond'' because
financial assurance is inclusive of all types of security--including,
but not limited to, surety bonds--that BOEM allows under this subpart.
To be responsive to the question posed in the section heading, BOEM
also proposes to remove ``a'' and add ``your'' before ``financial
assurance'' in paragraph (a).
BOEM also proposes to revise paragraph (b) by introducing a time
constraint for when your surety must submit to BOEM its request to
terminate the period of liability under its financial assurance and
notify you of that request. The time constraint proposed in this rule
is no less than 90 days before the proposed termination date. BOEM
requests comment on whether the 90-day time frame is appropriate. BOEM
also proposes to remove the clause ``or have not met all obligations of
your lease or grant,'' and to add the words ``on your lease or grant''
to recognize that the surety continues to be responsible for
obligations and liabilities that accrued during the period of liability
and before the date on which BOEM terminated the period of liability.
Therefore, the lessee or grant holder must provide replacement
financial assurance only if it intends to continue activities on its
lease or grant.
Sec. 585.533 How does my surety obtain cancellation of my financial
assurance?
BOEM proposes to substitute the term ``financial assurance'' for
``bond'' in the section heading for the reasons set forth in the
analysis of Sec. 585.532 and to use ``cancel'' throughout this section
to avoid confusion arising from the use of ``release.'' In addition,
BOEM proposes to revise this section by replacing the ``only if''
conditional at the end of the existing paragraph (a), which limits the
cancellation of a financial assurance whose period of liability has
terminated to two situations, with a timing clause stating when
cancellation would occur and by adding two additional situations when
cancellation would be appropriate. The first added situation would
cover the circumstance when the period of liability is terminated for
financial assurance, but the provider of replacement financial
assurance does not agree to assume the liabilities of the terminated
period of liability. In such a situation, the proposed rule would
provide that the financial assurance would be cancelled 7 years after
the termination of the period of liability. The second situation would
cover the circumstance when the financial assurance obligations are the
subject of an appeal or judicial litigation. In such a situation, the
proposed rule would provide that the financial assurance would be
cancelled upon completion of the appeals process or judicial
litigation.
BOEM also proposes to streamline this section by removing
surplusage in the existing paragraph (b) that is redundant with the
requirements and procedures set forth in proposed Sec. 585.534.
Sec. 585.534 When may BOEM cancel my financial assurance?
BOEM proposes significant organizational and substantive revisions
to this section. First, BOEM proposes to substitute ``financial
assurance'' for ``bond'' and ``pledged security'' for the reasons set
forth in the analysis of Sec. 585.532 and to use ``cancel'' throughout
this section to avoid confusion arising from the use of ``release.''
Second, the proposed rule would amend the first column of the chart
(which would be part of a new paragraph (a)) to collapse the
distinction between different types of financial assurance for
commercial leases, supplemental or decommissioning obligations, limited
leases, and grants. BOEM has concluded that the cancellation of
financial assurance for different types of leases and grants should be
subject to the same regulatory requirements.
Third, the proposed rule would remove the existing second column of
the chart referring to the ``period of liability'' associated with
BOEM's financial assurance cancellation; this column is unnecessary
because the final column contains all needed information regarding when
BOEM may cancel lessees' and grant holders' financial assurance.
Termination of the period of liability is addressed adequately in Sec.
585.532.
Fourth, BOEM would revise the first sentence of the third column in
the existing paragraph (a) to provide that financial assurance will not
be cancelled until 7 years after all operations and activities under
the lease or grant cease, including decommissioning and site clearance,
or a longer period as necessary to complete any appeals or judicial
litigation related to a surety's financial assurance obligation. This
change recognizes the statutes of limitations on claims after all
operations and activities cease under the lease or grant, including
decommissioning and site clearance. BOEM also proposes to introduce
more flexibility to cancel financial assurance under certain
circumstances not covered under existing regulations. For example, the
proposed rule would give BOEM additional flexibility to cancel
financial assurance before the termination of a lease or grant when the
assurance is no longer needed, the operations for which the
supplemental financial assurance was provided ceased prior to accrual
of any decommissioning obligation, or BOEM determines that the
assurance was erroneously assessed. BOEM proposes this change in
response to requests from lessees to depart from BOEM's existing
requirement that lessees hold financial assurance for 7 years after a
lease ends. BOEM believes the proposed language would provide needed
flexibility to release a lessee's or a grant holder's financial
assurance whenever BOEM determines that it is no longer needed.
Finally, BOEM proposes to further protect the U.S. taxpayer against
certain risks by adapting language from the equivalent oil and gas
regulations at 30 CFR 556.906(e). The proposed rule would allow BOEM to
require reinstatement of a financial assurance instrument as if no
cancellation occurred if an obligor's payment under a lease or grant is
rescinded due to insolvency or bankruptcy, or if the
[[Page 6005]]
responsible party represents to BOEM that it has discharged its
obligations under the lease or grant, and the representation was
materially false when the bond was cancelled.
Sec. 585.535 Why might BOEM call for forfeiture of my financial
assurance?
For the reasons set forth in the section-by-section analysis of
Sec. 585.532 above, BOEM proposes a technical correction to substitute
the phrase ``financial assurance'' for the word ``bond.''
Revenue Sharing With States
Sec. 585.541 What is a qualified project for revenue sharing purposes?
BOEM proposes a technical correction to remove the word
``nautical'' as redundant given the definition of ``miles'' in Sec.
585.112.
Sec. 585.542 What makes a State eligible for payment of revenues?
BOEM proposes a technical correction to remove the word
``nautical'' as redundant given the definition of ``miles'' in Sec.
585.112.
G. 30 CFR Part 585, Subpart G--Plans and Information Requirements
Subpart F, Plans and Information Requirements, is being
redesignated as subpart G to accommodate the addition of a new subpart
B, as noted in section VI.B above.
Sec. 585.600 What plans and information must I submit to BOEM before I
conduct activities on my lease or grant?
The existing regulations require lessees to submit a SAP for BOEM
approval before conducting any site assessment activities on their
commercial leases. Under proposed Sec. 585.600(a)(1), SAPs would be
required only for site assessment activities involving an engineered
foundation. This change is intended to exempt floating site assessment
facilities, such as met buoys, from the SAP requirement, and is being
proposed for the reasons set forth in section V.A. above, entitled
``Site Assessment Facilities.'' Changes to these regulatory provisions
would not affect the applicability of other agencies' statutory and
regulatory requirements. The term ``engineered foundation'' would be
defined in this section to include met towers or other structures that
are installed using a fixed-bottom foundation requiring professional
engineering design and assessment of sediment, meteorological, and
oceanographic condition.\92\ A lessee planning to install an industry-
standard met buoy using a gravity anchor for site assessment would not
require a SAP. If a lessee is uncertain whether its proposed site
assessment facility had an engineered foundation that would trigger SAP
requirements, it would be encouraged to consult with BOEM at the
earliest opportunity. BOEM seeks public comment on whether the
definition of ``engineered foundation'' is appropriate (and, if not,
what that definition should be) or whether a different term should be
used to determine whether a facility requires a SAP.
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\92\ See supra note 28 for additional discussion of engineered
foundations.
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BOEM also proposes to add language that would allow it the
discretion to waive certain information or analysis requirements in a
proposed plan if the applicant can demonstrate that, among other
things, the information or analysis is known to BOEM, the relevant
resource is not present or affected, or the information is not needed
or required by a State's coastal management program. The language in
this provision is modeled on BOEM's oil and gas regulations at 30 CFR
550.201(c) and would grant BOEM more flexibility to tailor its plan
requirements to unique elements of a specific proposal without needing
to issue regulatory departures under Sec. 585.103.
Sec. 585.601 When must I submit my plans to BOEM?
The existing regulation requires submittal of any SAPs either
before or within 12 months after the date of lease or grant issuance.
BOEM sees no persuasive reason for this requirement and removing it
could give useful flexibility to lessees and grant holders without any
notable downside. Some lessees have chosen to file a COP prior to a
SAP, and there may be other instances where additional data collection
methods that would require a SAP are undertaken after the filing of the
COP. Additionally, BOEM expects that the requirement would have little
application if SAPs are no longer required for met buoys as proposed,
because nearly all SAPs submitted to date have been for met buoys.
BOEM, therefore, proposes to allow a lessee or grant holder to submit a
SAP anytime during the life of its lease or grant, but would continue
to require a lessee or grant holder to submit a SAP before conducting
any activities that require a SAP.
BOEM also proposes revising the timing for COP submittal to be
consistent with proposed changes to the lease periods in Sec. 585.235.
Under the proposed rule, a COP is due within 5 years of the lease
effective date. BOEM proposes to clarify that the 12-month period for
GAP submittal starts at the effective date of the limited lease or
grant consistent with the existing Sec. 585.236 and the proposed Sec.
585.303(a). The remaining proposed changes to this section are edits
for clarity.
Sec. 585.602 What records must I maintain?
The proposed rule would expand the recordkeeping requirements,
which currently only refer to data and information related to plan
compliance. Under the proposed rule, lessees and grant holders would
also be required to retain records relating to lease or grant
compliance, including SMS requirement. This change is proposed to
ensure a fuller compliance record is available to monitor trends and to
ensure safety and SMS effectiveness.
Site Assessment Plan and Information Requirements for Commercial Leases
Sec. 585.605 What is a Site Assessment Plan (SAP)?
BOEM proposes revising Sec. 585.605(a) to be consistent with its
proposed changes to Sec. 585.600(a)(1) and to delete text that it
views as duplicative of the requirements set forth in proposed
Sec. Sec. 585.606 through 585.613 (describing the SAP submittal and
review process). BOEM's proposed changes to the renumbered paragraphs
(b) and (c) are editorial in nature and intended to clarify the
existing text.
Sec. 585.606 What must I demonstrate in my SAP?
BOEM proposes to delete the requirement that a lessee demonstrate
that its site assessment activities will collect the necessary
information and data required for a COP as covered in Sec. 585.626.
BOEM has determined that this requirement is unnecessary because it is
not BOEM's responsibility to ascertain at this stage if site assessment
data will be sufficient to meet the needs of the COP review; rather,
BOEM intends to focus its review on the potential environmental impacts
of the site assessment facility itself. Other edits in this section are
technical corrections or are intended to further clarify the text.
Sec. 585.607 How do I submit my SAP?
BOEM proposes to eliminate the paper copy requirement, consistent
with its proposed changes to Sec. 585.110.
[[Page 6006]]
Contents of the Site Assessment Plan
Sec. 585.610 What must I include in my SAP?
BOEM proposes to clarify and streamline the data requirements for
SAP submission. Most of these proposed changes are driven by proposed
changes to the COP requirements (as discussed in section V.C. above,
entitled ``Geophysical and Geotechnical Surveys''); BOEM proposes
making similar changes across the corresponding SAP and GAP regulations
for purposes of consistency. A more detailed description of the
rationale for these proposed revisions can be found in section V.C. and
the analysis of proposed Sec. 585.626.
First, the proposed rule would add language in paragraph (a)
intended to clarify that a lessee may use a PDE in its SAP (see section
V.B). The introductory language in proposed paragraph (a) \93\ would
clarify that project specific information may be provided as a range of
parameters. While BOEM is not specifying in this proposed rule what
that range should be, BOEM's requirement cannot be met without
providing both a minimum and a maximum value. For example, a lessee
would not satisfy this requirement by saying, for example, that at
least 200 turbines would be installed. For example, a lessee could
propose two types of met tower foundations in its SAP, but would need
to describe which foundation type is expected to have the greatest
impact on each affected resource. Paragraph (a)(5) would include
language clarifying that a lessee can propose a range of potential
locations for its site assessment facility as well as an indicative
layout (i.e., a less detailed design) as an alternative to a location
plat. Paragraph (a)(6) would clarify that only preliminary design
information is required. Such drawings would be submitted with the FDR
under Sec. 585.701 if the project is deemed complex and significant
under Sec. 585.613(a).
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\93\ For clarity, BOEM proposes standardizing the presentation
of the required content for a SAP, COP, and GAP so that paragraph
(a) outlines the general informational requirements and paragraph
(b) outlines the survey and investigations data requirements. The
equivalent COP and GAP sections would be re-arranged under the
proposed rule consistent with this approach.
---------------------------------------------------------------------------
Second, BOEM proposes to eliminate the existing requirement in
paragraph (a)(9) that a CVA nomination (if necessary under Sec.
585.613(a)) be included with the SAP; instead, a lessee would be able
to nominate a CVA before or after SAP submittal under proposed Sec.
585.706. As described further in section V.D.3(a) above, entitled
``Certified Verification Agent Roles and Flexibility,'' the intent of
delinking the CVA nomination from the SAP, COP, or GAP is to allow a
lessee or grant holder to obtain the benefits of CVA review at the
earliest feasible opportunity. In lieu of a CVA nomination, a lessee
would need only to describe its project verification strategy for
proposed activities that would require a SAP. For a SAP, this would
include an analysis of whether a lessee believes the project should be
considered complex or significant, thereby triggering the design,
fabrication, and installation requirements in proposed subpart H. Under
the proposed rule, in the event that a lessee or a grant holder under
proposed Sec. 585.645(c)(4) recommends that its project be designated
complex or significant, the lessee or grant holder would include a
general description of its strategy for complying with the requirements
of the proposed subpart H.
Third, BOEM proposes clarifying and technical edits to several
other informational requirements in paragraph (a), including adopting
language from the existing COP informational requirements (Sec.
585.626) regarding decommissioning; documents incorporated by
reference; and lists of Federal, State, and local permits.
Fourth, the proposed rule would rewrite the SAP data requirements
in paragraph (b) to mirror its proposed changes to the COP and GAP
regulations. The reasons for these changes are described in more detail
in section V.C. above, entitled ``Geophysical and Geotechnical
Surveys,'' and in the description of proposed Sec. 585.626(b). Note
that the detail and thoroughness of these data requirements would be
commensurate with the scope and complexity of the proposed activities.
Under proposed Sec. 585.600(b), lessees could seek waivers of certain
data requirements by providing their rationale for why that data is
unnecessary.
Finally, BOEM proposes deleting the existing paragraph (c), which
concerns the simultaneous submittal of a SAP and either a COP or (for a
marine hydrokinetic project) FERC license application. BOEM believes
that paragraph (c) is unnecessary because such simultaneous submittals
still would be permitted under other provisions of this subpart in the
proposed rule and because much of this paragraph is repetitive of
proposed Sec. 585.601(b).
Sec. 585.611 What information and certifications must I submit with my
SAP to assist BOEM in complying with NEPA and other applicable laws?
BOEM proposes clarifications to the following informational
requirements in this section. These proposed clarifications are
consistent with BOEM's present expectations for SAP submittals and,
therefore, should not create additional burdens on lessees:
Water quality information would explicitly include impacts
from vessel discharges, as is already required under the Clean Water
Act.
Archaeological resources information would explicitly
include information on all types of historic properties, as is already
required under the NHPA.
Coastal and marine uses information would explicitly
include assessments of fisheries and navigational safety risk. Lessees
would be required to submit the latter assessment to the USCG.
Additionally, in the section heading and regulatory text, the more
appropriate phrase ``applicable laws'' would replace ``relevant laws.''
The remaining proposed changes to this section are edits for improved
organization, clarity, or consistency, including moving most of the
language from the existing paragraph (b) into a new paragraph (c).
Sec. 585.612 How will my SAP be processed for Federal consistency
under the Coastal Zone Management Act?
BOEM proposes to modify paragraph (a) to add that the submittal to
BOEM must conform with the requirements of Sec. 585.110. BOEM proposes
to clarify in paragraph (b) that lessees need to submit a consistency
certification for their SAPs under 15 CFR part 930, subpart E, only if
BOEM has not previously submitted a consistency determination to that
State under 15 CFR part 930, subpart C, that covered the proposed site
assessment activities, as opposed to always providing the submittal as
described in the current regulations. The existing regulations require
lessees to submit a consistency certification in all cases.
BOEM, in consultation with NOAA, finds that implementation of the
OCS renewable energy program thus far shows that there are three
potential CZMA Federal consistency reviews under BOEM's actions: (1)
when BOEM conducts a lease sale and awards a lease, ROW, or RUE and
provides a State or States with a CZMA consistency determination under
15 CFR part 930, subpart C; (2) when an applicant
[[Page 6007]]
submits a CZMA consistency certification to BOEM for a COP, if required
by 15 CFR part 930, subpart E; and (3) when the activity is located
outside a geographic location described in the State's coastal
management program pursuant to 15 CFR 930.52, and an applicant, on its
own accord, submits a consistency certification to a State or States
through BOEM under 15 CFR part 930, subpart E. For the lease sales held
so far, States have reviewed associated SAP or GAP activities through
the review of BOEM's consistency determination under 15 CFR part 930,
subpart C. BOEM and NOAA expect that this will continue and that it
should be the rare case where a separate CZMA consistency review is
required for a SAP or GAP.
Sec. 585.613 How will BOEM process my SAP?
BOEM proposes to harmonize the existing language in paragraph
(e)(2) with the equivalent provision in Sec. 585.628(f)(2) regarding
actions lessees may take in the event of COP disapproval. BOEM also
proposes to clarify that SAP resubmission must occur within a
reasonable time and proposes to make analogous changes to the
equivalent COP and GAP requirements in Sec. Sec. 585.628 and 585.648.
Activities Under an Approved SAP
Sec. 585.614 When may I begin conducting activities under my approved
SAP?
BOEM proposes a minor edit to paragraph (b) by adding the word
``description'' after Safety Management System to clarify that it is a
description of the Safety Management System that must be submitted, in
conformance with the requirements outlined in Sec. 585.810.
Sec. 585.617 What activities require a revision to my SAP, and when
will BOEM approve the revision?
The proposed changes include the addition of a new paragraph (b) to
clarify that revisions to a lessee's SAP may trigger a reassessment of
the significance and complexity of the proposed activities. The
proposed revisions under paragraph (d) would eliminate unnecessary
verbiage in the list of changes or modifications that could trigger the
revision of an approved SAP by merging the substance of existing
paragraphs (c)(4), (5), and (6) into revised paragraphs (d)(2) and (3).
BOEM also proposes to align this section with the PDE concept as
described in section V.B. above, entitled ``Project Design Envelope,''
and to ensure consistency with the proposed Sec. 585.610(a)(5). The
proposed rule would make minor editorial changes to improve clarity and
readability.
Sec. 585.618 What must I do upon completion of approved site
assessment activities?
BOEM proposes technical edits in paragraph (a) to ensure
consistency with proposed changes to Sec. 585.235 eliminating the site
assessment term of a commercial lease. The proposed paragraph (a) would
apply only if site assessment facilities are installed before COP
submittal.
Paragraph (e) of the existing regulation states that ``you must
initiate the decommissioning process [for your site assessment
activities] . . . upon termination of your lease.'' However, the
proposed subpart J of the regulations contemplates that lessees will
initiate the decommissioning process by submitting a decommissioning
application as much as 2 years before the lease expires. BOEM proposes
to revise this section for clarity and consistency with Sec. Sec.
585.905 and 585.906.
Construction and Operations Plan for Commercial Leases
Sec. 585.621 What must I demonstrate in my COP?
The proposed changes are technical edits to ensure consistency with
certain proposed changes to Sec. 585.606 for SAPs.
Sec. 585.622 How do I submit my COP?
BOEM proposes to eliminate the paper copy requirement, consistent
with its proposed changes to Sec. 585.110.
Contents of the Construction and Operations Plan
Sec. 585.626 What must I include in my COP?
BOEM proposes to clarify and streamline the data requirements for
COP submission in several key respects.
First, the proposed rule would add language in paragraph (a)
intended to clarify that a lessee may use a PDE in its COP, as further
discussed above in section V.B, entitled ``Project Design Envelope,''
section V.C., entitled ``Geophysical and Geotechnical Surveys,'' and
the analysis of Sec. 585.610.
Second, BOEM proposes replacing the existing obligation in
paragraph (a)(18) to submit a CVA nomination with the COP with a
requirement to submit a ``project verification strategy'' describing
the lessee's plan for complying with the CVA regulations at Sec. Sec.
585.705 through 585.714. As discussed further in section V.D.3(a)
above, entitled ``Certified Verification Agent Roles and Flexibility,''
this proposed amendment is intended to provide lessees with the
flexibility to nominate (and for BOEM to approve) a CVA either before
or after COP submittal.
Third, the proposed rule would make both clarifying and substantive
changes to the data submittal requirements in this section. Most of the
proposed changes relate to nomenclature and organization and are
intended to more precisely reflect BOEM's expectations for a lessee's
COP surveys. For instance, BOEM proposes to merge the existing
``shallow hazards,'' ``geological,'' ``geotechnical,'' and ``site
investigation'' survey requirements in paragraphs (a)(1), (2), (4), and
(6) into ``geological and geotechnical'' survey requirements set forth
in a new Sec. 585.626(b)(1). BOEM believes this change would clarify
any stakeholder confusion and would reduce redundancy. The shallow
hazards survey is part of both geological and geotechnical surveys (and
thus does not actually constitute an independent survey), geological
and geotechnical surveys have overlapping purposes, and the ``site
investigation'' is effectively an amalgam of the above-described
surveys.
BOEM intends the proposed geological and geophysical survey
provisions in Sec. 585.626(b)(1) to replace the existing prescriptive
requirements with performance-based standards focused on the
sufficiency of information regarding geological site conditions that
BOEM needs in order to adequately review a COP. In particular, BOEM
proposes to eliminate the requirements in the existing Sec.
585.626(a)(1) regarding shallow hazard surveys as well as the
requirements in the existing Sec. 585.626(a)(4) that lessees submit
``[t]he results of adequate in situ testing, boring, and sampling at
each foundation location'' and ``[t]he results of a minimum of one deep
boring (with soil sampling and testing) at each edge of the project
area.'' Instead, BOEM proposes to require geophysical data sufficient
to ``define the geological conditions of the site's seabed that could
impact, or be impacted by, the proposed project'' and geotechnical data
sufficient to ``ground truth the geophysical surveys; support
development of a geological model; assess potential geological hazards
that could impact the proposed project; and provide geotechnical data
for preliminary design of the facility, including type and approximate
dimensions of the foundation.''
BOEM believes that these new standards will provide it with
flexibility to tailor its data requirements to site- and project-
specific conditions without
[[Page 6008]]
needing to issue regulatory departures under Sec. 585.103. To ensure
BOEM will continue to have sufficient information to conduct an
environmental analysis and the necessary interagency consultations,
BOEM will continue performing a sufficiency review after receipt of a
COP and notifying the lessee of any additional outstanding information
requirements prior to completing the COP review. More importantly, the
elimination of the in situ boring requirement will address the concerns
raised by lessees and described in detail in section V.C. As discussed
in section V.C., the proposed rule would not reduce the quality of
geotechnical data that BOEM will review before the start of
construction. Geophysical surveys would still need to identify all
relevant shallow hazards, and the results of certain detailed
geotechnical surveys to inform engineering decisions would now need to
be submitted with the FDR as set forth in proposed Sec. 585.701.
BOEM also proposes to add flexibility to the timing for when the
required archaeological surveys as currently set forth in Sec.
585.626(a)(5) are submitted. Under the existing regulations, a lessee
must submit archaeological survey data at the same time it submits a
COP. BOEM proposes to allow a lessee to submit the results of certain
detailed subsea archaeological surveys with the FDR under the proposed
Sec. 585.701(a)(11). BOEM would allow the deferral of these surveys on
a case-by-case basis. As discussed further in section V.C., the purpose
of this proposed amendment is to facilitate additional flexibility in
finalizing project design, recognizing that the flexibility could
result in a lessee assuming additional permitting and business risk. As
in its proposed changes to Sec. 585.610, BOEM also proposes to clarify
that required reports under paragraph (b)(3) of this section include
information on all historic properties listed or eligible for listing
on the National Register of Historic Places in accordance with the NHPA
and its implementing regulations.
The proposed rule also would add Sec. 585.626(b)(4), clarifying
BOEM's need for desktop data on oceanographic and meteorological
conditions sufficient to ``support preliminary design of the facility
and support the analysis of wake effects, sediment mobility and scour,
and navigational risks.'' The existing Sec. 585.627(a)(1) requires the
submittal of similar data on conditions that could create hazards for a
project. BOEM believes obtaining more generalized meteorological and
oceanographic information to better inform modeling, design, and
environmental reviews is also necessary and appropriate. BOEM proposes
only clarifying edits to the existing biological survey requirements in
this section. BOEM proposes analogous changes, where appropriate, in
the equivalent regulations for SAPs and GAPs in Sec. Sec. 585.610 and
585.645 respectively.
The remaining proposed changes to this paragraph are edits for
organization and clarity.
Sec. 585.627 What information and certifications must I submit with my
COP to assist BOEM in complying with NEPA and other applicable laws?
BOEM proposes clarifications to the informational requirements in
paragraph (a) consistent with the proposed changes to Sec. 585.611(a).
BOEM also proposes to clarify the wording of the consistency
certification required in paragraph (b)(1) by revising the language to
provide that the applicant must certify that the proposed activities
described in detail in the applicant's plan comply with ``the
enforceable policies of the applicable States' approved coastal
management programs (as opposed to ``the State(s) approved coastal
management program(s)'') and will be conducted in a manner that is
consistent with such programs.'' This change limits BOEM's interest to
the enforceable policies of the applicable States' programs, not to the
CZMA as a whole.
BOEM also proposes a technical correction to paragraph (c). That
provision requires a lessee to submit an oil spill response plan (OSRP)
with its COP ``as required by 30 CFR part 254.'' Because the cross-
referenced regulations apply only to OCS oil and gas activities, BOEM
proposes to require that a lessee submit an OSRP ``in compliance with
33 U.S.C. 1321, including information identified in 30 CFR part 254
that is applicable to your activities.'' This statutory provision is
not limited to oil and gas activities, and grants BOEM and its lessees
more flexibility to craft OSRPs that are commensurate with the
estimated worst-case discharge from a renewable energy facility. The
regulation clarifies that the OSRP must include information identified
in 30 CFR part 254 that is applicable to the lessee's activities. BOEM,
in consultation with BSEE, intends to issue guidance regarding the
recommended contents of an OCS renewable energy OSRP.
Additionally, in the section heading and regulatory text, the more
appropriate phrase ``applicable laws'' would replace ``relevant laws.''
The proposed rule would eliminate the paper copy requirement consistent
with BOEM's proposed changes to Sec. 585.110 and would make minor
editorial changes to improve clarity and readability.
Sec. 585.628 How will BOEM process my COP?
BOEM proposes to add a provision to paragraph (c) stating that,
after all information requirements for the COP are met and after the
appropriate environmental assessment or draft environmental impact
statement, if required, has been published, the lessee or grant holder
would be required to submit its COP consistency certification and
associated data and information under 15 CFR part 930, subpart E to the
applicable State CZMA agencies through BOEM. BOEM has determined that
submitting the COP to the States for Federal consistency review prior
to the publication of a draft NEPA analysis would be premature because
the States would not have all the relevant information at their
disposal to make a State's consistency decision.
In practical terms, this would change the date on which a COP is
considered an ``active application'' under 15 CFR 930.51(f). Therefore,
the CZMA review period (or the start of the 30-day time period for a
State to submit an unlisted activity review request to NOAA under 15
CFR 930.54) would start on the date BOEM issues the notice of
availability for the draft NEPA analysis instead of the date BOEM
issues the notice of intent to publish a draft NEPA analysis. For CZMA
regulatory purposes, this change would make the draft NEPA analysis
``necessary data and information'' under 15 CFR 930.58.
BOEM proposes several changes to the project easement requirements
in paragraph (g). Section 585.112 of the existing regulations defines a
``project easement'' to mean ``an easement to which, upon approval of
your COP or GAP, you are entitled as part of the lease for the purpose
of installing, gathering, transmission, and distribution cables,
pipelines, and appurtenances on the OCS as necessary for the full
enjoyment of the lease.'' Section 585.628(g) provides that if BOEM
approves your project easement, it will issue an addendum to your lease
specifying the terms of the project easement. Under the existing
regulations at Sec. 585.628(g), a project easement may include off-
lease areas that contain the sites on which cable, pipeline, or
associated facilities are located and ``do not exceed 200 feet (61
meters) in width, unless safety and environmental factors during
construction and maintenance of the associated cables or pipelines
require a
[[Page 6009]]
greater width[.]'' However, though a lessee will have gathered
sufficient data to know the general route (or routes) of its cables by
the COP-approval stage, the precise cable route may not be known until
a lessee has conducted detailed surveys of hazards, such as unexploded
ordnance, following COP approval. A lessee occasionally may discover
potential hazards while conducting installation activities that may
necessitate a deviation from the proposed route. Consequently, a 200-
foot-wide easement may be too narrow at the COP-approval stage to
accommodate a reasonable degree of uncertainty regarding the final
export cable route and could result in time-consuming amendments to the
project easement before or after cable installation.
In order to provide flexibility to the lessee and minimize the need
for subsequent project easement amendments, BOEM proposes to amend
paragraph (g) to allow BOEM to issue project easements of ``sufficient
off-lease area to accommodate potential changes at the design and
installation phases of the project for locating cables, pipelines, and
other appurtenances necessary for your project.'' Although a larger
easement would result in greater rental fees under Sec. 585.507, a
lessee may relinquish any unused portions of the easement after
construction is completed. BOEM believes that this approach will allow
a lessee to right-size the width of its project easements on a case-by-
case basis, depending on site conditions and a lessee's particular
needs. This revision would be consistent with the PDE strategy
described in section V.B. above because it maximizes a lessee's ability
to make design choices later in the development process without
revising its COP or reopening the permit review process. BOEM would
still require that a COP include sufficient survey data for whatever
project easement areas are requested. The proposed rule also would not
affect the quantity and quality of data that BOEM presently requires
before the lessee may commence installation of the export cable.
BOEM also proposes a technical correction to paragraph (g) that
would make project easements subject to the same conditions as ROWs and
RUEs under Sec. 585.302(b): that the United States can grant rights in
the area to other lessees or grant holders that do not unreasonably
interfere with operations on the easement. Among other reasons, these
provisions are critical to ensure that nearby existing or future
offshore wind lessees are not definitively foreclosed from using the
same general cable routes established by an earlier lessee. In the long
run, cable routes shared by multiple projects could result in lower
environmental impacts, streamlined permitting, and economic
efficiencies.
Other remaining proposed changes to this section are edits for
clarification, better organization, and consistency with changes to the
equivalent SAP and GAP regulations.
Activities Under an Approved COP
Sec. 585.634 What activities require a revision to my COP, and when
will BOEM approve the revision?
The proposed revisions under paragraph (c) maintain consistency
with proposed changes to Sec. 585.617 for SAPs by eliminating
unnecessary verbiage in the list of changes or modifications that could
trigger the revision of an approved COP and by merging the substance of
existing paragraphs (c)(4), (5), and (6) into revised paragraphs (c)(2)
and (3). BOEM also proposes to incorporate in paragraph (c)(3) the PDE
concept for a ``range'' of facility locations for the reasons set forth
above in sections V.B, entitled ``Project Design Envelope,'' and V.C,
entitled ``Geophysical and Geotechnical Surveys,'' and to ensure
consistency with proposed Sec. 585.626(a). By incorporating the PDE,
BOEM believes it can be less prescriptive regarding the threshold that
would trigger a COP revision and can allow that threshold to be
proportionate to the magnitude of the proposed project changes. BOEM
seeks comments on what threshold should trigger COP revision regarding
changes in position or layout of bottom disturbances. The remaining
proposed revisions to this section are edits for clarity.
Sec. 585.637 When may I commence commercial operations on my
commercial lease?
Paragraph (a) of the existing section provides that commercial
operations may commence 30-calendar days after ``the CVA or project
engineer has submitted to BOEM the final Fabrication and Installation
Report for the fabrication and installation review, as provided in
Sec. 585.708.'' However, Sec. 585.708(a)(5)(ii) allows the lessee to
commence commercial operations 30-calendar days after BOEM receives the
CVA verification report unless BOEM raises objections with the lessee
during that time. The proposed rule would remedy this inconsistency by
moving the existing Sec. 585.708(a)(5)(ii) provision into section
585.637 and would change ``certification'' to ``verification'' to
maintain consistency with other provisions of the proposed rule. The
proposed rule also would clarify that commercial operations may
commence 30-calendar days after BOEM deems submitted--rather than
receives--the final project verification report as described in the
proposed Sec. Sec. 585.704 and 585.708(a)(5) provided that BOEM has
not notified you within that time frame of any objections to the
verification report and that BOEM has confirmed receipt of critical
safety systems commissioning records, as described in Sec.
585.708(a)(6). This proposed change is designed to ensure that BOEM is
in possession of complete and accurate submissions prior to the
commencement of its limited review period. Finally, to improve
organization, the proposed rule would move the existing Sec. 585.713
requirement to notify BOEM within 10-business days of starting
commercial operations into section 585.637.
BOEM is aware that electricity may be generated and distributed
during testing activities conducted by a Lessee prior to submitting the
proposed reports in this section (required as a prerequisite to
beginning commercial operations). Under the existing regulations,
electricity generation and distribution meets the definition of
commercial operations, at Sec. 585.112. BOEM has proposed an edit to
the definition of commercial operations whereby the generation of
electricity needed for the preparation of the final FIR, or the
generation of electricity for testing purposes, would be excluded from
the definition of commercial operations provided that such electricity
is not sold on a commercial basis.
BOEM is soliciting comment on the proposed revisions to the
provisions of Sec. 585.637 for required submissions prior to
commencing commercial operations, and on the revisions to the
definitions of commercial activities and commercial operations in Sec.
585.112.
Sec. 585.638 What must I do upon completion of my commercial
operations as approved in my COP or FERC license?
The existing regulation, under paragraph (a), states that you must
``initiate the decommissioning process'' upon completion of your
approved COP activities. However, the proposed subpart J of the
regulations contemplates that lessees would initiate the
decommissioning process by submitting a decommissioning application as
much as 2 years before the lease expires. BOEM proposes to revise this
section for clarity and
[[Page 6010]]
consistency with Sec. Sec. 585.905 and 585.906.
General Activities Plan Requirements for Limited Leases, ROW Grants,
and RUE Grants
Sec. 585.640 What is a General Activities Plan (GAP)?
The proposed rule would eliminate the second sentence in paragraph
(b) because it is redundant with the requirements found in the existing
and proposed Sec. 585.303(a) regarding the due date for GAP
submission.
Sec. 585.641 What must I demonstrate in my GAP?
The proposed changes include technical edits to ensure consistency
with proposed changes to existing provisions of Sec. Sec. 585.606 and
585.621, as appropriate.
Sec. 585.642 How do I submit my GAP?
BOEM proposes to eliminate the paper copy requirement for this
regulation, consistent with its proposed changes to Sec. 585.110.
Contents of the General Activities Plan
Sec. 585.645 What must I include in my GAP?
BOEM proposes changes to this section consistent with its proposed
revisions to Sec. 585.610 for SAPs and Sec. 585.626 for COPs, as
appropriate.
Sec. 585.646 What information and certifications must I submit with my
GAP to assist BOEM in complying with NEPA and other applicable laws?
BOEM proposes clarifications to the informational requirements in
paragraph (b) of this section similar to those proposed for SAPs in
Sec. 585.611 and COPs in Sec. 585.627, as appropriate. As in those
sections, these clarifications are consistent with BOEM's present
expectations for GAP submittals and, therefore, should not create
additional burdens on lessees.
Additionally, in the section heading and regulatory text, the more
appropriate phrase ``applicable laws'' would replace ``relevant laws.''
Sec. 585.647 How will my GAP be processed for Federal consistency
under the Coastal Zone Management Act?
BOEM is proposing minor changes to provide clarity and consistency
with other proposed changes.
Sec. 585.648 How will BOEM process my GAP?
BOEM proposes minor editorial changes to this section to improve
clarity, eliminate redundancy, enhance readability, and provide
consistency with proposed changes to the equivalent SAP and COP
regulations.
Activities Under an Approved Gap
Sec. 585.652 How long do I have to conduct activities under an
approved GAP?
BOEM proposes a technical revision to paragraph (a) to maintain
consistency with its proposed modifications to the limited lease
periods in Sec. 585.236.
Sec. 585.655 What activities require a revision to my GAP, and when
will BOEM approve the revision?
BOEM proposes clarifications and technical edits to the provisions
regarding GAP revisions in paragraphs (a) and (c) that are analogous to
the ones BOEM proposes in Sec. 585.617 for SAP revisions and Sec.
585.634 for COP revisions.
Sec. 585.657 What must I do upon completion of approved activities
under my GAP?
BOEM proposes a clarification analogous to proposed changes to the
corresponding SAP and COP requirements in Sec. Sec. 585.618(e) and
585.638 respectively.
Cable and Pipeline Deviations
Sec. 585.659 What requirements must I include in my SAP, COP, or GAP
regarding air quality?
BOEM proposes a technical correction to reflect Congress' 2011 CAA
amendment expanding BOEM's air quality jurisdiction to offshore of the
North Slope Borough of Alaska.\94\
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\94\ 42 U.S.C. 7627.
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H. 30 CFR Part 585, Subpart H--Facility Design, Fabrication, and
Installation
Subpart G, Facility Design, Fabrication, and Installation, is being
redesignated as subpart H to accommodate the addition of a new subpart
B, as noted in section VI.B above.
Reports
Sec. 585.700 What reports must I submit to BOEM before installing
facilities described in my approved SAP, COP, or GAP?
BOEM proposes to amend this section first to clarify that BOEM has
the authority to allow lessees to submit their FDRs and FIRs for BOEM's
review by stage or component. As discussed in section V.D.3(b) above,
entitled ``Staged Submittal of the Facility Design Report and
Fabrication and Installation Report,'' this proposed change is intended
to affirm that lessees and grant holders have flexibility in certain
circumstances to commence fabrication or construction of project
components while other aspects are still under review. Under the
proposed rule, a lessee's or a grant holder's ability to avail itself
of this flexibility would be contingent on providing an adequate
explanation to BOEM that all components will function together in an
integrated manner in accordance with its project design basis--which
identifies all requirements, assumptions, and methodologies essential
for the project design--as verified by the project CVA. If multiple
FDRs and FIRs were submitted, each component report would have its own
60-day period for BOEM to review and respond with objections once BOEM
deems the report submitted, consistent with the new Sec. 585.704. BOEM
proposes to clarify that FDRs and FIRs may be submitted before or after
SAP, COP, or GAP approval, though BOEM's 60-day review period will not
start until the report is deemed submitted and the plan is approved.
BOEM believes this proposed change is necessary to ensure that its
limited period for review and objection does not begin until it has
determined that the submission is complete, accurate, and ready for
consideration. The changes described above are achieved by the
inclusion of new paragraphs (b) and (c), and revised language to
existing paragraphs (b) and (c), which BOEM proposes to redesignate as
paragraphs (d) and (f).
Second, as discussed in section V.D.3 above, entitled ``Definition
of `Fabrication' and Early Fabrication of Facility Components,'' BOEM
is also revising this section to address industry concerns with long
lead times associated with the procurement and fabrication of facility
components. To address these concerns, BOEM is proposing revisions to
the language in paragraph (b) of the existing regulations (redesignated
as paragraph (d)), and to add a new paragraph (e). Paragraph (d)
clarifies that fabrication and installation activities on the OCS may
only commence once a lessee or grant holder has received BOEM's non-
objection to the FDR and FIR or if no objections were made by the end
of BOEM's 60-day review. Proposed new paragraph (e) would clarify that
(i) procurement of discrete parts of the project that are commercially
available in standardized form and type-certified components, or
fabrication activities that do not take place on the OCS, may commence
prior to the submittal of the FDR and FIR or any plans required under
BOEM's regulations; and (ii) any procurement or
[[Page 6011]]
fabrication of facility components prior to BOEM's non-objection to the
FDR and FIR, or the end of BOEM's 60-day review without objections, is
subject to verification by the CVA and to possible objection by BOEM
prior to the installation of said components on the OCS.
In addition to the foregoing, BOEM also proposes to add in Sec.
585.112 a definition for the term ``fabrication,'' since the existing
regulations do not define ``fabrication.'' The proposed rule would
define fabrication as the ``cutting, fitting, welding, or other
assembly of project elements of a custom design conforming to project-
specific requirements,'' while excluding from this definition ``the
procurement of discrete parts of the project that are commercially
available in standardized form and type-certified components.''
Finally, BOEM proposes to revise existing paragraph (c), which is
proposed to be redesignated as paragraph (f), to clarify that it has 60
calendar days to object to an FDR or FIR or to request additional
information. BOEM believes this proposed change is necessary to
emphasize that additional time may be needed for its review if key
information is missing from a report.
These proposed changes would bring BOEM's regulations in line with
industry practices and would allow orderly and efficient BOEM and CVA
supervision of a project's technical development without sacrificing
safety. These proposed changes also would afford greater flexibility to
lessees and grant holders to begin certain procurement and fabrication
(e.g., manufacturing) activities at an earlier stage.
Sec. 585.701 What must I include in my Facility Design Report?
BOEM proposes several modifications to the FDR submission
requirements. The proposed rule would replace the requirements for
floating turbines in the existing paragraph (b) with a reworded
requirement in proposed paragraph (a)(6), partly for organizational
purposes and partly as a technical correction because USCG regulations
regarding structural integrity and stability do not apply to floating
offshore wind facilities. To maintain consistency with its proposed
changes to Sec. 585.626, BOEM proposes that the FDR include the
results of any detailed geotechnical surveys that were deferred as a
result of proposed Sec. 585.626(b)(1)(iii). Similarly, BOEM proposes
that the FDR include the results of any archaeological surveys that
were deferred on a case-by-case basis under proposed Sec.
585.626(b)(3). To maintain consistency with the FIR and to provide
flexibility, BOEM is adding a requirement in new paragraph (a)(12) for
the lessee to include design standards in the FDR. This would allow the
lessee to propose design standards specific to their project instead of
BOEM incorporating standards by reference into the regulations. Also,
BOEM is proposing a new requirement in paragraph (a)(13) for the lessee
to include information on critical safety systems, including a risk
assessment that identifies the critical safety systems and a
description of the identified critical safety systems. This information
is necessary for the CVA to verify the commissioning of critical safety
systems, as required by proposed Sec. 585.705. The proposed rule would
require the CVA to verify that the facility has been designed to
provide for safety. By allowing the lessee to conduct a risk assessment
to identify critical safety systems for the individual project, BOEM is
providing increased flexibility for the types of equipment that can be
used, especially considering the rapid pace of technology development.
Finally, for regulatory flexibility, BOEM proposes a catch-all category
to cover necessary project-specific information that may not be
contained within the listed categories. BOEM also proposes to eliminate
the third column of the table in paragraph (a) as superfluous given
BOEM's proposed elimination of the paper copy requirement and to
replace that column's content with a new paragraph (b) consistent with
the proposed Sec. 585.110.
The remaining proposed changes are technical corrections and
include: removal of the word ``proposed'' from the project easement
requirement in paragraph (a)(2)(iii) because the project easement would
be approved already at the time of BOEM's FDR review; substitution of
``verification'' for ``certification'' in the description of the CVA's
duties, as discussed in section V.D.1; addition to the CVA verification
statement that the facility has been designed to provide for safety, in
keeping with other proposed changes; and removal of the trade secrets
provision as redundant of Sec. 585.113.
Sec. 585.702 What must I include in my Fabrication and Installation
Report?
BOEM proposes several modifications to the FIR submission
requirements. The proposed rule would add a requirement in new
paragraph (a)(6) that lessees and grant holders submit any certificates
documenting that they are adhering to a recognized quality assurance
standard. This regulatory change would conform with industry practice
and would allow alternate means of compliance on a case-by-case basis.
BOEM also proposes to clarify that any environmental information
contained in a previously submitted corresponding plan may be
incorporated by reference in an FIR to the extent that information
satisfies the requirements of proposed paragraphs (a)(7)(i) through
(iv). BOEM is also proposing to add a requirement in paragraph (a)(8)
for the submittal of commissioning procedures for critical safety
systems. This information is necessary for the CVA to verify the
commissioning of critical safety systems, as required by proposed Sec.
585.705. The proposed rule would clarify that commissioning procedures
include original equipment manufacturer or other procedures for
commissioning of critical safety systems. BOEM also proposes to
eliminate the third column of the table in paragraph (a) as superfluous
given BOEM's proposed elimination of the paper copy requirement and to
replace that column's content with a new paragraph (b) consistent with
the proposed Sec. 585.110. The proposed paragraph (c) would provide
clarity and added flexibility regarding project easement information
submittals and requests. Finally, as with its proposed changes to the
FDR requirements in Sec. 585.701, BOEM proposes a catch-all category
for necessary project-specific information that may not be covered by
the listed categories.
The remaining proposed changes are largely the same as the
technical corrections to Sec. 585.701.
Sec. 585.703 What reports must I submit for project modifications and
repairs?
BOEM proposes to eliminate language in paragraph (a) indicating
that major repairs or modifications must be ``certified,'' consistent
with the proposed changes to Sec. Sec. 585.701 and 585.702. To promote
safety, BOEM also proposes that any major modification or repair report
contain a CVA verification statement analogous to the one required for
FDRs in Sec. 585.701 and for FIRs in Sec. 585.702. BOEM is also
proposing to clarify the definition of a ``major repair'' in paragraph
(a)(1) to include substantial repairs to critical safety systems and
the definition of a ``major modification'' in paragraph (a)(2) to
include a substantial alteration of a critical safety system. It is
essential that BOEM is made aware of major repairs and modifications to
these systems and that the repairs and modifications are done in
accordance with an accepted engineering practice. The remaining
proposed changes are similar to technical corrections to Sec. 585.701.
[[Page 6012]]
Sec. 585.704 After receiving the FDR, FIR, or project verification
reports, what will BOEM do?
Over the past few years, BOEM has received numerous incomplete COPs
and other documents that it could not properly evaluate. This has
created many issues between the lessees and BOEM with respect to the
status of the applications. In order to address this, BOEM is proposing
to make a determination as to the completeness of the application
before its review period begins. The proposed rule would provide that
BOEM will have 20-calendar days to make this determination. Under the
proposed rule, once BOEM makes a determination that any given report is
sufficiently accurate and complete, it would deem it submitted, which
would begin the applicable period of time for BOEM to review and
object, as necessary.
This procedure is similar to the practice described in Sec.
550.231 for exploration plans under the oil and gas program, which BOEM
has implemented successfully for many years. BOEM is proposing to add
this regulation to clarify that the reports (e.g., FDR, FIR, and
project verification reports) must be deemed submitted before the 60-
calendar day or 30-calendar day review ``clock'' begins.
Certified Verification Agent
Sec. 585.705 When must I use a Certified Verification Agent (CVA)?
The proposed rule explicitly would allow the use of multiple CVAs
on a project. This change would enable a lessee or grant holder to
assign the expertise of specific CVAs to the corresponding project
component. This change is further discussed in the analysis of Sec.
585.706.
BOEM proposes several modifications, clarifications, and technical
corrections to this section. First, the proposed rule would add a
requirement for the CVA to ensure critical safety systems are
commissioned in accordance with the procedures identified in the FDR,
FIR, and the project modification and repair reports and for the CVA to
provide BOEM with immediate reports of incidents that affect the
commissioning of critical safety systems. This addition is necessary
for BOEM to meet the requirement in Sec. 585.102(a)(1) to ensure any
authorized activity is carried out in a manner that provides for
safety. Also, BOEM is currently requiring a qualified third party to
ensure critical safety systems are commissioned in accordance with the
procedures identified in the FDR, FIR, and the project modification and
repair reports. This addition will clarify that the qualified third
party should be the CVA, who is already familiar with the project.
Second, the proposed rule would clarify that the CVA requirement
applies unless it is waived under paragraph (c) of this section. Third,
BOEM proposes to clarify that, just as multiple CVAs may be nominated
for different project elements (see Sec. 585.706 analysis), BOEM may
grant partial waivers of the CVA requirement for discrete elements of a
project. For instance, BOEM could determine that a hypothetical
project's electrical service platform has a standard design that does
not require CVA review, while the remainder of the project still
warrants such review. Fourth, the proposed rule would substitute
``fabricator'' and ``fabricated'' for ``manufacturer'' and
``manufactured'' to avoid confusion and maintain consistency with Sec.
585.700. Fifth, the proposed rule would add a requirement that
fabrications, repairs, or modifications that are the subject of a CVA
waiver nonetheless must adhere to a recognized quality assurance
standard. This regulatory change would maintain consistency with
proposed revisions to Sec. 585.702(a) and would conform to industry
practice while still allowing for alternative compliance standards on a
case-by-case basis. Sixth, the proposed rule would eliminate the
requirement that waiver requests be submitted with plans, thus
relieving BOEM of the obligation to consider such waiver requests as
part of its plan reviews. This change would maintain consistency with
other proposed changes intended to decouple the CVA nomination process
from plan approval as discussed in section V.D.1. Finally, the proposed
rule would change ``certify'' to ``verify'' as also discussed in
section V.D.1.
The remaining proposed changes to this section are edits for
clarity and consistency.
Sec. 585.706 How do I nominate a CVA for BOEM approval?
This section would be amended to eliminate the requirement that a
lessee or grant holder nominate a CVA with its COP, SAP, or GAP.
Instead, BOEM would require only that a CVA be nominated and approved
before conducting the relevant verification activities. As discussed in
section V.D.3(a) above, entitled ``Certified Verification Agent Roles
and Flexibility,'' the purpose of this proposed change is to allow a
lessee and a grant holder greater flexibility to onboard CVAs earlier
in the project development process so they may provide independent
review of design concepts before COP submittal--as well as to replace
or nominate new CVAs as needed following COP submittal. Additionally,
the proposed rule would require that if a lessee or grant holder seeks
to use multiple CVAs, it must nominate a general project CVA no later
than COP submittal to manage the project verification strategy, to
ensure CVAs are conducting their reviews in a consistent manner, and to
oversee the transition areas between various project components and
their associated CVAs. BOEM recognizes that the various components of
an offshore wind facility must function as an integrated whole and
believes this requirement for a general project CVA will help ensure
that third-party verification is coordinated.
The existing regulation bars CVAs from acting in a capacity that
would create a conflict of interest or the appearance of one. Because
objectivity is at the core of the CVA role, BOEM proposes to clarify
that the nominated CVA must not have been involved in preparing the
plans, reports, analyses, or other technical submittals that it will
verify. While this requirement is encompassed in the existing
regulations, BOEM believes this clarification responds to inquiries it
has received from industry. The remaining proposed changes to this
section are technical corrections or edits for clarity.
Sec. 585.707 What are the CVA's primary duties for facility design
review?
The proposed rule would change ``certify'' to ``verify'' as
discussed in section V.D.1. Additionally, this section would mirror
proposed changes to Sec. 585.701 by replacing the requirements for
floating turbines in the existing paragraph (c) with a reworded
requirement in proposed paragraph (b)(10). The proposed rule would
allow, but not require, the CVA to utilize the FDR defined in proposed
Sec. 585.700. In addition to the current ``verification''
requirements, the proposed rule would require the CVA to verify that
the facility has been designed to provide for safety and to conduct an
independent assessment of the design for human safety and accident
prevention. This addition is necessary for BOEM to meet the requirement
in Sec. 585.102(a)(1) to ensure any authorized activity is carried out
in a manner that provides for safety.
Sec. 585.708 What are the CVA's or project engineer's primary duties
for fabrication and installation review?
The proposed rule would update existing paragraphs (a)(5) and (b)
by replacing the terms ``certify'' and ``ensure'' with ``verify'' for
consistency
[[Page 6013]]
with the proposed changes to the CVA standard of review as discussed
further in section V.D.3(a) above, entitled ``Certified Verification
Agent Roles and Flexibility.'' The proposed rule would add a
requirement in paragraph (a)(1) for the CVA to use good engineering
judgment and practice when conducting an independent assessment of the
commissioning of critical safety systems, would require that the
commissioning of critical safety systems be consistent with Sec.
585.705, and would require that the CVA monitor the commissioning of
critical safety systems in paragraph (a)(2). Similar to paragraph
(5)(i), BOEM is proposing to add paragraph (a)(6) to require the CVA to
provide records documenting that critical safety systems are
commissioned in accordance with the procedures identified in Sec.
585.702(a)(8) and to identify the location of all records pertaining to
commissioning of critical safety systems, as described in Sec.
585.714(c). Unlike paragraph (5)(i), BOEM is not expecting a full
report of the commissioning of critical safety systems. BOEM expects a
report with the relevant data, showing the successful completion of the
commissioning, test date, and signature of the CVA.
Additionally, the proposed rule would add language regarding
quality assurance standards to ensure consistency with Sec.
585.702(a)(6). For clarity and organization, BOEM also proposes to move
the requirement in the existing paragraph (a)(5)(ii) regarding
commencement of commercial operations to Sec. 585.637. Additionally,
BOEM proposes to add a requirement that if multiple CVAs are used--thus
necessitating multiple verification reports for different project
components--the general project CVA must submit the final verification
report for the entire project prior to the commencement of commercial
operations under Sec. 585.637.
The remaining proposed changes to this section are edits for
clarity and consistency.
Sec. 585.709 When conducting onsite fabrication inspections, what must
the CVA or project engineer verify?
This section would be revised to mirror the proposed changes to
Sec. 585.701 by modifying the existing paragraph (b) to remove the
references to the U.S. Coast Guard and by specifying the CVA must
verify the structural integrity, stability, and ballast of a floating
facility. In addition, paragraph (b) is being modified to remove the
requirement for consideration of foundations, foundation pilings and
templates, and anchoring systems, as well as mooring or tethering
systems, because those requirements are addressed in Sec. 585.710.
Sec. 585.710 When conducting onsite installation inspections, what
must the CVA or project engineer do?
BOEM proposes to simplify this section to require only that the CVA
``verify'' the enumerated items. BOEM intends for this change to ensure
consistency with the emphasis on the ``verification'' standard for CVA
activities discussed in section V.D.1 and reflected in other proposed
changes in this subpart. BOEM also believes the terms proposed for
removal are redundant of ``verification.'' BOEM is also proposing to
add language in several locations requiring the CVA to verify the
commissioning of critical safety systems to be consistent with Sec.
585.705. A new paragraph (f) would clarify BOEM's expectation that the
CVA make periodic on-site inspections to verify: (1) the systems and
equipment function as designed; and (2) the final commissioning records
are complete during periodic on-site inspections. Both the OCS Lands
Act and the regulations at Sec. 585.102(a)(1) require that lessees
ensure permitted activities are conducted in a manner that provides for
safety. BOEM will rely on the CVA to verify that the commissioning of
critical safety systems meets this obligation. The remaining changes
are proposed to enhance organization, clarity, or consistency with
amendments to other sections of this subpart.
Sec. 585.712 What are the CVA's or project engineer's reporting
requirements?
The proposed rule would eliminate the paper copy requirement,
consistent with BOEM's proposed changes to Sec. 585.110.
The proposed rule also would add a requirement that the CVA report
summarize any issues with facility design, fabrication, or
installation, or the commissioning of critical safety systems. This
requirement would allow BOEM to catalog a history of successfully
resolved issues and lessons learned, enabling BOEM to assess and
facilitate the improvement and evolution of the OCS renewable energy
industry and the CVA program. Adding this provision to the CVA report
also would codify a standard industry practice.
Sec. 585.713 [Reserved]
Section 585.713 in the existing regulations is entitled ``What must
I do after the CVA or project engineer confirms conformance with the
Fabrication and Installation Report on my commercial lease?'' Under
this section in the existing regulations a lessee must notify BOEM
within 10-business days of commencing commercial operations. For
clarity and better organization, BOEM proposes moving that requirement
from Sec. 585.713 in the existing regulations to Sec. 585.637 in the
proposed rule to consolidate this provision with the other requirements
in Sec. 585.637 related to the commencement of commercial operations.
As that was the sole provision under Sec. 585.713, this section title
would be deleted and the section would be reserved for future use.
Sec. 585.714 What records relating to FDRs, FIRs, and Project
Modification and Repair Reports must I keep?
BOEM proposes adding a requirement that the records of the
commissioning of critical safety systems must also be kept and made
available to BOEM representatives until BOEM releases the lessee from
its financial assurance. The proposed rule would also require the
lessee to provide BOEM with the location of the records of the
commissioning of its critical safety systems. This revision would help
ensure the availability of proper records prior to release of the
financial assurance.
BOEM proposes a technical correction to this section to clarify
that the recordkeeping requirements apply to the design, engineering,
and modification and repair reports regulated in this subpart.
Reference to recordkeeping requirements for SAPs, COPs, and GAPs are
removed because they are addressed in the existing and proposed Sec.
585.602. BOEM also proposes to add records of commissioning of critical
safety systems to the list of records to reflect changes proposed
elsewhere.
I. 30 CFR Part 585, Subpart I--Environmental and Safety Management,
Inspections, and Facility Assessments for Activities Conducted Under
SAPs, COPs, and GAPs
Subpart H, Environmental and Safety Management, Inspections, and
Facility Assessment for Activities Conducted Under SAPs, COPs, and
GAPs, is being redesignated as subpart I to accommodate the addition of
a new subpart B, as noted in section VI.B above.
[[Page 6014]]
Sec. 585.803 How must I conduct my approved activities to protect
essential fish habitats identified and described under the Magnuson-
Stevens Fishery Conservation and Management Act?
The proposed rule would correct a typographical error in paragraph
(b).
Safety Management Systems
Sec. 585.810 When must I submit a Safety Management System (SMS) and
what must I include in my SMS?
The existing Sec. 585.810 broadly outlines the elements that must
be described in the SMS. BOEM is proposing changes that would provide
greater detail regarding what the SMS must include without changing the
substantive requirements. The complexity of the SMS would be dependent
on the complexity of the underlying activities that it covers and
proportionate to the scope of the activity being evaluated.
As discussed in section V.H above, entitled ``Safety Management
Systems,'' two factors prompted these proposed changes. First, the
offshore wind energy industry repeatedly has requested additional
detail regarding BOEM's expectations of what must be included in the
SMS. Second, in coordination with OSHA and USCG, DOI has assumed
primary Federal regulatory responsibility for worker safety on OCS
renewable energy facilities. Both of these factors highlight the need
for BOEM to elaborate on its expectations for what must be included in
the SMS. The proposed rule would provide such elaboration.
The proposed rule would require a lessee to use an SMS for
activities conducted on the OCS to develop or operate a lease, from met
buoy placement and site assessment work through decommissioning, and to
provide its SMS to BOEM upon request. The lessee would also be required
to submit a detailed description of the SMS with its COP (as provided
under Sec. 585.627(d)), SAP (as provided in Sec. 585.614(b)), or GAP
(as provided in Sec. 585.651). This addition clarifies that a
structured approach to safety is both expected and required for all
lease-associated work. This structured approach should take into
account the risks to personnel and the environment associated with work
undertaken on the OCS. The SMS is intended to increase awareness and
communication of those risks, mitigate those risks, and implement a
disciplined organizational approach for ensuring effective risk
mitigation. The proposed regulation provides a more robust framework
for the SMS submission to provide clarification of BOEM's expectations,
facilitate compliance review, and to ensure the submitted SMS addresses
critical subjects such as the safety of personnel, remote monitoring,
control and shut down capabilities, emergency response procedures, fire
suppression equipment, testing of the SMS, and proper personnel
training.
The SMS is required to cover only those activities that are to take
place on the OCS at any given time, from met buoy placement and site
assessment work through decommissioning. Each SMS needs to be only as
complex as the activities with which it is associated. Should incidents
occur, investigations can focus on the role and success of the SMS with
the purpose of guiding continual improvement. The requirement to have
an SMS in place before placement of a met buoy or engaging in site
assessment activities may create a small additional burden. However,
BOEM's obligations under the OCS Lands Act to provide for personnel
safety and protection of the environment justify the inclusion of such
a requirement.
Sec. 585.811 Am I required to obtain a certification of my SMS?
The proposed rule would add a new Sec. 585.811 stating that third-
party SMS certification may be obtained from accredited safety and
environmental CABs. Such certification would possibly benefit a lessee
or a grant holder through reduced frequency or scope of BOEM's safety
inspections and oversight of corrective actions arising from lessee or
grant holder self-inspections. As discussed in section V.H. above,
entitled ``Safety Management Systems,'' BOEM could rely on such third-
party certifications for assurance of SMS compliance in lieu of direct
inspection on the part of BOEM. Additionally, BOEM believes that a
CAB's use of a consensus safety standard--such as ANSI Z10 or ISO/IEC
45001--would allow the incorporation of the most current safety
approaches in a rapidly evolving industry without the need for
additional rulemaking.
Sec. 585.812 How must I implement my SMS?
BOEM proposes to revise the section heading to reflect its expanded
scope, to eliminate the word ``fully'' from the current ``fully
functional'' requirement, to add the phrase ``and must remain
functional while you perform'', and to abbreviate ``Safety Management
Systems'' as ``SMS'' to improve readability. The proposed rule also
would redesignate the existing regulatory text as paragraph (a) and
modify it to be consistent with the clarifications in proposed Sec.
585.810.
The proposed rule would also add a new paragraph (b) containing two
reporting requirements. The first proposed report would be an annual
summary of safety performance data due March 31 covering the previous
calendar year during which site assessment, construction, operations,
or decommissioning activities occurred, using a form available on the
BOEM website.\95\ That form is similar to the one currently required in
BSEE's OCS oil, gas, and sulfur regulations. The second proposed report
would be a summary of the most recent SMS audit, corrective actions
implemented or pending as a result of that audit, and an updated SMS
description highlighting changes made since the last report. This
report would be due every 3 years or upon BOEM's request.
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\95\ The proposed form is posted to this proposed rule's docket
at https://www.regulations.gov/docket?D=BOEM-2020-0033. To access
the form as part of the information collection review, see infra
note 94.
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The proposed revisions to this section would allow DOI and relevant
stakeholders to measure the success of the SMS approach to ensure
safety. It also would provide credible data for comparisons of an
individual project's safety performance to that of the overall OCS
renewable energy industry.
Equipment Failure and Adverse Environmental Effects
Sec. 585.815 What must I do if I have facility damage or an equipment
failure?
The proposed rule would correct an erroneous cross-reference in
paragraph (a) and would make other minor edits to enhance readability.
Inspections and Assessments
Sec. 585.820 Will BOEM conduct inspections?
The proposed rule would update the regulations so that BOEM's
conduct of an inspection of any OCS facilities and vessels engaged in
activities under this subpart is optional, to complement changes being
proposed to the industry self-inspection requirements under Sec.
585.824. The proposed rule would clarify that during the inspections
BOEM would verify that activities are conducted in compliance with the
OCS Lands Act; the regulations in this part; the terms, conditions, and
stipulations of the lease or grant; approved plans; and other
applicable laws and regulations. BOEM would also determine whether
proper safety equipment has been installed and is operating properly
according to the
[[Page 6015]]
SMS, as required in Sec. 585.810. These revisions would provide
clarity and transparency to the BOEM inspections process.
Sec. 585.821 Will BOEM conduct scheduled and unscheduled inspections?
The proposed rule would clarify that BOEM may conduct both
scheduled and unscheduled inspections. This revision would provide
greater flexibility for how BOEM conducts inspections.
Sec. 585.822 What must I do when BOEM conducts an inspection?
BOEM proposes a technical correction to clarify that, for BOEM
inspections, access for BOEM inspectors must be provided to all
facilities and vessels used for activities authorized under this
subpart. The proposed rule would also require that certain records be
retained until BOEM releases the associated financial assurance and
that the lessee make these records available to BOEM upon request. This
revision would help ensure the availability of proper documentation
during inspection.
Sec. 585.824 How must I conduct self-inspections?
The proposed rule would require that you conduct an onsite
inspection of each of your facilities at least once a year. This
revision would allow BOEM to have flexibility in conducting the annual
onsite inspection required under the OCS Lands Act by allowing BOEM to
rely upon the lessee's self-inspection to fulfill this requirement in
the event BOEM does not inspect a particular facility in a given year.
The proposed rule provides that the inspection must include, but is not
limited to, all safety equipment designed to prevent or ameliorate
fires, spillages, or other major accidents. The proposed rule would
also require that the lessee maintain records of the facility
inspections, summarize the results of those inspections, and provide
the records and result summaries to BOEM upon request.
Incident Reporting and Investigation
Sec. 585.830 What are my incident reporting requirements?
The proposed rule would correct an erroneous cross-reference in
paragraph (d) to provide the appropriate BSEE regulatory citation for
reporting oil spills.
J. 30 CFR Part 585, Subpart J--Decommissioning
Subpart I, Decommissioning, is being redesignated as subpart J to
accommodate the addition of a new subpart B, as noted in section VI.B
above.
Decommissioning Obligations and Requirements
Sec. 585.900 Who must meet the decommissioning obligations in this
subpart?
Proposed subpart J contains requirements for decommissioning all
facilities and obstructions on a lease, RUE, or ROW issued under BOEM's
renewable energy regulations. BOEM proposes to add a new paragraph (c)
establishing a limited exception to its proposed subpart J requirements
for facilities that are approved by, and subject to the decommissioning
requirements of, another Federal authority. This proposed amendment is
primarily intended to cover met buoys that would no longer require a
SAP under proposed Sec. 585.600. Such buoys would be subject to the
site clearance requirements in USACE's NWP 5 and may be subject to
financial assurance requirements, prior to deployment, at the
discretion of USACE. The USACE permit requires that met buoys that are
no longer in use are removed within 30 days. Noncompliance with the
site clearance requirements would be dealt with in accordance USACE
regulations at 33 CFR part 326, which provide for administrative
penalties and/or legal actions in conjunction with the appropriate U.S.
Attorney's Office.
BOEM believes that the USACE procedures for met buoys are an
adequate substitute for any requirements that BOEM would have otherwise
imposed under this subpart.\96\ However, in the event that USACE did
not require the removal of a met buoy deployed under a BOEM lease, BOEM
would exercise its authority to enforce the decommissioning
requirements in proposed subpart J and its enforcement options for
noncompliance by lessees in proposed subpart E.\97\
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\96\ USACE procedures are described in detail in the Permit 10
requirements contained in the final rule ``Issuance and Reissuance
of Nationwide Permits'' (82 FR 4, Jan. 6, 2017), available at the
following URL: https://www.swf.usace.army.mil/Portals/47/docs/regulatory/Permitting/Nationwide/NWP10TX.pdf.
\97\ This proposed rule also would allow FERC to substitute its
own decommissioning obligations for marine hydrokinetic projects
that it has licensed. Such projects would be sited on leases issued
by BOEM, which would retain the authority to require supplemental
financial assurance under 30 CFR 585.516(c).
---------------------------------------------------------------------------
Sec. 585.902 What are the general requirements for decommissioning for
facilities authorized under my SAP, COP, or GAP?
The proposed rule would allow BOEM to order decommissioning of
facilities earlier than 2 years following lease termination if the
facilities are no longer useful for operations. This mirrors the
corresponding ``idle iron'' authority found in the OCS oil and gas
regulations at 30 CFR 250.1703 and described for those purposes in NTL
No. 2018-G03. Idle facilities pose potential threats to the OCS
environment and potential financial liabilities if destroyed or damaged
in a future event, such as a hurricane. The cost and time to remove
damaged facilities are significantly higher than decommissioning
undamaged facilities. These increased costs have potential
ramifications on financial assurance requirements and may impact the
future financial viability of a lessee or operator.
BOEM is soliciting comments on the meaning of the term ``no longer
useful for operations'' and whether this is the best or most
appropriate standard for BOEM to use to describe facilities that should
be required to be decommissioned.
Decommissioning Applications
Sec. 585.905 When must I submit my decommissioning application?
BOEM proposes to add paragraph (e) to address the timing of
applications pursuant to the proposed ``idle iron'' authority under
Sec. 585.902.
K. 30 CFR Part 585, Subpart K--Rights-of-Use and Easement for Energy-
and Marine-Related Activities Using Existing OCS Facilities
Subpart J, Rights-of-Use and Easement for Energy- and Marine-
Related Activities Using Existing OCS Facilities, is being redesignated
as subpart K to accommodate the addition of a new subpart B, as noted
in section VI.B above. BOEM proposes technical corrections to hyphenate
``rights-of-use'' in the proposed subpart K heading.
Requesting an Alternate Use RUE
Sec. 585.1005 How do I request an Alternate Use RUE?
The proposed rule would clarify the information requirements for an
alternate use RUE and would broaden the alternate use RUE
specifications to clarify that any OCS facility could be converted to
an alternate use RUE. In contrast, the existing regulations were
written in such a manner as to make the
[[Page 6016]]
provisions of this section applicable only to existing oil and gas
facilities.
Decommissioning an Alternate Use RUE
Sec. 585.1018 Who is responsible for decommissioning an OCS facility
located on an Alternate Use RUE?
The proposed rule would correct an outdated cross-reference in
paragraph (b).
VII. Procedural Matters
A. Statutes
1. National Environmental Policy Act of 1969
BOEM has concluded that this rule as proposed falls under
categorical exclusions established by DOI and BOEM, does not constitute
a major Federal action significantly affecting the quality of the human
environment, and does not require preparation of an environmental
impact statement. Most provisions of this proposed rule fall under a
DOI categorical exclusion for ``regulations . . . that are of an
administrative, financial, legal, technical, or procedural nature[.]''
\98\ Moreover, the entirety of the proposed rule fits into the BOEM
categorical exclusion for ``[i]ssuance and modification of regulations,
Orders, Standards, Notices to Lessees and Operators . . . for which the
impacts are limited to administrative, economic, or technological
effects and the environmental impacts are minimal.'' \99\ BOEM has
determined that the proposed rule does not trigger any of the
extraordinary circumstances that would require analysis under
NEPA.\100\ A final decision on the level of NEPA analysis required will
be made at the final rule stage.
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\98\ 43 CFR 46.210(i).
\99\ Dep't of the Interior, Departmental Manual part 516,
section 15.4C(1) (2004).
\100\ See 43 CFR 46.215.
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2. Paperwork Reduction Act of 1995
This proposed rule references existing and new information
collections for regulations at 30 CFR part 585. Submission to OMB for
review under the Paperwork Reduction Act of 1995 \101\ is required.
Therefore, BOEM will submit an IC request to OMB for review and
approval and will request a new OMB control number, designated in this
discussion as ``1010-NEW.'' Once the 1010-AE04 final rule is effective,
BOEM will transfer the hour burden and non-hour costs burden from 1010-
NEW to OMB Control Number 1010-0176, which expires March 31, 2023, then
discontinue the new number associated with this rulemaking. BOEM may
neither conduct nor sponsor, nor are you required to respond to, an
information collection unless it displays a currently valid OMB control
number. The proposed regulations would establish revise current
requirements and establish new requirements in 30 CFR part 585. The
proposed rule would increase annual burden hours by 588 and number of
responses by 7; the non-hour costs would remain unchanged. The
following table and narrative provides a breakdown of the paperwork
hour burdens for this proposed rule. As discussed in the section-by-
section analysis above and in the supporting statement available at
Reginfo.gov, this rule proposes to add or revise the following:
---------------------------------------------------------------------------
\101\ 44 U.S.C. 3501 et seq.
------------------------------------------------------------------------
Reporting and
Section(s) in 30 CFR 585 recordkeeping Burden changes
requirement \1\ and/or additions
------------------------------------------------------------------------
Subpart B--The Renewable Energy Leasing Schedule
------------------------------------------------------------------------
150........................... This section New Subpart B
references the added. No new
leasing schedule annual burden
published by the hours.
Secretary.
------------------------------------------------------------------------
Subpart C--Issuance of OCS Renewable Energy Leases
------------------------------------------------------------------------
231(b)........................ Submit comments in Not considered
response to Federal IC as defined
Register notice re in 5 CFR
interest of 1320.3(h)(4).
unsolicited request Therefore, the
for a lease. burden will be
0 (-16 annual
burden hours
and -4
responses from
approved OMB
control
number).
------------------------------------------------------------------------
Subpart E--Lease and Grant Administration
------------------------------------------------------------------------
413........................... Submit merger 10 hour burdens
application, x 1 request =
negotiate with BOEM 10 annual
any inconsistencies burden hours.
on terms and
conditions.
------------------------------------------------------------------------
Subpart F--Payments and Financial Assurance Requirements
------------------------------------------------------------------------
506(c)(4)..................... Submit documentation .5 hour burden x
of the gross annual 2 submissions =
generation of 1 annual burden
electricity produced hour.
by the generating
facility on the
lease--use same form
as authorized by the
Department of Energy
U.S. Energy
Information
Administration (EIA).
(OMB Control Number
1905-0129 covers
burden to gather info
and fill out form.
BOEM's burden is for
submitting a copy.).
------------------------------------------------------------------------
Subpart G--Plans and Information Requirements
------------------------------------------------------------------------
600(a); 601(a), (b); 605 thru Within time specified -240 annual
614; 238; 810. after issuance of a burden hours (-
competitive lease or 240 burden
grant, or within time hours and -1
specified after SAP from
determination of no approved OMB
competitive interest, control
submit copies of SAP, number).
including required
information to assist
BOEM to comply with
NEPA/Coastal Zone
Management Act (CZMA)
such as hazard info,
air quality, SMS, and
all required
information,
certifications,
requests, etc., in
format specified.
615(b)........................ Submit annual report -60 annual
summarizing burden hours (-
compliance from site 60 burden hours
assessment activities. and -2 reports
from approved
OMB control
number).
------------------------------------------------------------------------
[[Page 6017]]
Subpart I--Environmental and Safety Management, Inspections, and
Facility Assessments for Activities Conducted Under SAPs, COPs, and GAPs
------------------------------------------------------------------------
810; 614; 627; 632(b); 651.... Use a Safety 35 hour burdens
Management System for x 2 submissions
all activities = 70 annual
conducted pursuant to burden hours.
a lease and make
available to BOEM
upon request. Submit
safety management
system description
with a COP, or with a
SAP or GAP, if
facilities being
installed are deemed
by BOEM to be complex
or significant.
812(b)(i), Form BOEM-NEW...... Submit safety and 82 hour burdens
environmental x 10
performance data submissions =
(Form BOEM-NEW, 820 annual
Performance Data burden hours.
Measures).
812(b)(ii).................... Provide report summary 5 annual burdens
on SMS audit, hours added to
corrective actions, existing OMB
and changes to SMS. approval (no
additional
responses).
830(d)........................ Report oil spills as Burden covered
required by BSEE 30 under BSEE 1014-
CFR 250.187. 0007. (-2
annual burden
hours and -1
report).
-----------------------------------------
Total Burden.............. 7 Responses........... 588 Hours.
------------------------------------------------------------------------
Subpart B. The proposed rule would add a new subpart B for the
renewable energy leasing schedule published by the Secretary of the
Interior. BOEM estimates no burdens for this subpart.
Subpart C. Section 585.216(c) relates to eligibility for bidding
credits as set forth in the FSN before the lease auction takes place.
Bidders must establish that they are eligible for each bidding credit
that they seek. BOEM proposes to keep the annual burden hours the same
as in the 2020 approved OMB Control Number 1010-0176 (2020 approval)
but would attribute the hours to the requirements of the bidding credit
eligibility criteria.
Section 585.231(b) relates to requests for competitive interest
during the noncompetitive leasing process. Requests for competitive
interest do not constitute an information collection under the PRA
implementing regulations at 5 CFR 1320.3(h)(4). Therefore, BOEM
proposes removing 16 annual burden hours from Sec. 585.231(b).
Subpart E. Proposed Sec. 585.413 would align the regulations with
the existing practice allowing lease and grant consolidation. BOEM
proposes to add 10 annual burden hours to the 2020 approval
attributable to Sec. 585.413 to account for submission of applications
to consolidate all or part of two or more adjacent leases or grants by
the same lessee or grant holder into one new lease or grant, and to
negotiate with BOEM on inconsistencies in terms and conditions.
Subpart F. BOEM previously did not account for burden hours
relating to Sec. 585.506(c)(4) because the required reporting of gross
annual electrical production by a generating facility uses a DOE form
under OMB Control Number 1905-0129. However, BOEM would like to receive
this form already completed for DOE. BOEM proposes to add one annual
burden hour to Sec. 585.506(c)(4).
Subpart G. Proposed Sec. 585.600(a) would significantly revise the
requirement for SAPs. Under the proposed rule, a SAP would be required
only when site assessment activities involve an engineered foundation.
BOEM would not require a SAP for floating site assessment facilities,
such as met buoys. BOEM also would have the discretion to waive certain
information requirements in a proposed plan, which could add
flexibility to the permit application process. BOEM proposes to remove
240 annual burden hours from Sec. 585.600(a).
Existing and proposed Sec. 585.615(b) relates to other reports or
notices that must be submitted periodically under an approved SAP. With
the narrowing of the SAP requirement to site assessment activities
involving an engineered foundation, BOEM estimates fewer reports or
notices would be filed under this section. BOEM proposes to remove 60
annual burden hours from Sec. 585.615(b).
The proposed rule would allow the deferral of detailed geotechnical
survey reporting from COP submission under the existing Sec.
585.626(b) to FDR submission under the proposed Sec. 585.701(a). This
change would not increase annual burden hours, though it likely would
change the allocation of existing burden hours between Sec. Sec.
585.626(b) and 585.701(a). BOEM welcomes input regarding the
appropriate reallocation of geotechnical survey reporting hours.
Subpart H. Proposed Sec. 585.700(b) would allow separate FDRs and
FIRs for major project components if an explanation is included in the
reports describing how the systems comprising the project will function
together effectively in an integrated manner in accordance with the
project design basis. BOEM welcomes input regarding the number of
annual burden hours necessary to complete this integration statement if
separate FDRs and FIRs for major components are submitted. Proposed
Sec. 585.704 would allow BOEM 20-calendar days to deem the FDR and/or
FIR submitted prior to commencing the 60-calendar day review time.
Proposed Sec. 585.704 would also allow BOEM 20-calendar days to deem
the project verification reports submitted prior to commencing the 30-
calendar day review time. This would allow BOEM 20-calendar days to
ensure completeness, identify deficiencies, and would provide BOEM with
the ability to ask for clarifications in order to meet the 60-calendar
day review time for FDRs and/or FIRs or the 30-calendar-day review time
for project verification reports. Once BOEM has made the determination
that an FDR and/or FIR or project verification report is deemed
submitted, the previous 60- or 30-day review times specified in the
current regulations would continue to remain in effect.
Subpart I. Proposed Sec. 585.810 clarifies that an SMS is required
to conduct activities pursuant to a lease, from met buoy placement and
site assessment work through decommissioning. While a description of
the SMS is required to be submitted for review by BOEM with a COP, and
for review of a SAP or GAP if the facilities being installed are deemed
by BOEM to be complex or significant, this addition makes it clear that
a structured approach to safety is both expected and required for all
lease-associated work. BOEM proposes to add -70 annual burden hours to
the 2020 approval.
Proposed Sec. 585.812(b)(i) and (ii) would add new reporting
requirements. Proposed Sec. 585.812(b)(i) would require
[[Page 6018]]
an annual summary of safety performance data covering the previous
calendar year during which site assessment, construction, operations,
or decommissioning activities occurred by submitting form BOEM-NEW,
Performance Data Measures--Renewable Energy.\102\ This form would
include company identification and number of injuries, illnesses, and
hours worked by company employees and contractors. This information
would be used to develop incident rates that would help assess
workplace safety and environmental compliance across the OCS renewable
energy industry. Incident rates would enable benchmarking of individual
projects against industry-wide performance to facilitate needed
improvement. Also, these rates would allow BOEM and BSEE to better
focus their regulatory and research programs by highlighting areas
below expected safety performance. BOEM proposes to add 820 annual
burden hours to Sec. 585.812(b)(i).
---------------------------------------------------------------------------
\102\ To see a copy of the proposed form, go to https://www.reginfo.gov, select ``Information Collection Review,'' and, in
the ``Currently under Review'' heading, select Department of the
Interior, find OMB Control Number 1010-NEW, click on the ICR
Reference Number, and click on ``View Supporting Statement and Other
Documents;'' or you may obtain a copy of the proposed form from
BOEM's Information Collection Clearance Officer, whose mailing
address and email may be found in the Addresses section of the
preamble. The proposed form also is available through this proposed
rule's docket at https://www.regulations.gov/docket?D=BOEM-2020-0033.
---------------------------------------------------------------------------
Proposed Sec. 585.812(b)(ii) would require a summary of the most
recent SMS audit, corrective actions implemented or pending because of
that audit, and an updated SMS description highlighting changes made
since the last report. This report would be due every 3 years or upon
BOEM's request. BOEM proposes to add 75 annual burden hours to Sec.
585.812(b)(ii).
For Sec. 585.830(d), BOEM is proposing to remove two burden hours
since the burdens for reporting oil spills falls under OMB Control
Number 1014-0007.
Title of Collection: Renewable Energy Modernization (Notice of
Proposed Rulemaking).
OMB Control Number: 1010-NEW.
Form Numbers:
BOEM-NEW, Performance Data Measures--Renewable Energy.
Type of Review: New.
Respondents/Affected Public: Respondents primarily would be private
sector companies interested in developing or operating OCS renewable
energy leases and grants; affected State, local, and tribal
governments; and other companies that submit information regarding OCS
renewable energy projects.
Total Estimated Number of Annual Responses: 7 responses.
Total Estimated Number of Annual Burden Hours: 588 hours.
Respondent's Obligations: Responses to information collections
under this part would be mandatory to obtain, or retain, an OCS
renewable energy lease or grant.
Frequency of Collection: The frequency of collection would vary
depending upon BOEM's decisions to issue OCS leases or grants for
renewable energy development, a company's decision to seek a lease or
grant, and the manner in which the lessee or grant holder elects to
develop its lease or grant.
Total Estimated Annual Non-Hour Burden Cost: No non-hour costs.
If this proposed rule becomes effective and OMB approves the
information collection request 1010-NEW, BOEM would revise the existing
OMB Control Number 1010-0176 for the affected subparts discussed above
and would adjust the annual burden hours accordingly. The information
collections related to 30 CFR part 585 do not include questions of a
sensitive nature. BOEM will continue to protect proprietary information
according to FOIA and DOI's implementing regulations, which address
disclosure of information to the public.\103\
---------------------------------------------------------------------------
\103\ See 43 CFR part 2 and 30 CFR 585.113.
---------------------------------------------------------------------------
In addition, the PRA requires agencies to estimate the total annual
reporting and recordkeeping non-hour cost burden resulting from the
collection of information. BOEM solicits your comments regarding non-
hour cost burdens arising from this proposed rule. For reporting and
recordkeeping only, your response should split the cost estimate into
two components: (1) total capital and startup cost component, and (2)
annual operation, maintenance, and disclosure cost component to provide
the information. You should describe the methods you use to estimate
your cost components, including system and technology acquisition,
expected useful life of capital equipment, discount rate(s), and the
period over which you incur costs. Generally, your estimates should not
include equipment or services purchased: (1) before October 1, 1995;
(2) to comply with requirements not associated with the information
collection arising from this proposed rule; (3) for reasons other than
to provide information or to keep records for the U.S. Government; or
(4) as part of customary and usual business or private practices.
As part of BOEM's continuing effort to reduce paperwork and
respondent burdens, BOEM invites the public and other Federal agencies
to comment on any aspect of this information collection, including:
(1) Is the proposed information collection necessary or useful for
BOEM to properly perform its functions?
(2) Are the estimated annual burden hour increases and decreases
resulting from the proposed rule reasonable?
(3) Is the estimated annual non-hour cost burden resulting from
this information collection reasonable?
(4) Do you have any suggestions that would enhance the quality,
clarity, or usefulness of the information to be collected?
(5) Is there a way to minimize the information collection burden on
those who must respond, such as by using appropriate automated digital,
electronic, mechanical, or other forms of information technology?
3. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) requires Federal agencies to
prepare and to provide a regulatory flexibility impact analysis when a
regulation will have a significant economic impact on a substantial
number of small entities and to consider regulatory alternatives that
will achieve the agency's goals while minimizing the burden on small
entities.\104\
---------------------------------------------------------------------------
\104\ See 5 U.S.C. 601-612.
---------------------------------------------------------------------------
When an agency issues a notice of proposed rulemaking, the RFA
requires the agency to ``describe the impact of the proposed rule on
small entities'' in its initial regulatory flexibility impact
analysis.\105\ The RFA does not require a regulatory flexibility impact
analysis when an agency certifies that the proposed rule will not
impose a significant economic impact on a substantial number of small
entities.\106\
---------------------------------------------------------------------------
\105\ 5 U.S.C. 603(a).
\106\ 5 U.S.C. 605(b).
---------------------------------------------------------------------------
(a) Description of and, Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Would Apply
This proposed rule would directly affect all current and future OCS
renewable energy developers.\107\
---------------------------------------------------------------------------
\107\ See supra note 1 for discussion of developers.
---------------------------------------------------------------------------
Renewable energy companies operating on the OCS are generally
organized under North American Industry Classification System (NAICS)
code 221115 Wind Electric Power Generation in Sector 22 (Utilities).
The size standard for determining a small business in this category is
250 employees or fewer. OCS renewable energy companies may be
financially
[[Page 6019]]
supported by investment fund portfolios. The revenue threshold for
determining a small Portfolio Management company, NAICS code 523940, is
$41.5 million.
The Small Business Administration's (SBA) Office of Advocacy
provides guidelines for complying with the RFA. The SBA's best practice
for understanding impacts to small businesses is to conduct analysis at
the firm level. In the case of OCS renewable energy, the 28 active
commercial OCS renewable energy leases are held by 10 lessees. All
these lessees are subsidiaries of large parent companies or are
majority-owned by portfolio management companies; none fit the
definition of a small firm or business. To date, companies that have
submitted bids in BOEM auctions are either large firms or partners with
large firms in joint ventures.
Developing and operating OCS wind sites requires significant
upfront capital typical of large firms or investment portfolios. Pilot-
scale commercial projects cost hundreds of millions of dollars to
install and operate, and utility-scale projects cost multiple billions
of dollars. As a result, it is unlikely that small entities will be
constructing or operating wind facilities on the OCS in the foreseeable
future.
The reduction in developmental and operational costs resulting from
this proposed rule would be available to all companies developing and
operating OCS renewable energy facilities, whether large or small.
Therefore, BOEM has determined that the proposed rule likely does not
have a significant adverse economic impact on a substantial number of
small entities.
Nonetheless, BOEM has prepared an initial regulatory impact
analysis (IRIA) to quantify the cost savings arising from this proposed
rule and solicit public comment.\108\
---------------------------------------------------------------------------
\108\ The IRIA is posted to this proposed rule's docket at
https://www.regulations.gov/docket?D=BOEM-2020-0033.
---------------------------------------------------------------------------
BOEM does not consider the potential impacts from this rule on
small fishing businesses or small coastal communities in the IRIA, as
they are not the regulated entity. BOEM does not anticipate that this
proposed regulation would have any positive or negative impacts to
these communities above those outlined in the baseline scenario.
However, BOEM requests that if small fishing industries businesses or
small coastal communities believe they are impacted as a result of this
proposed rule, they submit comments during the comment period.
(b) Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule
The proposed rule would add modest reporting, recordkeeping, and
other compliance requirements. Specifically, proposed Sec. 585.812
would require annual reporting of safety related information once an
OCS renewable energy project begins construction and triennial
reporting of safety audits and corrective actions. The information
collection burden of these reports is analyzed in section VII.A.2.
(c) Identification of All Relevant Federal Rules That May Duplicate,
Overlap or Conflict With the Proposed Rule
The proposed rule would neither conflict, duplicate, nor overlap
with any relevant Federal rules. Indeed, it would eliminate duplication
with USACE permitting requirements.
(d) Description of Significant Alternatives to the Proposed Rule
The regulatory alternatives are discussed in the accompanying IRIA.
4. Small Business Regulatory Enforcement Fairness Act
BOEM anticipates the proposed rule would have neither significant
employment nor small business impacts; nor cause major price increases
for consumers, businesses, or governments; nor significantly degrade
competition, employment, investment, productivity, innovation, or the
ability of U.S. businesses to compete against foreign businesses. It is
estimated to have an annual economic effect of $100 million or more
\109\ and, therefore, this proposed rule is a major rule under the
Small Business Regulatory Enforcement Fairness Act.\110\ This rule
seeks to enhance U.S. energy independence by reducing unnecessary
regulatory costs and uncertainty within the OCS renewable energy
industry while ensuring safety and appropriate environmental analyses
and mitigations and providing fair return to the U.S. taxpayer.
---------------------------------------------------------------------------
\109\ See infra section VII.B.2 discussion of E.O. 12866 and
E.O. 13563.
\110\ See 5 U.S.C. 804(2).
---------------------------------------------------------------------------
5. Unfunded Mandates Reform Act of 1995
This proposed rule would not impose an unfunded Federal mandate on
State, local, or tribal Governments, nor would it have a significant or
unique effect on State, local, or tribal Governments. Thus, the
proposed rule would not have disproportionate budgetary effects on
these governments. BOEM also has determined that this proposed rule
would not impose costs on the private sector of more than $182 million
in a single year.\111\ Therefore, the proposed rule does not trigger
the requirement to prepare a written statement under this act.\112\
---------------------------------------------------------------------------
\111\ The private-sector cost threshold established in UMRA in
1996 was $100 million. After adjusting for inflation, the 2022
private-sector threshold is $182 million.
\112\ See 2 U.S.C. 1532.
---------------------------------------------------------------------------
6. Congressional Review Act
Pursuant to the Congressional Review Act \113\ and OMB
guidance,\114\ the Office of Information and Regulatory Affairs (OIRA)
must decide whether this rule is a major rule as defined by that
act.\115\ Given its economic implications, OMB has determined that this
rule is significant and major. The rule has also been designated by OMB
as a significant rulemaking.
---------------------------------------------------------------------------
\113\ 5 U.S.C. 801 et seq.
\114\ Office of Mgmt. & Budget, Exec. Office of the President,
OMB M-19-14, Guidance on Compliance With the Congressional Review
Act (2019).
\115\ 5 U.S.C. 804(2).
---------------------------------------------------------------------------
B. Executive Orders
1. Executive Order 12630--Takings Implication Assessment
Under E.O. 12630 section 2(a)(1) criteria, this proposed rule would
not have takings implications. This proposed rulemaking is a Federal
action that would not interfere with constitutionally protected private
property rights. To the extent OCS renewable energy lessees and grant
holders possess private property rights under the terms of BOEM leases,
this proposed rulemaking is not expected to reduce the value of those
rights. A takings implication assessment is not required.
2. Executive Order 12866--Regulatory Planning and Review; and Executive
Order 13563--Improving Regulation and Regulatory Review
OIRA has determined that this proposed rule is a ``significant
regulatory action'' under E.O. 12866 section 3(f). BOEM has prepared an
IRIA that estimates a $1 billion net benefit (7 percent discounting)
over a 20-year period resulting from the compliance cost savings
realized by the OCS renewable energy industry.
This proposed rule would reform, streamline, reorganize, update,
and clarify existing regulations. As economic impact is realized in
cost savings by developers, it is not expected to have an adverse,
material effect on the economy, an economic sector,
[[Page 6020]]
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities. This
proposed rule would not create a serious inconsistency, or otherwise
interfere, with an action taken or planned by another agency. This
proposed rule would not materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of their recipients. OIRA has also determined that this
proposed rule is significant under E.O. 12866. This proposed rule is
promulgated under the authority granted to the Secretary in the OCS
Lands Act to authorize and regulate OCS renewable energy activities.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
systemic regulatory improvements to promote predictability, reduce
uncertainty, and leverage the best, most innovative, and least
burdensome tools for achieving regulatory ends. E.O. 13563 directs
agencies to consider regulatory approaches that reduce burdens, promote
flexibility, and maintain the public's freedom of choice when these
approaches are relevant, feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes that the best available science must
inform and guide new regulations and that an open exchange of ideas
benefits the rulemaking process. BOEM has developed this proposed rule
in a manner consistent with these requirements. E.O. 13563 also calls
for additional consideration of the regulatory impact on employment.
The proposed rule is not expected to impact employment within the OCS
renewable energy and associated industries in any material way.
The proposed rule includes changes across the renewable energy
regulatory framework. While these proposed changes are important for
reforming, streamlining, and clarifying the regulatory requirements,
BOEM was unable to quantify the impact of all the proposed changes.
Those deregulatory changes, including revisions to CVA requirements,
are analyzed qualitatively. Minor additional compliance costs are
estimated for SMS reporting.
The proposed changes would allow greater flexibility in using
decommissioning accounts. BOEM's existing regulations require full
funding of a decommissioning account before each OCS renewable energy
facility (i.e., wind turbine) is constructed. The proposed change to
Sec. 585.529 would allow incremental funding of a decommissioning
account under a BOEM-approved schedule during the operations period.
This would reduce a project's upfront capital costs, would enable a
lessee or a grant holder to invest available capital in planning and
construction (rather than tying up excessive capital for
decommissioning costs that will occur no less than 20-30 years in the
future), and would result in savings through the time value of money
concept.
For site assessment activities, the proposed rule would remove met
buoys--used primarily to collect energy resource, oceanographic,
meteorological, and other environmental data to assess OCS areas for
renewable energy development--from the reach of BOEM's regulations
requiring submission of a SAP (Sec. Sec. 585.600 through
585.618).\116\ Currently, both BOEM and USACE regulate met buoys. BOEM
proposes to eliminate its permitting requirements for met buoys because
they are unnecessarily burdensome and duplicative of USACE's NWP 5
permitting. BOEM estimates that this regulatory change would enable
significantly cheaper and quicker deployment of met buoys because a SAP
and BOEM approval would be no longer necessary. Instead, a USACE NWP 5
permit would be the only Federal approval necessary to deploy a met
buoy. BOEM believes that the USACE permitting process adequately
ensures met buoys are deployed in a safe and an environmentally
responsible manner.
---------------------------------------------------------------------------
\116\ The proposed rule would eliminate BOEM's approval
requirement for met buoys deployed both on and off a commercial
lease. The proposed change to off-lease met buoy deployment is not
analyzed quantifiably because historical activity is lacking.
---------------------------------------------------------------------------
The proposed rule also addresses geotechnical surveys, which are
required before COP submittal by Sec. 585.626. BOEM proposes to defer
certain detailed geotechnical survey requirements from COP submittal to
the FDR and FIR submittals, which occur subsequent to COP approval.
This change would give a lessee or a grant holder more time to complete
the surveys and would reduce upfront financial costs. BOEM recognizes
that the current timing of geotechnical survey requirements is
premature and limits flexibility. This proposed deferral would provide
time value of money savings to a lessee or a grant holder, who also
would benefit from more flexibility.
Existing regulations also require geotechnical core analysis for
each renewable energy facility foundation. The proposed rule would
allow a lessee or a grant holder--subject to BOEM approval--to provide
data from fewer than all facility foundation locations if they can
demonstrate that the project area consists of generally uniform,
predictable geophysical characteristics. This would allow a lessee and
a grant holder to potentially realize cost savings by reducing the
number of geotechnical investigations. For this analysis, BOEM
estimated a 10 percent reduction in the number of geotechnical
investigations needed.
The tables below summarize BOEM's estimated 20-year compliance cost
savings for the proposed changes related to decommissioning accounts,
met buoys, and geotechnical surveys. The IRIA contains additional
information on assumptions, compliance costs, savings, and
benefits.\117\
---------------------------------------------------------------------------
\117\ See supra note 100 for location of IRIA.
Table--20-Year (2023-2042) Net Present Value by Affected Category of
Regulatory Change
[Millions]
------------------------------------------------------------------------
Discounted at Discounted at
Proposed revisions 3% 7%
------------------------------------------------------------------------
Decommissioning Accounting Changes...... -$1,248.5 -$905.3
Meteorological Buoy Streamlining........ -16.3 -11.6
Geotechnical Regulatory Revisions....... -121.6 -88.2
Safety Management System Reporting...... 5.3 3.5
-------------------------------
Total............................... -1,381 -1.001.5
------------------------------------------------------------------------
[[Page 6021]]
Table--20-Year Annualized Cost Savings by Regulatory Provision Category
[Millions]
------------------------------------------------------------------------
Discounted at Discounted at
Proposed revisions 3% 7%
------------------------------------------------------------------------
Decommissioning Accounting Changes...... -$83.9 -$85.4
Meteorological Buoy Streamlining........ -1.1 -1.1
Geotechnical Regulatory Revisions....... -8.2 -8.3
Safety Management System Reporting...... 0.35 0.33
-------------------------------
Total............................... -92.8 -94.5
------------------------------------------------------------------------
3. Executive Order 12988--Civil Justice Reform
This proposed rule complies with E.O. 12988 sections 3(a) and
(b)(2) requirements. This rule was reviewed to eliminate technical
errors and ambiguity, simplify the existing regulatory framework,
minimize litigation, and provide clear legal standards.
4. Executive Order 13132--Federalism
This proposed rule would not have sufficient federalism
implications to warrant a summary impact statement under E.O. 13132
section 1(a) because it neither imposes direct compliance costs on
States; nor does it preempt State law; nor does it have substantial
direct effects on the States, nor on the relationship between the
Federal and State Governments, nor on the distribution of power and
responsibilities between various governmental levels in the United
States. Thus, a federalism impact statement is unnecessary.
5. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
BOEM strives to strengthen its government-to-government
relationship with American Indian and Alaska Native tribes through a
commitment to consultation with federally recognized tribes (Tribes)
and recognition of their right to self-governance and tribal
sovereignty. BOEM also is respectful of its responsibilities for
consultation with ANCSA corporations. BOEM has evaluated this proposed
rule under DOI's consultation policy,\118\ BOEM's tribal consultation
guidance,\119\ and the criteria in E.O. 13175. BOEM does not believe
that this proposed rule itself would have substantial direct effects on
Tribes or ANCSA corporations and, hence, has concluded that
consultation under the DOI and BOEM tribal consultation policies is not
required.
---------------------------------------------------------------------------
\118\ Dep't of the Interior, Departmental Manual part 512,
chapters 4 through 5 (2015).
\119\ Memorandum from William Y. Brown, Chief Environmental
Officer, Bureau of Ocean Energy Mgmt., to Bureau Program Chiefs and
Regional Directors (June 29, 2018), available at https://www.boem.gov/BOEM-Tribal-Consultation-Guidance/.
---------------------------------------------------------------------------
BOEM reached this determination in part because the requirements of
this proposed rule are, in sum, administrative, technical, procedural,
or interpretive in nature and they would not themselves have
foreseeable particular, substantial direct impacts on tribal resources.
That does not mean that future actions under the rule will not have
tribal implications requiring consultation. BOEM will review future
actions carefully and will invite Tribes and ANCSA Corporations to
consult when any such future actions may have a substantial direct
effect on them. BOEM will also continue outreach to strengthen
collaboration with Tribes and ANCSA corporations that have expressed an
interest in or concern about renewable energy activities on the OCS and
their impacts.
6. Executive Order 13211--Effects on the Nation's Energy Supply
Under E.O. 13211, agencies are required to prepare and submit to
OMB a Statement of Energy Effects for ``significant energy actions.''
This proposed rule does not add new regulatory compliance requirements
that would lead to adverse effects on the nation's energy supply,
distribution, or use. Rather, the regulatory changes would help reduce
compliance burdens on the OCS renewable energy industry that may hinder
the continued development or use of domestically produced energy
resources. Reduced regulatory burdens do not adversely affect
productivity, competition, or prices within the energy sector. This
rule is not a significant energy action under the definition in E.O.
13211. Therefore, a Statement of Energy Effects is not required.
7. Presidential Memorandum of June 1, 1998, on Regulation Clarity
Under the criteria in Presidential Memorandum of June 1, 1998, this
proposed rule is logically organized into easily read, short sections
using both sentences that are clearly written in the active voice and
common words rather than jargon. If you believe this proposed rule
fails these requirements, please send specific comments to BOEM by one
of the methods listed in the ADDRESSES section.
List of Subjects in 30 CFR Part 585
Administrative practice and procedure, Assessment plans, Coastal
zone, Compliance, Continental shelf, Electric power, Energy,
Environmental protection, Government leases, Intergovernmental
relations, Marine resources, Natural resources, Ocean resources,
Offshore energy, Offshore structures, Outer continental shelf,
Payments, Planning, Power resources, Renewable energy, Reporting and
recordkeeping requirements, Revenue sharing, Rights-of-way, Rights-of-
use-and-easement, Wind energy.
Laura Daniel-Davis,
Principal Deputy Assistant Secretary Land and Minerals Management.
For the reasons discussed in the preamble, the Bureau of Ocean
Energy Management proposes to amend 30 CFR part 585 as follows:
PART 585--RENEWABLE ENERGY AND ALTERNATE USES OF EXISTING
FACILITIES ON THE OUTER CONTINENTAL SHELF
0
1. The authority citation for part 585 is revised to read as follows:
Authority: 43 U.S.C. 1337(p).
Subpart A--General Provisions
0
2. Amend Sec. 585.102 by revising paragraph (a) introductory text to
read as follows:
Sec. 585.102 What are BOEM's responsibilities under this part?
(a) BOEM will ensure that any activities authorized in this part
are carried out in a manner that provides for and balances the
following goals, none
[[Page 6022]]
of which inherently outweighs or supplants any other:
* * * * *
0
3. Amend Sec. 585.103 by revising the section heading and paragraph
(a) to read as follows:
Sec. 585.103 When may BOEM prescribe or approve departures from the
regulations in this part?
(a) BOEM may prescribe or approve a departure from these
regulations when BOEM deems the departure necessary because the
applicable provision(s) as applied to a specific circumstance:
(1) Are impractical or unduly burdensome and the departure is
necessary to achieve the intended objectives of the renewable energy
program;
(2) Fail to conserve the natural resources of the OCS;
(3) Fail to protect life (including human and wildlife), property,
or the marine, coastal, or human environment; or
(4) Fail to protect sites, structures, or objects of historical or
archaeological significance.
* * * * *
0
4. Revise Sec. 585.104 to read as follows:
Sec. 585.104 Do I need a BOEM lease or other authorization to produce
or support the production of electricity or other energy product from a
renewable energy resource on the OCS?
Except as otherwise authorized by law, it is unlawful for any
person to construct, operate, or maintain any facility to produce,
transport, or support generation of electricity or other energy product
derived from a renewable energy resource on any part of the OCS, except
in accordance with the terms of a lease, easement, or ROW issued under
the OCS Lands Act. For the purposes of this section, site assessment
activities do not produce, transport, or support the generation of
electricity or other energy product.
0
5. Amend Sec. 585.105 by revising paragraph (d) to read as follows:
Sec. 585.105 What are my responsibilities under this part?
* * * * *
(d) Comply with all applicable laws and regulations, the terms of
your lease or grant under this part, reports, notices, and approved
plans prepared under this part, and any conditions imposed by BOEM
through its review of any of these reports, notices, and approved
plans, as provided in this part;
* * * * *
0
6. Amend Sec. 585.106 by revising the section heading, paragraphs (a)
introductory text, (a)(6), (b) introductory text, and (b)(3) and adding
paragraph (c) to read as follows:
Sec. 585.106 Who can acquire or hold a lease or grant under this
part?
(a) You may acquire or hold a lease or grant under this part if you
can demonstrate that you have the technical and financial capabilities
to conduct the activities authorized by the lease or grant and you are
a(n):
* * * * *
(6) State of the United States; or
* * * * *
(b) You may not acquire or hold a lease or grant under this part or
acquire an interest in a lease or grant under this part if:
* * * * *
(3) After written notice and your opportunity to be heard, BOEM
determines that:
(i) You no longer meet the qualification requirements for acquiring
or holding a lease or grant in paragraph (a) of this section and Sec.
585.107; or
(ii) You have:
(A) Violated an applicable law, regulation, order, lease or grant
provision, approved plan, or the prohibitions prescribed in a final
sale notice; or otherwise engaged in illegal activity, anti-competitive
or collusive behavior, fraud, or misrepresentation; and
(B) Failed to take timely remedial action as specified in the
notice of the proposed disqualification to re-establish eligibility to
participate in any BOEM lease or grant sale and eligibility to acquire
or hold an interest in a lease or grant under this part.
(c) So long as a party is ineligible to acquire or hold a lease or
grant under this part, it is also ineligible to participate in BOEM's
competitive and noncompetitive lease or grant issuance processes,
including auctions, conducted under this part, even as an agent for
another entity. A party can restore its eligibility by completing the
remedial action specified in the notice of the proposed
disqualification.
0
7. Amend Sec. 585.107 by revising paragraph (b) to read as follows:
Sec. 585.107 How do I show that I am qualified to be a lessee or
grant holder?
* * * * *
(b) An individual must submit a written statement of citizenship
status attesting to U.S. citizenship. It does not need to be notarized
nor give the age of the individual. A resident alien may submit a
photocopy of the form issued by the appropriate Federal immigration
authority evidencing legal status as a resident alien.
* * * * *
0
8. Revise Sec. 585.110 to read as follows:
Sec. 585.110 How do I submit plans, applications, reports, or notices
required by this part?
Unless otherwise stated, you must submit one electronic copy of all
plans, applications, reports, or notices required by this part to BOEM.
BOEM will inform you if it requires paper copies of specific documents.
Unless stated otherwise, documents should be submitted to the relevant
contacts listed on the BOEM website.
0
9. Amend Sec. 585.112 by:
0
a. Adding in alphabetical order a definition for ``Bidding credit(s)'';
0
b. Revising the definitions of ``Commercial activities'' and
``Commercial operations'';
0
c. Adding in alphabetical order definitions for ``Critical safety
system'', ``Engineered foundation'', ``Fabrication'', ``Lease area'',
``Multiple factor auction''. ``Project design envelope'', ``Provisional
winner'', and ``Receipt''; and
0
d. Revising the definition of ``Site assessment activities''.
The additions and revisions read as follows:
Sec. 585.112 Definitions.
* * * * *
Bidding credit(s) means the value assigned by BOEM, expressed in
monetary terms, to the factors or actions demonstrated, or committed
to, by a bidder at a BOEM lease auction during the competitive lease
award process. The type(s) and value(s) of any bidding credit(s)
awarded to any given bidder will be set forth in the Final Sale Notice.
* * * * *
Commercial activities means, under renewable energy leases and
grants, all activities associated with the generation, storage, or
transmission of electricity or other energy product from a renewable
energy project on the OCS, and where such electricity or other energy
product is intended for distribution, sale, or other commercial use,
except for electricity or other energy product distributed or sold
pursuant either to technology-testing activities on a limited lease or
facilities testing on a commercial lease needed to prepare a final FIR.
This term also includes activities associated with such development,
including initial site characterization and assessment, facility
construction, and project decommissioning.
* * * * *
Commercial operations means the generation of electricity or other
energy product for commercial use, sale, and distribution on a
commercial lease, but
[[Page 6023]]
does not mean either generation needed to prepare a final FIR or
generation for testing purposes, provided the electricity generated for
such testing is not sold on a commercial basis.
Critical Safety System means safety systems and equipment designed
to prevent or ameliorate major accidents that could result in harm to
health, safety, or the environment in the area of your facilities.
* * * * *
Engineered foundation means any structure installed on the seabed
using a fixed-bottom foundation constructed according to a professional
engineering design (based on an assessment of relevant sedimentary,
meteorological, and oceanographic conditions).
Fabrication means the cutting, fitting, welding, or other assembly
of project elements of a custom design conforming to project-specific
requirements. Fabrication does not include the procurement of discrete
parts of the project that are commercially available in standardized
form or with type-certified components.
* * * * *
Lease area means an area on the OCS that BOEM has identified for
leasing for potential development of renewable energy resources.
* * * * *
Multiple factor auction means an auction that involves the use of
bidding credits to incentivize goals or actions that support public
policy objectives or maximize public benefits through the competitive
leasing auction process. For any multiple factor auction, the monetary
value of the bidding credits, if any, would be added to the value of
the cash bid to determine the highest bidder.
* * * * *
Project Design Envelope (PDE) is means a reasonable range of design
parameters proposed in a lessee's plan for components of the project,
such as type, dimensions, and number of wind turbine generators;
foundation type; location of the export cable route; location of an
onshore substation; location of the grid connection point; and
construction methods and timing.
* * * * *
Provisional winner means a bidder that BOEM determines at the
conclusion of the auction to have submitted the winning bid. The
provisional winner becomes the winning bidder after the favorable
completion of BOEM's bid review, Department of Justice antitrust
review, bidder obligations under Sec. 585.225, and any appeals process
under Sec. 585.118(c).
Receipt, as used in this part to describe the time when a document
is received by any party in the absence of documentation to the
contrary, is deemed to have taken place: 5-business days after the date
the document was given to the U.S. Postal Service (or deposited in one
of its mailboxes), properly addressed and with proper postage affixed,
or was given to a delivery service (or deposited in one of its
receptacles), properly addressed and with the delivery cost prepaid;
or, on the date on which the document was properly addressed and sent
electronically. This definition also applies to variants of the words
``receipt'' and ``receive'' where those terms are used in this part to
describe the receipt of a document when the timing of receipt triggers
a regulatory time period or consequence.
* * * * *
Site assessment activities mean those initial activities conducted
to assess an area on the OCS, such as resource assessment surveys
(e.g., meteorological and oceanographic) or technology testing,
involving the installation of bottom-founded facilities.
* * * * *
0
10. Amend Sec. 585.113 by revising paragraph (b)(1)(i) to read as
follows:
Sec. 585.113 How will data and information obtained by BOEM under
this part be disclosed to the public?
* * * * *
(b) * * *
------------------------------------------------------------------------
Then BOEM will review data
If you have a . . . and information for possible
release:
------------------------------------------------------------------------
(1) Commercial lease...................... (i) 3 years after the
initiation of commercial
operations or.
* * * * *
------------------------------------------------------------------------
* * * * *
0
11. Amend Sec. 585.114 by revising paragraphs (e)(2) through (10) and
adding paragraph (a)(11) to read as follows:
Sec. 585.114 Paperwork Reduction Act statements--information
collection.
* * * * *
(e) * * *
------------------------------------------------------------------------
30 CFR 585 subpart, title,
and/or BOEM form (OMB Reasons for collecting information and
control No.) how used
------------------------------------------------------------------------
* * * * * * *
(2) Subpart B--The Renewable To enable BOEM to publish a proposed five-
Energy Leasing Schedule. year leasing schedule for the OCS
renewable energy program.
(3) Subpart C--Issuance of To provide BOEM with information needed
OCS Renewable Energy Leases. to determine when to use a competitive
process for issuing a renewable energy
lease, to identify auction formats and
bidding systems and variables that we
may use when that determination is
affirmative, and to determine the terms
under which we will issue renewable
energy leases.
(4) Subpart D--Rights-of-Way To issue ROW grants and RUE grants for
Grants and Rights-of-Use and OCS renewable energy activities that are
Easement Grants for not associated with a BOEM-issued
Renewable Energy Activities. renewable energy lease.
(5) Subpart E--Lease and To ensure compliance with regulations
Grant Administration. pertaining to a lease or grant,
including designation of operator,
assignment, segregation, consolidation,
suspension, renewal, termination,
relinquishment, and cancellation.
(6) Subpart F--Payments and To ensure that payments and financial
Financial Assurance assurance payments for renewable energy
Requirements. leases comply with subpart F.
(7) Subpart G--Plans and To enable BOEM to comply with the
Information Requirements. National Environmental Policy Act
(NEPA), the Coastal Zone Management Act
(CZMA), and other Federal laws and to
ensure the safety of the environment on
the OCS.
(8) Subpart H--Facility To enable BOEM to review the final
Design, Fabrication, and design, fabrication, and installation of
Installation. facilities on a lease or grant to ensure
that these facilities are designed,
fabricated, and installed according to
appropriate standards in compliance with
BOEM regulations, and where applicable,
the approved plan.
[[Page 6024]]
(9) Subpart I--Environmental To ensure that lease and grant operations
and Safety Management, are conducted in a manner that is safe
Inspections, and Facility and protects the environment. To ensure
Assessments for Activities compliance with other Federal laws,
Conducted Under SAPs, COPs, these regulations, the lease or grant,
and GAPs. and approved plans.
(10) Subpart J-- To determine that decommissioning
Decommissioning. activities comply with regulatory
requirements and approvals. To ensure
that site clearance and platform or
pipeline removal are properly performed
to protect marine life and the
environment and do not conflict with
other users of the OCS.
(11) Subpart K--Rights-of-Use To enable BOEM to review information
and Easement for Energy- and regarding the design, installation, and
Marine-Related Activities operation of RUEs on the OCS, to ensure
Using Existing OCS that RUE operations are safe and protect
Facilities. the human, marine, and coastal
environment. To ensure compliance with
other Federal laws, these regulations,
the RUE grant, and, where applicable,
the approved plan.
------------------------------------------------------------------------
0
12. Revise Sec. 585.116 to read as follows:
Sec. 585.116 Requests for information.
BOEM may publish a request for information (RFI) in the Federal
Register for the following reasons:
(a) To solicit information from industry, State and local agencies,
federally recognized Tribes, and other interested entities for
evaluating the offshore renewable energy industry, including the
identification of potential challenges or obstacles to its continued
development. An RFI may relate to the identification of environmental,
technical, regulatory, or economic matters that promote or detract from
continued development of renewable energy technologies on the OCS. BOEM
may use the information received to refine its renewable energy
program, including to facilitate OCS renewable energy development in a
safe and environmentally responsible manner and to ensure a fair return
to the United States for use of the OCS.
(b) To assess interest in leasing all or part of the OCS for
activities authorized in this part.
(c) To determine whether there is competitive interest in a
specific OCS renewable energy proposal received by BOEM, such as an
unsolicited request for a lease under Sec. 585.231(b) or a RUE or ROW
grant under Sec. 585.307(a).
(d) To seek other information that BOEM needs for this program.
0
13. Revise Sec. 585.118 to read as follows:
Sec. 585.118 What are my appeal rights?
(a) Except as stated in paragraph (c) of this section, any party
adversely affected by a final decision issued by BOEM under this part
may appeal that decision to the Interior Board of Land Appeals (IBLA),
under part 590 of this chapter and 43 CFR part 4, subpart E.
(b) Any final decision will remain in full force and effect during
the pendency of an appeal unless a stay is granted under 43 CFR part 4.
(c) A bidder adversely affected by BOEM's determination of a
provisional winner made under this part may appeal to the BOEM
Director; but decisions determining a provisional winner may not be
appealed to the IBLA.
(1) A bidder that elects to appeal a provisional winner selection
decision must file a written appeal with the Director within 15
business days after receipt of the decision.
(2) Such appeal must be accompanied by a statement of reasons.
Before reversing a provisional winner selection decision, the Director
will provide the provisional winner a reasonable opportunity to respond
in writing to the appellant's statement of reasons. The Director will
issue a written determination either affirming or reversing the
decision. The Director's decision is not appealable to the IBLA under
this section.
(3) BOEM will not execute a lease or grant until the 15-business-
day appeal period closes and all timely filed appeals are resolved.
(4) The review authority of the Office of Hearings and Appeals does
not apply to either the provisional winner selection decisions made
under this part or the Director's final determination affirming or
reversing a provisional winner selection decision.
Subparts B Through J [Redesignated as Subparts C Through K]
0
14. Redesignate subparts B through J as subparts C through K.
0
15. Add new subpart B, consisting of Sec. 585.150, to read as follows:
Subpart B--The Renewable Energy Leasing Schedule
Sec. 585.150 What is the renewable energy leasing schedule?
At least once every 2 years, the Secretary will publish a schedule
with a list of locations under consideration for leasing, along with a
projection of when lease sales are anticipated to occur for the 5-year
period following the schedule's publication. This schedule will include
a general description of the area covered by each proposed lease sale,
the calendar year in which each lease sale is projected to occur, and
the reasons for any changes made to the previous schedule. Any proposed
lease sale covered by the schedule will be subject to all applicable
regulations, including area identification, coordination with relevant
parties, and applicable environmental reviews.
Subpart C--Issuance of OCS Renewable Energy Leases
0
16. Revise Sec. 585.202 to read as follows:
Sec. 585.202 What types of leases will BOEM issue?
BOEM may issue commercial or limited leases for OCS activities
under Sec. 585.104. BOEM may issue a lease for OCS renewable energy
research activities under Sec. 585.238.
0
17. Revise Sec. 585.203 to read as follows:
Sec. 585.203 With whom will BOEM consult before issuance of leases?
For leases issued under this part, through either the competitive
or noncompetitive process, BOEM, prior to issuing the lease, will
coordinate and consult with relevant Federal agencies (including, in
particular, those agencies involved in planning activities that are
undertaken to avoid or minimize conflicts among users and maximize the
economic and ecological benefits of the OCS, including multifaceted
spatial planning efforts), the Governor of any affected State, the
executive of any affected local government, and any affected Indian
Tribe, as directed by subsections 8(p)(4) and (7) of the OCS Lands Act
or other relevant Federal laws. Federal statutes that require BOEM to
consult with interested parties or Federal agencies or to respond to
findings of those agencies, include the Endangered Species Act (ESA)
and the Magnuson-Stevens Fishery Conservation and Management Act
[[Page 6025]]
(MSA). BOEM also engages in consultation with state and tribal historic
preservation officers pursuant to the National Historic Preservation
Act (NHPA).
0
18. Revise the undesignated center heading that appears before Sec.
585.210 and revise Sec. 585.210 to read as follows:
Competitive Lease Award Process--Pre-Auction Provisions
Sec. 585.210 What are the steps in BOEM's competitive lease award
process?
(a) BOEM may publish an RFI under Sec. 585.116.
(b) BOEM will award leases through a competitive lease award
process unless competitive interest does not exist. BOEM will publish
details for each auction and lease through appropriate notices in the
Federal Register. Each competitive lease award process will include the
following steps:
(1) Call for Information and Nominations (Call). BOEM will publish
a Call in the Federal Register requesting information to determine
qualifications of prospective bidders and interest in preliminarily
identified OCS lease areas.
(2) Area Identification. BOEM will identify OCS areas for leasing
consideration and related analysis in consultation with appropriate
Federal agencies, State and local Governments, federally recognized
Tribes, Alaska Native Claims Settlement Act (ANCSA) corporations, and
other interested parties.
(3) Proposed Sale Notice (PSN). BOEM will publish a PSN, or a
notice of its availability, in the Federal Register, announcing BOEM's
intention to conduct an auction for prospective lease areas. The PSN
will set forth provisions and information concerning the proposed
auction and lease, and will invite stakeholder comments.
(4) Final Sale Notice (FSN). BOEM will publish an FSN, or a notice
of its availability, in the Federal Register setting forth final
information concerning the auction and lease.
(5) Auction. BOEM will hold an auction under the regulations in
this part and the FSN.
(6) Lease Award. BOEM will award leases subsequent to the
completion of the aforementioned steps under the regulations in this
part and the FSN.
0
19. Revise Sec. 585.211 to read as follows:
Sec. 585.211 What is the Call?
(a) The Call is a notice that BOEM will publish in the Federal
Register requesting responses from stakeholders interested in bidding
on designated OCS areas and comments from interested and potentially
affected parties. The responses may inform the area identification
process and will enable BOEM to determine whether there exists
competitive interest in the proposed lease area. BOEM may request
additional information from stakeholders related to environmental,
economic, and other issues.
(b) The Call may include the following:
(1) The areas that BOEM has preliminarily identified for leasing;
(2) A request for comments concerning geological conditions;
archaeological sites on the seabed or nearshore; multiple uses of the
proposed leasing area (including, for example, navigation, recreation,
military, and fisheries); and other socioeconomic, biological, and
environmental information;
(3) Request for comments regarding feasibility for development,
including the energy resource and opportunity for grid connection;
(4) Possible lease terms and conditions;
(5) A request to potential bidders to nominate one or more areas
for a commercial renewable energy lease within the preliminarily
identified leasing areas. Such nominations must include:
(i) The specific OCS blocks that the respondent is interested in
leasing;
(ii) A general description of the respondent's objectives and how
respondent proposes to achieve those objectives;
(iii) A preliminary schedule of the respondent's proposed
activities, including those potentially leading to commercial
operations, to the extent known;
(iv) Information regarding respondent's coordination, or intent to
coordinate, with any other entity for the purposes of acquiring a lease
from BOEM, if applicable;
(v) Documentation demonstrating the respondent's qualification to
acquire a lease or grant as specified in Sec. 585.107;
(vi) Available and pertinent information concerning renewable
energy and environmental conditions in the nominated areas, including
energy and resource data and information used to evaluate the areas;
and
(vii) Any additional information requested by BOEM in the Call;
(c) Respondents have 45 calendar days from the date the Call is
published in the Federal Register to reply, unless BOEM specifies
another time period, to be no less than 30 calendar days, in the Call.
(d) BOEM may use the information received in response to a Call to:
(1) Identify lease areas;
(2) Develop options for its lease provisions (e.g., stipulations,
payments, terms, and conditions);
(3) Inform its environmental analysis conducted under applicable
Federal requirements, including, but not limited to, NEPA, ESA, and
CZMA; and
(4) Determine whether competitive interest exists in all or a
portion of any potential lease area. If BOEM determines no competitive
interest exists, BOEM may follow the noncompetitive leasing process set
forth in Sec. 585.231(d) through (k).
0
20. Revise Sec. 585.212 to read as follows:
Sec. 585.212 What is area identification?
(a) Area identification is the process by which BOEM delineates one
or more OCS areas for leasing consideration and environmental analysis
if the areas appear appropriate for renewable energy development. This
process is based on an area's relevant attributes, such as other uses
of the area, environmental factors or characteristics, stakeholder
comments, industry nominations, feasibility for development, and other
relevant information. BOEM consults with interested parties during this
process as specified in Sec. 585.210(b)(2).
(b) BOEM may consider areas nominated by respondents to a Call and
other areas determined appropriate for leasing.
(c) For the identified areas, BOEM will evaluate:
(1) The potential effects of leasing the identified areas on the
human, marine, and coastal environments. BOEM may develop measures,
including lease stipulations, to mitigate potential adverse impacts;
and
(2) The feasibility of development.
(d) BOEM may hold public hearings on the environmental analyses
associated with leasing the identified areas, after appropriate notice.
(e) At the end of the area identification, BOEM may offer selected
areas for leasing.
0
21. Revise Sec. 585.213 to read as follows:
Sec. 585.213 What information is included in the PSN?
(a) The PSN is a notice that BOEM will publish in the Federal
Register for each prospective auction. The PSN will request public
comment on the items listed in this section. Public comments will
inform BOEM's decisions regarding auction format and lease terms and
conditions. At a minimum, the PSN will include or describe the
availability of information pertaining to:
(1) The proposed leases to be offered, including:
[[Page 6026]]
(i) The proposed lease areas, including size and location;
(ii) The proposed lease terms and conditions, including the
proposed rental rate and operating fee rate;
(iii) Other proposed payment requirements, as applicable;
(iv) Proposed requirements for performance under the lease, such as
site-specific lease stipulations and environmental mitigation measures;
(2) Steps a bidder must take to obtain and maintain eligibility to
participate in the auction (e.g., financial forms, bid deposits);
(3) The proposed availability and potential value of bidding
credit(s), if any are offered, and the actions or commitments required
to obtain them;
(4) A detailed description of the proposed auction format and
procedures as further described in Sec. 585.223;
(5) The maximum number or specific sets of lease areas that any
given bidder may be allowed to bid on or to acquire in an auction, if
applicable;
(6) Lease award procedures, including how and when a lease will be
awarded and executed, and how BOEM will address unsuccessful bids and
applications;
(7) A copy of, or a reference to, the official BOEM lease form; and
(8) Other relevant matters, as determined by BOEM.
(b) The PSN may be used to gauge competitive interest by requiring
prospective bidders to reaffirm their intent to participate in the
auction as a prerequisite for continued eligibility.
(c) A prospective bidder is encouraged to identify in its comments
any specific proposed terms and conditions in the PSN that may preclude
its participation in the auction.
(d) The PSN's public comment period is 60 calendar days from the
date of its publication in the Federal Register, unless BOEM specifies
another time period of not less than 30 calendar days in the PSN.
(e) BOEM will notify any potentially affected States, local
governments, Alaska Native and American Indian Tribes, and ANCSA
corporations of the PSN's publication, and will provide copies of the
PSN to these entities upon written request.
0
22. Revise Sec. 585.214 to read as follows:
Sec. 585.214 What information is included in the FSN?
(a) The FSN is a notice that BOEM will publish in the Federal
Register at least 30 calendar days before each prospective auction. The
FSN will describe the final auction details and will include or
describe the availability of information pertaining to:
(1) The leases to be offered, including:
(i) The lease areas, including size and location;
(ii) Lease terms and conditions, including the rental rate and the
operating fee rate;
(iii) Other payment requirements, as applicable;
(iv) Requirements for performance under the lease, including site-
specific lease stipulations and environmental mitigation measures;
(2) Steps a bidder must take to ensure eligibility to participate
in the auction (e.g., financial forms, bid deposits);
(3) The availability and potential value of bidding credit(s), if
any are offered, and the actions or commitments required to obtain
them.
(4) A detailed description of the auction format and procedures as
further described in Sec. 585.223;
(5) The maximum number or specific sets of lease areas that any
given bidder may be allowed to bid on or to acquire in an auction, if
applicable;
(6) Lease award procedures, including how and when a lease will be
awarded and executed, and how BOEM will handle unsuccessful bids and
applications;
(7) A copy of, or a reference to, the official BOEM lease form; and
(8) Other relevant matters as determined by BOEM.
(b) The terms of the FSN may differ from the proposed terms of the
PSN.
0
23. Revise Sec. 585.215 to read as follows:
Sec. 585.215 What may BOEM do to assess whether competitive interest
for a lease area still exists before the auction?
(a) At any time BOEM has reason to believe that competitive
interest in any lease area no longer exists before the area's auction,
BOEM may issue a notice in the Federal Register, as described in Sec.
585.116, requesting information regarding competitive interest in that
area. BOEM will consider respondents' comments to determine whether
competitive interest in that area remains. BOEM may decide to end the
competitive process for any area if it determines that competitive
interest no longer exists.
(b) If BOEM determines after considering respondents' comments to
such a notice that competitive interest remains, BOEM will continue
with the competitive process set forth in Sec. Sec. 585.210 through
585.226.
(c) If BOEM determines at any time before the auction that only a
single party remains interested in a lease area, BOEM may proceed
either with the auction or with the noncompetitive process set forth in
Sec. 585.231(d) through (k) following payment by that party of the
acquisition fee specified in Sec. 585.502(a).
0
24. Revise Sec. 585.216 to read as follows:
Sec. 585.216 How are bidding credits awarded and used?
(a) BOEM will determine the highest bid, taking into account the
combined value of the monetary (cash) component and the non-monetary
component(s), represented by bidding credits. The PSN and FSN will
explain the following details, if bidding credit(s) are available for
that auction:
(1) Eligibility and application requirements;
(2) The value of each available bidding credit, which will be
either a sum certain or a percentage of the cash bid; and
(3) Procedures for applying each available bidding credit to bids
submitted during the auction.
(b) Eligibility for bidding credits must be established in advance
of any lease auction, in accordance with the specifications of the FSN.
Such eligibility may be based on actions that the bidder has already
undertaken or actions that it has committed to undertake in the future,
provided that BOEM has agreed to the terms by which such a commitment
will be made. BOEM may offer bidding credits for any of the following:
(1) Power purchase agreements;
(2) Eligibility for, or applicability of, renewable energy credits
or subsidies;
(3) Development agreements by a potential lessee that facilitate
shared transmission solutions and grid interconnection;
(4) Technical merit, timeliness, or financing and economic
considerations;
(5) Environmental considerations, public benefits, or compatibility
with State and local needs;
(6) Agreements or commitments by the developer that would
facilitate OCS renewable energy development or other OCSLA goals; or
(7) Any other factor or criteria to further development of offshore
renewable energy, as identified by BOEM in the PSN and FSN.
(c) Before the auction, bidders seeking to use bidding credits must
establish that they meet the eligibility criteria for each bidding
credit according to the FSN provisions.
(d) Before the auction, BOEM will determine each bidder's
eligibility for bidding credits, and the value of those bidding
credits, and will inform each eligible bidder of the value of the
bidding credits to which it may be entitled.
[[Page 6027]]
(e) A provisional winner who is awarded bidding credits must pay an
amount equal to the cash component of its winning bid less any bid
deposit retained by BOEM under Sec. 585.501.
0
25. Revise the undesignated center heading that appears before Sec.
585.220 and revise Sec. 585.220 to read as follows:
Competitive Lease Award Process--Auction Provisions
Sec. 585.220 How will BOEM award leases competitively?
(a) BOEM will award leases competitively using an objective, fair,
reasonable, and competitive auction process that provides a fair return
to the United States. As described in the FSN, leases will be awarded
to the highest bidder.
(b) BOEM may use any analog or digital method to conduct the
auction. The specific process and procedural details for each auction
will be noticed in the PSN and finalized in the FSN.
0
26. Revise Sec. 585.221 to read as follows:
Sec. 585.221 What general provisions apply to all auctions?
(a) If BOEM determines competitive interest exists to develop a
renewable energy resource in any OCS area and decides to issue a lease
for that area, BOEM will conduct an auction to award the lease.
(b) The auction's format, procedures, and other details will be
specified in the FSN, as outlined in Sec. 585.214. Possible auction
formats include, but are not limited to, sealed bidding and ascending
bidding.
(c) The FSN will specify the potential use of alternatives if the
primary auction method, system, or mechanism malfunctions.
Alternatively, BOEM may take action consistent with paragraph (d) of
this section until the malfunction is resolved.
(d) Any time before a provisional winner is determined, BOEM may
delay, suspend, or cancel an auction due to a natural or man-made
disaster, technical malfunction, security breach, unlawful bidding
activity, administrative necessity, or any other reason that BOEM
determines may adversely affect the fair and efficient conduct of the
auction. In its discretion, BOEM may restart the auction at whatever
point it deems appropriate, reasonable, fair, and efficient for all
participants; or, alternatively, BOEM may cancel the auction in its
entirety.
(e) BOEM will determine the provisional winner for each lease area
under the auction rules and bidding procedures prescribed in the FSN.
0
27. Revise Sec. 585.222 to read as follows:
Sec. 585.222 What other auction rules must bidders follow?
(a) Bidders must submit a deposit to participate in an auction
under Sec. 585.501, unless otherwise specified in the FSN. A
provisional winner's bid deposit will be credited toward the balance
due on its bid.
(b) Only bidders qualified by BOEM under Sec. Sec. 585.106 and
585.107 are permitted to bid during an auction.
(c) Only an authorized agent may act on a bidder's behalf during an
auction. Bidders must submit the names of their authorized agents to
BOEM before the auction, as prescribed in the FSN.
(d) Each bidder must follow the auction process specified in the
FSN and may not take any action to disrupt or alter the process beyond
its intended function.
(e) A bidder is responsible for immediately contacting BOEM if it
is unable to submit its bid for any reason during an auction. If a
bidder fails to timely notify BOEM of its inability to bid, it may not
dispute the auction or lease award on that basis. If a bidder timely
notifies BOEM of its inability to submit a bid, BOEM, in its
discretion, may suspend the auction, continue the auction using an
alternative method, or continue the auction without the participation
of the affected bidder.
(f) Bidders may not disclose their auction strategies or economic
valuations of a lease area to other bidders listed in the FSN.
0
28. Revise Sec. 585.223 to read as follows:
Sec. 585.223 What supplemental information will BOEM provide in a PSN
and FSN?
(a) In addition to the information described in Sec. Sec. 585.213
and 585.214, BOEM may provide the following auction information, as
appropriate, in the PSN and FSN:
(1) Bidding instructions, procedures, and systems, including the
bid variables. How the auction will be conducted and what systems and
procedures will be utilized.
(2) Bid deposit. The amount a bidder must pay under Sec. 585.501
to be eligible to bid. The FSN will prescribe the process and deadline
for submitting a bid deposit.
(3) Mock auction. Notice of a practice auction before the actual
auction. Only bidders eligible for the actual auction will be permitted
to participate in the mock (i.e., practice) auction.
(4) Auction date, starting time and location. The starting time
will include the relevant time zone, and the location will indicate
where the auction will take place.
(5) Minimum bid. The price at which the bidding will start.
(6) Information BOEM will release to bidders between rounds. This
information may include prior round results and other updates.
(7) Tie-breaking provision. This provision describes the method
that BOEM will use to break a tie between two or more identical high
bids offered for the same lease area, or package of lease areas.
(8) Next highest bidder. The method that BOEM will use to determine
the next highest bidder of a completed auction in the event the
provisional winner fails to meet its obligations or is unable to
acquire a lease for any reason, or if a competitively issued lease or
any portion thereof is relinquished or cancelled within six months of
the auction.
(b) The list in paragraph (a) of this section is not exhaustive.
BOEM may include in the FSN any other information relevant to that
auction.
0
29. Add an undesignated center heading before Sec. 585.224 and revise
Sec. 585.224 to read as follows:
Competitive Lease Award Process--Post-Auction Provisions
Sec. 585.224 What will BOEM do after the auction?
(a) At the conclusion of the auction, BOEM will:
(1) Declare the bidding closed.
(2) Assess whether the bids meet the requirements of BOEM's
regulations and the FSN. BOEM may disqualify bids based on this review.
(3) Under 43 U.S.C. 1337(c), provide the Department of Justice, in
consultation with the Federal Trade Commission, the opportunity to
conduct an antitrust review of the lease sale results. BOEM may
disqualify bids based on the results of this review.
(4) BOEM will declare the provisional winner of each lease area.
(b) BOEM may reject any and all bids received, regardless of the
amount offered.
(c) BOEM will accept or reject bids within 90 calendar days of
auction closure; BOEM may extend that time by notice to bidders within
15 calendar days before the 90-calendar day period ends.
(d) BOEM will deem rejected any bid not accepted within the 90-
calendar-day period, or any extension. BOEM will provide each rejected
bidder a written explanation for the rejection and will refund, without
interest, any monies deposited by the rejected bidder.
[[Page 6028]]
(e) BOEM may withdraw all or part of a lease area from the lease
sale between auction closure and lease execution. In the event that a
portion of the lease area is withdrawn, the provisional winner has the
option to refuse the lease without penalty, to propose new lease terms
for BOEM's concurrence, or to accept the lease with the reduced area.
(f) BOEM may re-auction any lease area or portions thereof that
remain unsold at the conclusion of an auction. BOEM may restart the
competitive leasing process at any point in the process set forth in
Sec. 585.210 that it deems reasonable and appropriate (e.g., RFI,
Call, area identification, PSN, or FSN).
0
30. Revise Sec. 585.225 to read as follows:
Sec. 585.225 What happens if BOEM accepts a bid?
(a) BOEM will identify and notify the lease area's provisional
winner of the amount due on each winning bid, which equals the cash
component of the provisional winner's bid less its bid deposit retained
by BOEM under Sec. 585.501 and paragraph (c) of this section. BOEM
will provide three unsigned copies of the lease to the provisional
winner.
(b) Within 10 business days after receipt of the unsigned copies,
or as otherwise specified by BOEM under paragraph (d) of this section,
the provisional winner must:
(1) Execute all three copies of the lease and return them to BOEM;
(2) File financial assurance as required by Sec. Sec. 585.515
through 585.537; and
(3) Pay the amount due.
(c) When the bid deposit exceeds the amount due, BOEM will refund
the overage without interest.
(d) A provisional winner may request in writing an extension of the
10-day time limit in paragraph (b) of this section. BOEM, in its
discretion, may grant such a request.
(e) BOEM will execute the lease by signing the three returned
copies on behalf of the United States only after the provisional winner
completes the requirements in paragraph (b) of this section and any
appeals timely filed under Sec. 585.118(c)(1) have been resolved.
After BOEM executes the lease, the provisional winner becomes the
winning bidder, and BOEM will send the winning bidder one fully
executed copy of the lease. The lease takes effect as set forth in
Sec. 585.237.
(f) The winning bidder must pay the first 12 months' rent under
Sec. 585.503(a) within 45-calendar days after receiving a copy of the
executed lease from BOEM.
(g) In the event that a lessee does not meet the commitments it
made to obtain any bidding credits, the lessee will be required to
repay the value of the bidding credits that it received, adjusted for
inflation.
0
31. Add Sec. 585.226 to read as follows:
Sec. 585.226 What happens if the provisional winner fails to meet its
obligations?
(a) If BOEM determines that a provisional winner has failed to
timely complete the steps outlined in Sec. 585.225(b) or Sec.
585.316, or has otherwise failed to comply with applicable laws,
regulations, or FSN provisions, BOEM may take one or more of the
following actions:
(1) Decline to execute the applicable lease.
(2) Decline to execute the lease for any other lease areas that the
provisional winner won during the auction.
(3) Require forfeiture of the bid deposit. In the event the bid
deposit exceeds the amount of the winning bid, BOEM would limit the
required forfeiture to the lesser amount.
(4) Refer the matter to the Department of the Interior's
Administrative Remedies Division for suspension or debarment review
pursuant to 2 CFR part 180 as implemented at 2 CFR part 1400.
(5) Pursue any other remedy available.
(b) If BOEM declines to execute a lease with the provisional winner
under paragraph (a) of this section, BOEM may decide to select a new
provisional winner by either repeating the auction under Sec.
585.224(f), or pursuant to the procedures in Sec. 585.224(a)(3), by
selecting the next highest bid submitted during the auction, or by
using other procedures specified in the FSN.
(c) BOEM's decisions under this section are appealable under Sec.
585.118(a).
0
32. Revise Sec. 585.231to read as follows:
Sec. 585.231 Will BOEM issue leases noncompetitively?
(a) BOEM will consider unsolicited requests for a lease on a case-
by-case basis and may issue a lease noncompetitively in accordance with
this part. BOEM will issue a lease noncompetitively only if it has
determined after public notice that no competitive interest exists.
BOEM will not consider an unsolicited request for a lease under this
part that is proposed in a lease area that is scheduled for a lease
auction under this part.
(b) At BOEM's discretion, BOEM may issue an RFI under Sec. 585.116
relating to your unsolicited lease request and will consider comments
received to determine if competitive interest exists. If BOEM decides
not to issue an RFI and, therefore, not to continue processing your
unsolicited lease request, it will refund your acquisition fee.
(c) If BOEM determines that competitive interest exists in the
lease area:
(1) BOEM will proceed with the competitive process set forth in
Sec. Sec. 585.210 through 585.226;
(2) If you submit a bid for the lease area in a competitive lease
sale, your acquisition fee will be applied to the deposit for your
bonus bid; and
(3) If you do not submit a bid for the lease area in a competitive
lease sale, BOEM will not refund your acquisition fee.
(d) If BOEM determines that there is no competitive interest in a
lease and that further investigation of the area is in the public
interest, it will:
(1) Publish in the Federal Register a determination of no
competitive interest, and
(2) Prepare and provide you with a written estimate of the proposed
fee to pay for the processing costs under Sec. 585.111, including any
environmental review that BOEM may require before lease issuance.
(3) Conduct environmental reviews required by Federal law and
consult with affected Federal agencies, State and local governments,
and Native Alaskan and Indian Tribes.
(e) The following deadlines apply after issuance of a determination
of no competitive interest:
(1) Within 90 calendar days of receiving the written estimate of
the fee, or longer (as determined at BOEM's discretion), you must pay
the fee for any environmental review under Sec. 585.111. Failure to
pay the required fee may result in withdrawal of the determination of
no competitive interest.
(2) A determination of no competitive interest expires two years
after its publication, unless BOEM determines that it should be
extended for good cause. BOEM reserves the right to withdraw a
determination of no competitive interest before it expires if BOEM
determines that you have failed to exercise due diligence in obtaining
a lease.
(f) After BOEM publishes the determination of no competitive
interest, you will be responsible for submitting any consistency
certification and necessary data and information in a timely manner to
the applicable State
[[Page 6029]]
CZMA agencies and BOEM pursuant to 15 CFR part 930, subpart D.
(g) After completing its review of your lease request, BOEM may
offer you a noncompetitive lease.
(h) If you accept the terms and conditions of the lease, BOEM will
issue the lease. You must comply with the terms and conditions of your
lease and the applicable provisions of this part. If BOEM issues you a
lease, BOEM will send you a notice with 3 copies of the lease form.
(1) Within 10 business days after you receive the lease copies you
must:
(i) Execute all three copies of the lease; and
(ii) File financial assurance as required under Sec. Sec. 585.516
through 585.537.
(2) You must pay the first 12 months' rent no later than 45
calendar days after you receive your copy of the executed lease from
BOEM under Sec. 585.503(a)(1).
(i) BOEM will publish in the Federal Register a notice announcing
the issuance of your lease.
(j) If you do not accept the terms and conditions in a timely
manner, BOEM will not issue a lease. Additionally, if you do not comply
with the requirements for financial assurance, BOEM may decide not to
issue a lease. If BOEM does not issue a lease due to your noncompliance
or non-acceptance, BOEM will not refund your acquisition fee or any
fees paid under paragraph (e)(1) of this section.
0
33. Amend Sec. 585.232 by revising the section heading and paragraph
(c) to read as follows:
Sec. 585.232 May I acquire a lease noncompetitively after responding
to a request for information or a Call for Information and Nominations?
* * * * *
(c) After receiving the acquisition fee, BOEM will follow the
process outlined in Sec. 585.231(d) through (i).
0
34. Revise the undesignated center heading before Sec. 585.235 and
revise Sec. 585.235 to read as follows:
Commercial and Limited Lease Periods
Sec. 585.235 What are the lease periods for a commercial lease?
(a) The lease periods within the term of your commercial lease are
defined as follows:
(1) Preliminary period. Each commercial lease has a preliminary
period of up to five years. During the preliminary period, the lessee
must submit a COP. The preliminary period begins on the effective date
of the lease and ends either when a COP is received by BOEM for review
or at the expiration of five years, whichever occurs first.
(2) COP review period. A commercial lease has a COP review period.
The COP review period begins when BOEM receives a COP from the lessee
and ends upon COP approval, disapproval, or approval with modifications
pursuant to Sec. 585.628. During the COP review period, BOEM conducts
the necessary reviews and consultations associated with the COP. The
lessee must resolve issues identified as incomplete in the COP by BOEM
within the first year of the COP review period.
(3) Design and construction period. A commercial lease has a design
and construction period for the duration specified in the approved COP,
which may be modified by mutual agreement of the lessee and BOEM.
During the design and construction period, the lessee must submit its
FDR and FIR, address any issues raised by BOEM, and complete project
construction. The design and construction period begins at COP approval
and ends either when commercial operations begin or at the expiration
of the period set forth in the approved COP as modified, whichever
occurs first.
(4) Operations period. A commercial lease has an operations period
of 30 years or the duration specified in the lease. The operations
period begins at the start of commercial operations. Additional time
may be added to the operations period through a lease suspension under
Sec. 585.415 issued during this period; a lease extension requested
pursuant to paragraph (b) of this section; or a lease renewal under
Sec. 585.425.
(b) You may request an extension of any of the lease periods
outlined in paragraph (a) of this section for good cause. In its
discretion, BOEM may approve your request.
(c) If you intend to develop your lease in phases under Sec.
585.629, you may propose lease period schedules as appropriate for each
phase in your COP.
(d) If you intend to segregate or merge your lease under Sec. Sec.
585.408 through 585.413, you and your assignees may propose lease
period schedules in your segregation or merger application.
0
35. Revise Sec. 585.236 to read as follows:
Sec. 585.236 If I have a limited lease, how long will my lease remain
in effect?
(a) For limited leases, the lease periods are as shown in the
following table:
----------------------------------------------------------------------------------------------------------------
Lease period Extension or suspension Requirements
----------------------------------------------------------------------------------------------------------------
(1) Each limited lease has a preliminary period of If we receive a GAP that The GAP must meet the
12 months within which to submit a GAP. The satisfies the requirements of requirements of Sec.
preliminary period begins on the effective date of Sec. Sec. 585.640 through Sec. 585.640 through
the lease. 585.648, the preliminary 585.648
period will be automatically
extended for the period of
time necessary for us to
conduct a technical and
environmental review of the
GAP.
(2) Each limited lease has an operations period as We may order or grant a ..........................
specified by BOEM (if the lease is issued suspension of the operations
competitively) or negotiated by the parties (if period as provided in Sec.
the lease is issued noncompetitively). In either Sec. 585.415 through 585.421.
case, the duration of the operations period will
depend on the intended use of the lease. The
operations period begins on the date that we
approve your GAP.
----------------------------------------------------------------------------------------------------------------
(b) You may request an extension of any of the lease periods
outlined in paragraph (a) of this section for good cause. In its
discretion, BOEM may approve your request.
Subpart D--Rights-of-Way Grants and Rights-of-Use and Easement
Grants for Renewable Energy Activities
0
36. Amend Sec. 585.301 by revising paragraphs (a)(2) and (3) to read
as follows:
Sec. 585.301 What do ROW grants and RUE grants include?
(a) * * *
(2) Is of a width sufficient to accommodate potential changes at
the design and installation phases of the
[[Page 6030]]
project, with an option for the grant holder to relinquish unused
portions of the ROW after construction is complete;
(3) For the associated facilities, is limited to the area
reasonably necessary for a power or pumping station or other facilities
requested.
* * * * *
0
37. Amend Sec. 585.302 by revising paragraph (a) to read as follows:
Sec. 585.302 What are the general requirements for ROW grant and RUE
grant holders?
(a) To acquire a ROW grant or RUE grant, you must provide evidence
that you meet the qualifications set forth in Sec. Sec. 585.106 and
585.107.
* * * * *
0
38. Revise Sec. 585.303 to read as follows:
Sec. 585.303 How long will my ROW grant or RUE grant remain in
effect?
The periods within the term of your grant are defined as follows:
(a) Each ROW or RUE grant has a preliminary period of 12 months
from the effective date of the ROW or RUE grant within which to submit
a GAP. The preliminary period begins on the effective date of the
grant. You must submit a GAP no later than the end of the preliminary
period for your grant to remain in effect. However, you may submit a
GAP before the issuance of your ROW or RUE grant.
(b) Each ROW or RUE grant has an operations period as set by BOEM
(if the grant is issued competitively) or negotiated by the parties (if
the grant is issued noncompetitively). In either case, the duration of
the operations period will depend on the intended use of the grant. The
operations period begins on the date that we approve your GAP.
(c) You may request an extension of any of the grant periods
outlined in paragraphs (a) and (b) of this section for good cause. In
its discretion, BOEM may approve your request.
0
39. Amend Sec. 585.305 by revising the introductory text to read as
follows:
Sec. 585.305 How do I request a ROW grant or RUE grant?
You must submit a request for a new or modified ROW grant or RUE
grant to BOEM pursuant to Sec. 585.110. You must submit a separate
request for each ROW grant or RUE grant you are requesting. The request
must contain the following information:
* * * * *
0
40. Amend Sec. 585.306 by revising paragraph (b) to read as follows:
Sec. 585.306 What action will BOEM take on my request?
* * * * *
(b) If BOEM determines there is no competitive interest in a ROW or
RUE grant, BOEM will publish a notice in the Federal Register of such
determination. After BOEM publishes this notice, you are responsible
for submitting any required consistency certification and necessary
data and information under 15 CFR part 930, subpart D, to BOEM and the
applicable State CZMA agency. BOEM may establish terms and conditions
for a noncompetitive grant and offer the grant to you:
(1) If you accept the terms and conditions of the grant, BOEM will
issue the grant.
(2) If you do not accept the terms and conditions of the grant,
BOEM may agree to modify the terms and conditions or may decide not to
issue the grant.
Sec. 585.309 [Removed]
0
41. Remove Sec. 585.309.
Sec. 585.310 [Redesignated as Sec. 585.309]
0
42. Redesignate Sec. 585.310 as new Sec. 585.309.
Sec. Sec. 585.310 [Reserved]
0
43. Add new reserved Sec. 585.310
Sec. 585.316 [Amended]
0
44. Amend Sec. 585.316 in paragraph (a) by removing the acronym
``BOEM'' and adding in its place the words ``Office of Natural
Resources Revenue (ONRR)''.
Subpart D--Lease and Grant Administration
0
45a. Remove the undesignated center heading appearing before Sec.
585.436 and the undesignated heading appearing before Sec. 585.437.
0
45b. Amend Sec. 585.400 by revising paragraph (f) to read as follows:
Sec. 585.400 What happens if I fail to comply with this part?
* * * * *
(f) BOEM may assess civil penalties as authorized by section 24 of
the OCS Lands Act and as determined under the procedures set forth in
30 CFR part 550, subpart N, if you fail to comply with any provision of
this part or any term of a lease, grant, or order issued under the
authority of this part:
(1) After notice of such failure and expiration of any reasonable
period allowed for corrective action; or
(2) Without notice of such failure and expiration of a period
allowed for corrective action if BOEM determines the failure may
constitute, or constituted, a threat of serious, irreparable, or
immediate harm or damage to life (including fish and other aquatic
life), property, or the marine, coastal, or human environment.
* * * * *
0
46. Amend Sec. 585.405 by revising first sentence of paragraph (a) to
read as follows:
Sec. 585.405 How do I designate an operator?
(a) If you intend to designate an operator who is not the lessee or
grant holder, you must identify the proposed operator in your SAP
(under Sec. 585.610(a)(3)), COP (under Sec. 585.626(a)(2)), or GAP
(under Sec. 585.645(a)(2)), as applicable. * * *
* * * * *
0
47. Revise the undesignated center heading immediately before Sec.
585.408 and amend Sec. 585.408 by revising the first sentence of
paragraph (b) introductory text and first sentence of paragraph (e) to
read as follows:
Lease or Grant Assignment, Segregation, and Consolidation
Sec. 585.408 May I assign my lease or grant interest?
* * * * *
(b) You may assign a lease or grant interest by submitting one
paper copy and one electronic copy of an assignment application to
BOEM, Form BOEM-0003 for leases and Form BOEM-0002 for grants. * * *
* * * * *
(e) You do not need to request an assignment for business mergers,
name changes, or changes of business form. * * *
Sec. Sec. 585.410 and 585.411 [Redesignated as Sec. Sec. 585.411
and 585.412]
0
48. Redesignate Sec. Sec. 585.410 and 585.411 as Sec. Sec. 585.411
and 585.412, respectively.
0
49. Add new Sec. 585.410 to read as follows:
Sec. 585.410 When will my assignment result in a segregated lease?
(a) When there is an assignment by all record title owners of 100
percent of the record title to one or more aliquots in a lease, the
assigned and retained portions become segregated into separate and
distinct leases. In such a case, both the new lease and the remaining
portion of the original lease are referred to as ``segregated leases''
and the assignee becomes the record title owner of the new lease, which
is subject to all the terms and conditions of the original lease. The
financial assurance requirements of subpart F of this part apply
separately to each segregated lease.
(b) If a record title owner transfers an undivided interest of less
than 100 percent of the record title interest in any
[[Page 6031]]
given aliquot, that transfer will not segregate the portions of that
aliquot, or the whole aliquot, in which part of the record title was
transferred, into a separate lease from the portions in which no
interest was transferred. Instead, that transfer will create a joint
ownership between the assignee and assignor in the portions of the
lease in which part of the record title interest was transferred.
0
50. Amend newly redesignated Sec. 585.412 by revising the first
sentence of paragraph (b) to read as follows:
Sec. 585.412 How does an assignment affect the assignee's liability?
* * * * *
(b) Assignees are bound to comply with each term or condition of
the lease or grant and the regulations in this part. * * *
0
51. Add Sec. 585.413 to read as follows:
Sec. 585.413 How do I consolidate leases or grants?
(a) You may apply to consolidate all or part of two or more
adjacent leases or grants held by the same lessee or grant holder into
one new lease or grant, subject to BOEM's approval. The application
must include a description of the leases or grants, or portions
thereof, to be consolidated, including the relevant lease number, lease
blocks, and aliquots.
(b) An approved consolidation will create a new lease or grant that
will be subject to the terms and conditions of the consolidated leases
and grants.
(c) To the extent the leases and grants to be consolidated have
different times remaining in the relevant lease periods, BOEM will
default to using the shorter remaining periods in the new lease or
grant but will consider requests for extensions pursuant to Sec.
585.235(b).
(d) To the extent the leases and grants to be consolidated have
other different terms and conditions, BOEM will default to using the
terms and conditions in the most recently issued leases and grants to
be consolidated for the new lease. BOEM will consider requests for
modifications on a case-by-case basis and, in its discretion, approve
such requests for good cause.
(e) Before BOEM will approve your consolidation request, BOEM will
assess appropriate financial assurance obligations for the new lease or
grant per Sec. Sec. 585.516 and 585.517 or Sec. Sec. 585.520 and
585.521.
(f) Any consolidated leases and grants that have been fully
absorbed into the new lease or grant in their entirety will be
considered terminated at the time of consolidation approval.
0
52. Amend Sec. 585.415 by revising paragraph (b) to read as follows:
Sec. 585.415 What is a lease or grant suspension?
* * * * *
(b) A suspension extends the expiration date for the relevant
period of your lease or grant for the length of time the suspension is
in effect.
* * * * *
0
53. Revise Sec. 585.416 to read as follows:
Sec. 585.416 How do I request a lease or grant suspension?
(a) You must submit a written request to BOEM that includes the
following information no later than 90 calendar days before the
expiration of your appropriate lease or grant period:
(1) The reasons you are requesting suspension of your lease or
grant, including an explanation why the suspension is necessary.
(2) The length of additional time requested.
(3) An explanation why it is in the public interest to approve the
suspension.
(4) Any other information BOEM may require.
(b) If you are unable to timely submit a COP or GAP, as required,
you may request a suspension to extend the preliminary period of your
lease or grant. Your request must include a revised schedule for
submission of your COP or GAP, as appropriate.
0
54. Amend Sec. 585.417 by revising paragraph (b)(2) to read as
follows:
Sec. 585.417 When may BOEM order a suspension?
* * * * *
(b) * * *
(2) You must furnish a copy of the study and results to BOEM
pursuant to Sec. 585.110;
* * * * *
0
55. Amend Sec. 585.420 by revising paragraph (b) and removing
paragraph (c).
The revision reads as follows:
Sec. 585.420 What effect does a suspension order have on my payments?
* * * * *
(b) If BOEM approves your request for a suspension under Sec.
585.416, or orders a suspension under Sec. 585.417, BOEM may waive or
defer your payment obligations during the suspension. BOEM's decision
to waive or defer payments will depend on the reasons for the
suspension, including your responsibility for the circumstances
necessitating a suspension.
0
56. Amend Sec. 585.425 by revising the first sentence to read as
follows:
Sec. 585.425 May I obtain a renewal of my lease or grant before it
terminates?
You may request renewal of the operations period of your lease or
the original authorized period of your grant. * * *
0
57. Amend Sec. 585.426 by revising paragraph (a)(2) to read as
follows:
Sec. 585.426 When must I submit my request for renewal?
(a) * * *
(2) No later than two years before the termination date of the
operations period of your commercial lease.
* * * * *
0
58. Amend Sec. 585.427 by revising the introductory text and
paragraphs (a) and (b) to read as follows:
Sec. 585.427 How long is a renewal?
BOEM will set the length of the renewal at the time of renewal on a
case-by-case basis.
(a) For commercial leases, the length of the renewal will not
exceed the original operations period unless a longer time is
negotiated by the parties.
(b) For limited leases, the length of the renewal will not exceed
the original operations period.
* * * * *
0
59. Amend Sec. 585.429 by adding paragraph (g) to read as follows:
Sec. 585.429 What criteria will BOEM consider in deciding whether to
renew a lease or grant?
* * * * *
(g) Other relevant factors, as appropriate.
0
60. Amend Sec. 585.432 by revising paragraph (a) to read as follows:
Sec. 585.432 When does my lease or grant terminate?
* * * * *
(a) The expiration of the applicable period of your lease or grant,
unless the relevant period is extended under Sec. 585.235(b) or Sec.
585.236(b), a request for renewal of your lease or grant is pending a
decision by BOEM, or your lease or grant is suspended or renewed as
provided in this subpart, in which case it terminates on the date set
forth in the notice of suspension or renewal;
* * * * *
0
61. Revise the undesignated center heading appearing before Sec.
585.435 and revise Sec. 585.435 to read as follows:
Lease or Grant Relinquishment, Contraction, or Cancellation
Sec. 585.435 How can I relinquish a lease or a grant or parts of a
lease or grant?
(a) You may surrender a lease or grant, or a designated subdivision
thereof, by filing with BOEM a properly
[[Page 6032]]
completed official relinquishment form available on the BOEM website. A
relinquishment takes effect on the date BOEM receives your completed
form, subject to the continued obligation of the lessee or grant holder
and the surety to:
(1) Make all payments due on the lease or grant, including any
accrued rent and deferred bonuses;
(2) Decommission all facilities on the relinquished lease or grant
(or portion thereof) to BOEM's satisfaction; and
(3) Perform any other outstanding obligations under the lease or
grant.
(b) After you submit a completed relinquishment form for a lease or
grant, ONRR will bill you for any outstanding payments that have
accrued from obligations arising under the relinquished lease or grant.
0
62. Add Sec. 585.438 to read as follows:
Sec. 585.438 What happens to leases or grants (or portions thereof)
that have been relinquished, contracted, or cancelled?
(a) If a lease or grant (or portion thereof) is relinquished,
contracted, or cancelled under Sec. 585.435, Sec. 585.436, or Sec.
585.437, respectively, BOEM may restart the competitive leasing process
at any point set forth in Sec. 585.210 that it deems reasonable and
appropriate (e.g., RFI, Call, area identification, PSN, or FSN),
subject to all necessary environmental analyses and consultations.
(b) If a competitively issued lease or grant (or portion thereof)
is relinquished or cancelled under Sec. 585.435 or Sec. 585.437,
respectively, within six months of the auction, BOEM may reoffer the
lease or grant (or portion thereof) to the next highest bidder from
that auction, if one can be identified. If BOEM decides to reoffer to
the next highest bidder, the price will be the next best bid, or a
prorated amount based on the size of the relinquished share, as long as
the next best bid reflects a fair return to the government.
Subpart F--Payments and Financial Assurance Requirements
0
63. Amend Sec. 585.500 by revising paragraphs (a) and (c)(1) through
(7) and removing paragraph (c)(8).
The revsions read as follows:
Sec. 585.500 How do I make payments under this part?
(a) For acquisition fees or the initial 12 months' rent paid for
the preliminary period of your lease, you must make your electronic
payments through the Fees for Services page on the BOEM website at
https://www.boem.gov, and you must include one copy of the Pay.gov
confirmation receipt page with your unsolicited request.
* * * * *
(c) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Payment Amount Due date Payment mechanism Section reference
--------------------------------------------------------------------------------------------------------------------------------------------------------
Initial payments for leases
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) If your lease is issued Bid Deposit......... As set in Final With bid........... Pay.gov.................... Sec. 585.501.
competitively. Sale Notice/
depends on bid.
Bonus Balance....... ................... Within 10-business 30 CFR 1218.51............. Sec. 585.225.
days of receiving
unsigned lease.
(2) If your lease is issued non- Acquisition Fee..... $0.25 per acre, With application... Pay.gov.................... Sec. 585.502.
competitively. unless otherwise
set by the
Director.
(3) All leases................... Initial Rent........ $3 per acre per 45-calendar days Pay.gov.................... Sec. 585.503.
year. after lease
execution.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subsequent payments for leases and project easements
--------------------------------------------------------------------------------------------------------------------------------------------------------
(4) All leases................... Subsequent Rent, $3 per acre per Annually........... 30 CFR 1218.51............. Sec. Sec. 585.503 and
unless otherwise year. 585.504.
provided in the
terms of the lease.
(5) If you have a project Rent, unless Greater of $5 per When/operations 30 CFR 1218.51............. Sec. 585.507.
easement. otherwise provided acre per year or period for
in the terms of the $450 per year. associated lease
grant. starts, then
annually.
(6) If your commercial lease is Operating Fee....... Determined by the Annually........... 30 CFR 1218.51............. Sec. 585.506.
producing. formula in Sec.
585.506.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Payments for ROW grants and RUE grants *
--------------------------------------------------------------------------------------------------------------------------------------------------------
(7) All ROW grants and RUE grants Initial Rent........ Greater of $5 per Grant execution.... Pay.gov.................... Sec. 585.508.
acre per year or
$450 per year,
unless otherwise
established in the
grant.
Subsequent Rent..... ................... Annually or in 5- 30 CFR 1218.51.............
year batches.
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
64. Revise Sec. 585.501 to read as follows:
Sec. 585.501 What deposits must I submit for a competitively issued
lease, ROW grant, or RUE grant?
(a) For a competitively issued lease or grant, BOEM may require a
bid deposit before the auction as established in the FSN.
(b) The provisional winner of an auction must pay the balance of
its accepted bid in accordance with the FSN.
0
65. Revise Sec. 585.503 to read as follows:
[[Page 6033]]
Sec. 585.503 What are the rent and operating fee requirements for a
commercial lease?
(a) The rent for a commercial lease is $3 per acre per year, unless
otherwise established in the FSN or lease.
(1) You must pay ONRR the first 12 months' rent no later than 45
calendar days after you receive your copy of the executed lease from
BOEM under Sec. 585.500(a).
(2) You must pay ONRR as provided in 30 CFR 1218.51 the rent due at
the beginning of each subsequent 1-year period for the entire lease
area until the facility begins commercial operations as specified in
Sec. 585.506 or as otherwise specified in the FSN or lease:
(i) For leases issued competitively, BOEM will specify in the FSN
and lease any adjustment to the rent that will take effect during the
operations period and before commercial operations.
(ii) For leases issued noncompetitively, BOEM will specify in the
lease any adjustment to the rent that will take effect during the
operations period and before commercial operations.
(3) You must pay ONRR as provided in 30 CFR 1218.51 the rent due
for a project easement in addition to the lease rent as provided in
Sec. 585.507. You must commence rent payments for your project
easement upon BOEM's approval of your COP or GAP.
(b) After your lease begins commercial operations or on the date
BOEM specifies in the lease, you must pay operating fees in the amount
specified in Sec. 585.506. Regardless of whether the lease is awarded
competitively or noncompetitively, BOEM will specify in the lease the
date when operating fees commence.
0
66. Amend Sec. 585.504 by revising the introductory text to read as
follows:
Sec. 585.504 How are my payments affected if I develop my commercial
lease in phases?
If you develop your commercial lease in phases as approved by BOEM
in your COP under Sec. 585.629, you must pay ONRR as provided in 30
CFR 1218.51:
* * * * *
0
67. Amend Sec. 585.505 by revising paragraph (c) to read as follows:
Sec. 585.505 What are the rent and operating fee requirements for a
limited lease?
* * * * *
(c) You must pay ONRR as provided in 30 CFR 1218.51 the rent due at
the beginning of each subsequent 1-year period on the entire lease area
for the duration of your operations period.
* * * * *
0
68. Amend Sec. 585.506 by:
0
a. Revising the introductory text and the first sentence of paragraph
(c)(1);
0
b. Removing the acronym ``DOE'' and adding in its place the words
``Department of Energy (DOE)'' in paragraph (c)(2)(i); and
0
c. Removing the acronym ``BOEM'' and adding in its place the acronym
``ONRR'' in paragraph (d).
The revisions read as follows:
Sec. 585.506 What operating fees must I pay on a commercial lease?
Once you begin commercial operations, you must pay ONRR as provided
in 30 CFR 1218.51 operating fees on your commercial lease as described
in Sec. 585.503.
* * * * *
(c) * * *
(1) Unless BOEM specifies otherwise, the operating fee rate ``r''
is 0.02 for each year the operating fee applies when you begin
commercial generation of electricity. * * *
* * * * *
0
69. Amend Sec. 585.507 by revising paragraphs (a) introductory text,
(a)(1), and (b)(1) to read as follows:
Sec. 585.507 What rent payments must I pay on a project easement?
(a) You must pay ONRR, as provided in 30 CFR 1218.51, rent for your
project easement in the amount of $5 per acre, subject to a minimum of
$450 per year, unless specified otherwise in the lease.
(1) The size of the project easement will be determined according
to Sec. 585.628(g)(1).
* * * * *
(b) * * *
(1) You must make the first rent payment when the operations period
begins, as provided in Sec. 585.500.
* * * * *
0
70. Amend Sec. 585.508 by revising paragraph (a) and paragraph (b)
introductory text to read as follows:
Sec. 585.508 What rent payments must I pay on ROW grants or RUE
grants associated with renewable energy projects?
(a) For each ROW grant BOEM approves under subpart D of this part,
you must pay ONRR, as provided in 30 CFR 1218.51, an annual rent of $5
per acre as determined by Sec. 585.301(a), but in no case less than
$450, for use of the grant, unless specified otherwise in the grant.
(b) For each RUE grant BOEM approves under subpart D of this part,
you must pay ONRR, as provided in 30 CFR 1218.51, a rent in the amount
of:
* * * * *
Sec. 585.509 [Amended]
0
71. Amend Sec. 585.509 in the section heading by removing the acronym
``BOEM'' and adding in its place the acronym ``ONRR''.
0
72. Amend Sec. 585.510 by revising the section heading and paragraphs
(a), (b) introductory text, (b)(4)(i) and (ii), and (c) to read as
follows:
Sec. 585.510 May BOEM defer, reduce, or waive my lease or grant
payments?
(a) The BOEM Director may defer, reduce, or waive the rent or
operating fee or components of the operating fee, such as the fee rate
or capacity factor, when the Director determines that continued
activities would be uneconomic without the requested deferral,
reduction, or waiver, or that it is necessary to encourage continued or
additional activities.
(b) When requesting a deferral, reduction, or waiver, you must
submit an application to BOEM that includes all of the following:
* * * * *
(4) * * *
(i) Continued activities would be uneconomic without the requested
deferral, reduction, or waiver, or
(ii) A deferral, reduction, or waiver is necessary to encourage
additional activities; and
* * * * *
(c) No more than 6 years of your operations period will be subject
to a full waiver of the operating fee.
Sec. 585.515 [Removed and Reserved]
0
73. Remove and reserve Sec. 585.515.
0
74. Revise Sec. 585.516 to read as follows:
Sec. 585.516 What are the financial assurance requirements for each
stage of my commercial lease?
(a) The financial assurance requirements for each stage of your
commercial lease are:
------------------------------------------------------------------------
Before BOEM will . . . You must provide . . .
------------------------------------------------------------------------
(1) Execute a commercial lease or A bond or other authorized financial
approve an assignment of an assurance in the amount of 12
existing commercial lease. months' rent.
[[Page 6034]]
(2) Allow you to install A supplemental bond or other
facilities approved in your SAP. authorized financial assurance in
an amount determined by BOEM based
on the anticipated decommissioning
costs of the proposed facilities.
(3) Allow you to install A supplemental bond or other
facilities approved in your COP. authorized financial assurance in
an amount determined by BOEM based
on anticipated decommissioning
costs of the proposed facilities.
If you propose to incrementally
fund your financial assurance
instrument, BOEM must approve the
schedule for providing the
appropriate financial assurance.
------------------------------------------------------------------------
(b) Each bond or other authorized financial assurance must
guarantee compliance with this part, the applicable plan approvals, and
the terms and conditions of the lease.
(c) For hydrokinetic commercial leases, supplemental financial
assurance may be required in an amount determined by BOEM prior to
installation of facilities pursuant to a FERC license.
0
75. Revise Sec. 585.517 to read as follows:
Sec. 585.517 How will BOEM determine the amounts of the supplemental
financial assurance requirements associated with commercial leases?
(a) BOEM determines the amount of your supplemental financial
assurance based on the estimated costs to meet all accrued lease
obligations, including:
(1) The projected amount of annual rent and other payments due the
United States over the next 12 months, to the extent that amount is not
covered in the initial financial assurance provided in Sec.
585.516(a)(1);
(2) Any past due rent and other payments;
(3) Other monetary obligations; and
(4) The estimated cost of facility decommissioning required by
subpart J of this part.
(b) If your cumulative potential obligations and liabilities
increase or decrease, we may adjust the amount of the supplemental
financial assurance.
(1) If we propose adjusting your financial assurance amount, we
will notify you of the proposed adjustment and give you an opportunity
to comment; and
(2) We may approve a reduced financial assurance amount if you
request it and if the reduced amount that you request is sufficient to
cover your obligations and liabilities calculated under paragraph (a)
of this section.
0
76. Revise Sec. 585.520 to read as follows:
Sec. 585.520 What financial assurance must I provide when I obtain my
limited lease, ROW grant, or RUE grant?
Before BOEM will execute your limited lease, ROW grant, or RUE
grant, or approve an assignment of an interest therein, you or a
proposed assignee must guarantee compliance with all terms and
conditions of the lease or grant by providing a bond or other
authorized financial assurance in the amount of 12 months' rent.
0
77. Revise Sec. 585.521 to read as follows:
Sec. 585.521 Do my financial assurance requirements change as
activities progress on my limited lease or grant?
(a) BOEM may require you to increase or allow you to decrease the
amount of your financial assurance as activities progress on your
limited lease or grant based on the estimated costs to meet all accrued
lease or grant obligations.
(b) The total amount of the financial assurance must be no less
than the amount required to meet your limited lease and grant
obligations, including:
(1) The projected amount of rent and other payments due the United
States over the next 12 months;
(2) Any past due rent and other payments;
(3) Other monetary obligations; and
(4) The estimated cost of facility decommissioning as required by
subpart J of this part.
(c) If BOEM proposes adjusting the amount of your financial
assurance to ensure your limited lease and grant obligations are met,
BOEM will notify you of the proposed adjustment and will provide you an
opportunity to object.
(d) You may submit a written request to BOEM to reduce the amount
of your financial assurance if your proposed amount is not less than
the sum of your obligations listed in paragraph (b) of this section.
BOEM may approve your request in its discretion.
(e) You may satisfy the requirement for increased financial
assurance on your limited lease or grant by increasing the amount of
your existing bond or by providing a supplemental bond or other
financial assurance.
(1) The supplemental bond or other financial assurance must meet
the requirements specified in Sec. Sec. 585.525 through 585.529.
(2) If you propose to incrementally fund your financial assurance,
BOEM must approve the schedule for providing the appropriate financial
assurance.
0
78. Amend Sec. 585.526 by:
0
a. Revising paragraph (a)(2);
0
b. Removing the word ``and'' after the semi-colon at the end of
paragraph (a)(5); and
0
c. Adding paragraphs (a)(7) through (9).
The revision and additions read as follows:
Sec. 585.526 What instruments other than a surety bond may I use to
meet the financial assurance requirement?
(a) * * *
(2) A pledge of cash, in an amount equal to the required dollar
amount of the financial assurance, to be deposited and maintained in a
Federal depository account of the U.S. Treasury;
* * * * *
(7) Letters of credit, subject to the following conditions:
(i) The letter of credit provider must have an issuer credit rating
from an Nationally Recognized Statistical Rating Organization (NRSRO)
greater than or equal to investment grade from either Standard & Poor's
Ratings Service or from Moody's Investor Service, or a proxy credit
rating determined by BOEM based on audited financial information
(including an income statement, balance sheet, statement of cash flows,
and the auditor's certificate) greater than or equal to either
investment grade from Standard & Poor's Ratings Service or from Moody's
Investor Service;
(ii) The letter of credit must grant BOEM full authority to demand
immediate payment in case of default in the performance of the terms
and conditions of a lease or regulatory obligations;
(iii) The letter of credit must be irrevocable during its term and
will be subject to collection by BOEM if not replaced by another letter
of credit or other form of financial assurance at least 30 calendar
days before its expiration date;
(iv) The expiration date of the letter of credit must not be less
than 1 year following the date it becomes effective;
(v) The letter of credit must contain a provision for automatic
renewal for periods of not less than 1 year in the absence of notice of
cancellation to BOEM at least 90 calendar days before the expiration
date; and
[[Page 6035]]
(vi) The letter of credit must contain a venue provision, which
requires any disputes to be adjudicated in a U.S. Federal court that is
mutually agreed upon by BOEM and the issuers of the letter of credit.
(8) Another form of security approved by BOEM in its discretion; or
(9) A combination of paragraphs (a)(1) through (8) of this section.
0
79. Amend Sec. 585.528 by revising the first sentence of paragraph
(a), the second sentence of paragraph (c) introductory text, paragraph
(c)(4), and the first sentence of paragraph (c)(5) to read as follows:
Sec. 585.528 May I use a third-party guaranty to meet the financial
assurance requirement for lease or grant activities?
(a) You may use a third-party guaranty to secure all or part of the
obligations for which financial assurance was demanded by BOEM if the
guarantor meets the criteria prescribed in paragraph (b) of this
section and submits an agreement meeting the criteria prescribed in
paragraph (c) of this section. * * *
* * * * *
(c) * * * All parties are bound jointly and severally, and the
guarantor must meet the legal and financial qualifications set forth in
Sec. Sec. 585.106 and 585.107.
* * * * *
(4) The guaranty agreement must contain a confession of judgment
providing that, if BOEM determines that you or your operator are in
default, the guarantor must not challenge the determination and must
remedy the default.
(5) If you or your operator fail to comply with any law, term, or
regulation, your guarantor must either take corrective action or
provide, within 7 calendar days or other agreed upon time period,
sufficient funds, up to the value of the guaranty, for BOEM to complete
corrective action. * * *
* * * * *
0
80. Amend Sec. 585.529 by removing ``; and'' from the end of the
paragraph (a)(1), revising paragraph (a)(2), and adding paragraph
(a)(3).
The revision and addition read as follows:
Sec. 585.529 Can I use a lease- or grant-specific decommissioning
account to meet the financial assurance requirements related to
decommissioning?
(a) * * *
(2) You must fund the account in the amount determined by and
according to the payment schedule approved by BOEM. BOEM will estimate
the cost of decommissioning, including site clearance; and
(3) Subject to BOEM's approval, a decommissioning account may be
funded in whole or in part during the operations period of a lease or
grant.
* * * * *
0
81. Amend Sec. 585.532 by revising the section heading, the first
sentence of paragraph (a) introductory text, and the first and second
sentences of paragraph (b) to read as follows:
Sec. 585.532 What happens if my surety wants to terminate the period
of liability of my financial assurance?
(a) Terminating the period of liability of your financial assurance
ends the period during which surety liability continues to accrue. * *
*
* * * * *
(b) Your surety must submit to BOEM its request to terminate the
period of liability under its financial assurance and notify you of
that request no less than 90 days before the proposed termination date.
If you intend to continue activities on your lease or grant, you must
provide replacement financial assurance of equivalent or greater value.
* * *
0
82. Revise Sec. 585.533 to read as follows:
Sec. 585.533 How does my surety obtain cancellation of my financial
assurance?
BOEM will allow a surety to cancel financial assurance and will
relieve the surety from liability for accrued obligations on the
earliest to occur of the following:
(a) BOEM determines that there are no outstanding obligations
covered by the financial assurance;
(b) The following occurs:
(1) BOEM accepts replacement financial assurance in an amount equal
to or greater than the financial assurance to be cancelled to cover the
period of liability prior to termination; or
(2) The surety issuing the new financial assurance has expressly
agreed to assume all outstanding liabilities under the original
financial assurance that accrued during the period of liability that
was terminated;
(c) Seven years have elapsed since the termination of the period of
liability if the new surety did not assume the accrued obligations for
the terminated period of liability; or
(d) A longer period as necessary to complete any appeals or
judicial litigation related to your liabilities covered by the
financial assurance.
0
83. Revise Sec. 585.534 to read as follows:
Sec. 585.534 When may BOEM cancel my financial assurance?
(a) When your lease or grant ends, your sureties remain
responsible, and BOEM will cancel your financial assurance as shown in
the following table:
------------------------------------------------------------------------
Your financial assurance will not be
Financial assurance cancelled until . . .
------------------------------------------------------------------------
(1) Financial assurance for Seven years after all operations and
commercial leases submitted activities under the lease or grant
under Sec. 585.516(a)(1), cease, including decommissioning and
and for grants or limited site clearance, or a longer period as
leases submitted under Sec. necessary to complete any appeals or
Sec. 585.520 and 585.521. judicial litigation related to your
financial assurance obligation. BOEM may
reduce or cancel your financial
assurance or return some or all of your
security if BOEM determines that the
full amount is no longer needed.
[[Page 6036]]
(2) Supplemental financial (i) The lease or grant expires or is
assurance for commercial terminated and BOEM determines you have
leases submitted under Sec. met your secured obligations, unless
585.516 and for grants or BOEM:
limited leases submitted (A) Determines that the future potential
under Sec. Sec. 585.520 liability resulting from any undetected
and 585.521. problem is greater than the amount of
your lease-specific financial assurance;
and
(B) Notifies the provider of the
supplemental financial assurance that
BOEM will wait 7 years before cancelling
all or a part of the supplemental
financial assurance (or longer period as
necessary to complete any appeals or
judicial litigation related to your
secured obligations); or
(ii) At any time when:
(A) BOEM determines, in its discretion,
that you no longer need to provide the
supplemental financial assurance;
(B) The operations for which the
supplemental financial assurance was
provided were cancelled before accrual
of any decommissioning obligation; or
(C) Cancellation of the supplemental
financial assurance is appropriate
because, under the regulations, BOEM
determines such financial assurance
never should have been required.
------------------------------------------------------------------------
(b) BOEM may require reinstatement of your financial assurance as
if no cancellation had occurred if:
(1) A person makes a payment under the lease or grant, and the
payment is rescinded or must be repaid by the recipient because the
person making the payment is insolvent, bankrupt, subject to
reorganization, or placed in receivership; or
(2) The responsible party represents to BOEM that it has discharged
its obligations under the lease or grant, and the representation was
materially false when the financial assurance was cancelled.
0
84. Amend Sec. 585.535 by revising the section heading, paragraph (a)
introductory text, and paragraph (a)(2) to read as follows:
Sec. 585.535 Why might BOEM call for forfeiture of my financial
assurance?
(a) BOEM may call for forfeiture of all or part of your financial
assurance if:
* * * * *
(2) You default on one of the conditions under which we accepted
your financial assurance.
* * * * *
Sec. 585.541 [Amended]
0
85. Amend Sec. 585.541 by removing the word ``nautical'' from the
first sentence.
Sec. 585.542 [Amended]
0
86. Amend Sec. 585.542 by removing the word ``nautical'' from the
third sentence.
Subpart G--Plans and Information Requirements
0
87. Revise Sec. 585.600 to read as follows:
Sec. 585.600 What plans and information must I submit to BOEM before
I conduct activities on my lease or grant?
(a) You must submit a SAP, COP, or GAP and receive BOEM approval as
set forth in the following table:
------------------------------------------------------------------------
Before you: you must:
------------------------------------------------------------------------
(1) Conduct any site assessment activities on Submit, and obtain
your commercial lease involving an approval of, your SAP
engineered foundation, such as under Sec. Sec.
meteorological towers or other facilities 585.605 through 585.613.
that are installed using a fixed-bottom
foundation requiring professional
engineering design and assessment of
sediment, meteorological, and oceanographic
condition.
(2) Conduct any activities pertaining to Submit, and obtain
construction of facilities for commercial approval of, your COP
operations on your commercial lease. under Sec. Sec.
585.620 through 585.629.
(3) Conduct any activities on your limited Submit, and obtain
lease or grant in any OCS area. approval of, your GAP
under Sec. Sec.
585.640 through 585.648.
------------------------------------------------------------------------
(b) BOEM may waive certain types of information or analyses that
you otherwise must provide in your proposed plan when you demonstrate
that:
(1) Sufficient applicable information or analysis is readily
available to BOEM.
(2) The coastal or marine resources that are the subject of the
information requirement are not present or affected.
(3) Other factors affect your ability to obtain or BOEM's need for
the required information.
(4) Information is neither necessary nor required for a State to
determine consistency with its coastal management program.
0
88. Revise Sec. 585.601 to read as follows:
Sec. 585.601 When must I submit my plans to BOEM?
(a) You may submit your SAP anytime; however, your SAP must be
submitted to and approved by BOEM before you conduct activities
requiring a SAP under Sec. 585.600(a)(1).
(b) You must submit your COP within 5 years of your lease effective
date as determined by Sec. 585.237.
(1) Your COP must contain sufficient data and information for BOEM
to complete its reviews and NEPA analysis.
(2) BOEM may need to conduct additional reviews of your COP,
including environmental analysis under NEPA, if significant, new
information becomes available from your site assessment and
characterization activities or if you substantially revise your COP. As
a result of the additional reviews, BOEM may require that you modify
your COP.
(c) You must submit your GAP within 12 months of your lease
effective date as determined by Sec. 585.237 or your grant effective
date as determined by Sec. 585.303(a), as applicable.
0
89. Revise Sec. 585.602 to read as follows:
Sec. 585.602 What records must I maintain?
Until BOEM releases your financial assurance under Sec. 585.534,
you must maintain and provide to BOEM upon request all data and
information related to compliance with the required terms and
conditions of your lease, grant, and approved plans.
0
90. Revise Sec. 585.605 to read as follows:
[[Page 6037]]
Sec. 585.605 What is a Site Assessment Plan (SAP)?
(a) A SAP describes the site assessment activities meeting the
criteria in Sec. 585.600(a)(1) that you plan to perform on your
commercial lease.
(b) You must receive BOEM approval of your SAP, as provided in
Sec. 585.613, before you can begin any proposed site assessment
activities requiring such approval.
(c) If BOEM determines that your proposed site assessment facility
or combination of facilities is complex or significant under Sec.
585.613(a)(1), you must comply with the requirements in subpart H of
this part regarding facility design and construction and submit your
SMS as required by Sec. 585.810.
0
91. Revise Sec. 585.606 to read as follows:
Sec. 585.606 What must I demonstrate in my SAP?
Your SAP must demonstrate that you have planned and are prepared to
conduct the proposed site assessment activities in a manner that:
(a) Conforms to your responsibilities listed in Sec. 585.105(a);
(b) Conforms to all applicable laws, regulations, and provisions of
your commercial lease;
(c) Is safe;
(d) Does not unreasonably interfere with other uses of the OCS,
including those involved with national security or defense;
(e) Does not cause undue harm or damage to natural resources; life
(including human and wildlife); property; the marine, coastal, or human
environment; or sites, structures, or objects of historical or
archaeological significance;
(f) Uses best available and safest technology;
(g) Uses best management practices; and
(h) Uses properly trained personnel.
0
92. Revise Sec. 585.607 to read as follows:
Sec. 585.607 How do I submit my SAP?
You must submit your SAP to BOEM pursuant to Sec. 585.110.
0
93. Revise Sec. 585.610 to read as follows:
Sec. 585.610 What must I include in my SAP?
(a) Project information may be provided using a PDE. When you
provide information using a PDE, BOEM reserves the right to determine
what range of values for any given parameter are acceptable. Your SAP
must include the following project-specific information, as applicable:
------------------------------------------------------------------------
Project information Including
------------------------------------------------------------------------
(1) Contact information...... The name, address, e-mail address, and
phone number of an authorized
representative.
(2) The site assessment or A discussion of the objectives;
technology testing concept. description of the proposed activities,
including the technology you will use;
and proposed schedule from start to
completion.
(3) Designation of operator, As provided in Sec. 585.405.
if applicable.
(4) Commercial lease A description of the measures you took,
stipulations and compliance. or will take, to satisfy the conditions
of any lease stipulations related to
your proposed activities.
(5) A location plat, or The range of surface locations and
indicative layout. associated water depths for proposed
structures, facilities, and
appurtenances located both offshore and
onshore, including all anchor and
mooring data; and the location and
associated water depths of all existing
structures.
(6) General structural and Preliminary design information for each
project design, fabrication, facility associated with your site
and installation. assessment activity.
(7) Deployment activities.... A description of the safety, prevention,
and environmental protection features or
measures that you will use.
(8) Your proposed measures A description of the measures you will
for avoiding, minimizing, use to avoid or minimize adverse effects
reducing, eliminating, and and any potential incidental take,
monitoring environmental before you conduct activities on your
impacts. lease, and how you will mitigate
environmental impacts from your proposed
activities, including a description of
the measures you will use as required by
subpart I of this part.
(9) Project verification An analysis supporting your
strategy. recommendation as to whether your site
assessment activities should be
determined complex or significant. If
your recommendation supports a complex
or significant determination, describe
your strategy for compliance with Sec.
Sec. 585.705 through 585.714.
(10) References.............. A bibliographic list of any document or
published source that you cite as part
of your plan. You may reference
information and data discussed in other
plans you previously submitted or that
are otherwise readily available to BOEM.
(11) Decommissioning and site A discussion of general concepts and
clearance procedures. methodologies.
(12) Air quality information. Information as described in Sec.
585.659.
(13) A listing of all A statement indicating whether you have
Federal, State, and local applied for or obtained such
authorizations or approvals authorization or approval from the U.S.
required to conduct site Coast Guard, U.S. Army Corps of
assessment activities. Engineers, and any other applicable
Federal, State, or local authorizers.
(14) A list of agencies and Contact information and issues discussed.
persons with whom you have
communicated, or with whom
you will communicate,
regarding potential impacts
associated with your
proposed activities.
(15) Financial assurance Statements attesting that the activities
information. and facilities proposed in your SAP are
or will be covered by an appropriate
bond or other approved financial
assurance instrument as required in Sec.
585.516 and Sec. Sec. 585.525
through 585.529.
(16) Information you A list of the documents you have
incorporate by reference. incorporated by reference and their
public availability.
(17) Other information....... Additional information as required by
BOEM.
------------------------------------------------------------------------
(b) You must include reports that document the results of surveys
and investigations that characterize and model the site of your
proposed assessment activities. Your reports must address the following
topics:
[[Page 6038]]
----------------------------------------------------------------------------------------------------------------
Topic: Purpose of report: Including:
----------------------------------------------------------------------------------------------------------------
(1) Geological and geotechnical.... To define the baseline (i) Desktop studies to collect available data
geological conditions of from published sources and nearby sites.
the seabed and provide (ii) Geophysical surveys of the proposed area
sufficient data to develop with sufficient areal coverage, depth
a geologic model, assess penetration, and resolution to define the
geologic hazards, and geological conditions of the seabed at the
determine the feasibility site that could impact, or be impacted by,
of the proposed site for your proposed site assessment activities.
your assessment facility.
(iii) Geotechnical investigations of
sufficient scope and detail to: ground truth
the geophysical surveys; support development
of a geological model; assess potential
geological hazards that could impact the
proposed site assessment activities; and
provide geotechnical data for design of the
site assessment facility, including type and
approximate dimensions of the foundation.
(iv) An overall site characterization report
for your site assessment facility that
integrates the findings of your studies,
surveys, and investigations; describes the
geological model; contains supporting data
and findings; and states your
recommendations.
(2) Biological..................... To determine the presence A description of the results of biological
of biological features and surveys used to determine the presence of
marine resources. live bottoms, hard bottoms, topographic
features, and other marine resources,
including migratory populations such as fish,
marine mammals, sea turtles, and coastal and
marine birds.
(3) Archaeological resources and To provide BOEM with Archaeological resource and other historic
other historic properties. required information to property identification surveys with
conduct review of your SAP supporting data.
under NHPA.
(4) Meteorological and To provide an overall Desktop studies to collect available data from
oceanographic (metocean). understanding of the hindcast or re-analysis models and field
meteorological and measurements in sufficient detail to support
oceanographic conditions design of your facility and support the
at the site of your analysis of wake effects, sediment mobility
proposed facility, and to and scour, and navigation risks.
identify conditions that
may pose a significant
risk to your facility.
----------------------------------------------------------------------------------------------------------------
0
94. Revise Sec. 585.611 to read as follows:
Sec. 585.611 What information and certifications must I submit with
my SAP to assist BOEM in complying with NEPA and other applicable laws?
(a) Your SAP must contain detailed information and analysis to
assist BOEM in complying with NEPA and other applicable laws.
(b) When proposing site assessment activities in an area where BOEM
has no previous experience, your SAP must contain information about
resources, conditions, and activities listed in the following table
that could be affected by or that could affect your proposed
activities:
------------------------------------------------------------------------
Type of information: Including:
------------------------------------------------------------------------
(1) Hazard information....... Meteorology, oceanography, sediment
transport, geology, and shallow
geological or manmade hazards.
(2) Water quality............ Turbidity and total suspended solids from
construction; impact from vessel
discharges.
(3) Biological resources..... Benthic communities, marine mammals, sea
turtles, coastal and marine birds, fish
and shellfish, plankton, sea grasses,
and other plant life.
(4) Threatened or endangered As needed for ESA consultation.
species.
(5) Sensitive biological Essential fish habitat, refuges,
resources or habitats. preserves, special management areas
identified in coastal management
programs, nearby marine protected areas,
including State and Federal coastal and
marine protected areas, as well as
nearby national marine sanctuaries, and
nearby marine national monuments,
rookeries, hard bottom habitat,
chemosynthetic communities, calving
grounds, barrier islands, beaches,
dunes, and wetlands.
(6) Archaeological resources To provide BOEM with required information
use, other historic property to conduct review of the COP under the
use, Indigenous traditional NHPA or other applicable laws or
cultural use, or use policies, including treaty and reserved
pertaining to treaty and rights with Native Americans or other
reserved rights with Native Indigenous peoples.
Americans or other
Indigenous peoples.
(7) Social and economic Employment, existing offshore and coastal
conditions. infrastructure (including major sources
of supplies, services, energy, and
water), land use, subsistence resources
and harvest practices, recreation,
recreational and commercial fishing
(including typical fishing seasons,
location, and type), minority and lower
income groups, coastal zone management
programs, and a visual impact
assessment.
(8) Coastal and marine uses.. Military activities, vessel traffic,
fisheries, and exploration and
development of other natural resources.
This includes a navigational safety risk
assessment that provides a description
of the predicted impacts of the project
to navigation, and the measures you will
use to avoid or minimize adverse
impacts. This document must also be
submitted to the U.S. Coast Guard to
assist with its analysis if your
proposal identifies potential
impediments to safe navigation.
(9) Consistency Certification If required by CZMA, under:
(i) 15 CFR part 930, subpart D, if the
SAP is submitted before lease issuance;
(ii) 15 CFR part 930, subpart E, if the
SAP is submitted after lease issuance.
[[Page 6039]]
(10) Other resources, As identified by BOEM.
conditions, and activities.
------------------------------------------------------------------------
(c) When proposing site assessment activities in an area BOEM
previously considered, BOEM will review your SAP to determine if its
impacts are consistent with those previously considered. If the
anticipated effects of your proposed SAP activities are significantly
different than those previously anticipated, we may determine that
additional NEPA and other relevant Federal reviews are required. In
that case, BOEM will notify you of such determination, and you must
submit information required in paragraph (b) of this section as
appropriate.
0
95. Amend Sec. 585.612 by revising paragraphs (a) and (b) to read as
follows:
Sec. 585.612 How will my SAP be processed for Federal consistency
under the Coastal Zone Management Act?
* * * * *
------------------------------------------------------------------------
Consistency review of your SAP will be
If your SAP is submitted: handled as follows:
------------------------------------------------------------------------
(a) Before lease issuance.... You will furnish a copy of your SAP,
consistency certification, and necessary
data and information, to the applicable
State CZMA agencies if required by 15
CFR part 930, subpart D. Submit a copy
to BOEM in accordance with Sec.
585.110.
(b) After lease issuance..... You must submit a copy of your SAP,
consistency certification, and necessary
data and information pursuant to 15 CFR
part 930, subpart E, to BOEM only if
BOEM did not consider the proposed site
assessment activities for your lease
area under its previously submitted
consistency determination under 15 CFR
part 930, subpart C, and if required by
15 CFR part 930, subpart E. BOEM will
forward to the applicable State CZMA
agency or agencies one copy of your SAP,
consistency certification, and necessary
data and information required under 15
CFR part 930, subpart E, after BOEM has
determined that all information
requirements for the SAP are met.
------------------------------------------------------------------------
0
96. Amend Sec. 585.613 by revising paragraph (e)(2) to read as
follows:
Sec. 585.613 How will BOEM process my SAP?
* * * * *
(e) * * *
(2) If we disapprove your SAP, we will inform you of the reasons
and allow you an opportunity to submit a revised plan addressing our
concerns, and we may suspend your lease, as appropriate, to give you a
reasonable amount of time to resubmit the SAP.
0
97. Amend Sec. 585.614 by revising paragraph (b) to read as follows:
Sec. 585.614 When may I begin conducting activities under my approved
SAP?
* * * * *
(b) If you are installing a facility or a combination of facilities
deemed by BOEM to be complex or significant, as provided in Sec.
585.613(a)(1), you must comply with the requirements of subpart H of
this part and submit your Safety Management System description required
by Sec. 585.810 before construction may begin.
0
98. Revise Sec. 585.617 to read as follows:
Sec. 585.617 What activities require a revision to my SAP, and when
will BOEM approve the revision?
(a) You must notify BOEM in writing before conducting any site
assessment activities not described in your approved SAP. Your notice
must describe in detail the type of activities you propose to conduct.
We will determine whether the activities you propose require a revision
to your SAP. We may request additional information from you, if
necessary, to make this determination.
(b) If a revised SAP is required, BOEM will reassess, upon its
receipt, whether the facility or combination of facilities described in
it is complex or significant.
(1) If BOEM determines that the facilities described in your
revised SAP are not complex or significant, you may conduct your
approved activities under Sec. 585.614(a).
(2) If BOEM determines that the facilities described in your
revised SAP are complex or significant, you must comply with Sec.
585.614(b).
(c) BOEM will periodically review the activities conducted under an
approved SAP. The frequency and extent of the review will be based on
the significance of any changes in available information and on onshore
or offshore conditions affecting or affected by the activities
conducted under your SAP. If the review indicates that the SAP should
be revised to meet the requirements of this part, we will require you
to submit the needed revisions.
(d) Activities for which a proposed revision to your SAP likely
will be necessary include:
(1) Activities not described in your approved SAP;
(2) Modifications to the number, size, or type of facilities or
equipment you will use;
(3) Changes in the geographical location or layout of your bottom
disturbances, offshore facilities, or onshore support bases beyond the
range of possible locations described in your approved SAP;
(4) Structural failure of any facility; or
(5) Changes to any other activity specified by BOEM.
(e) We may begin the appropriate NEPA analysis and other relevant
consultations when we determine that a proposed revision could:
(1) Result in a significant change in the impacts previously
identified and evaluated;
(2) Require any additional Federal authorizations; or
(3) Involve activities not previously identified and evaluated.
(f) When you propose a revision, we may approve the revision if we
determine that the revision is:
(1) Designed not to cause undue harm or damage to natural
resources; life (including human and wildlife); property; the marine,
coastal, or human environment; or sites, structures, or objects of
historical or archaeological significance; and
(2) Otherwise consistent with the provisions of section 8(p) of the
OCS Lands Act.
0
99. Amend Sec. 585.618 by revising paragraphs (a) and (e) to read as
follows:
Sec. 585.618 What must I do upon completion of approved site
assessment activities?
(a) If your COP or FERC license application describes the continued
use of existing facilities approved in your SAP, you may keep such
facilities in place on your lease during the time that BOEM reviews
your COP or FERC reviews your license application.
* * * * *
(e) You must decommission your site assessment facilities as set
forth in
[[Page 6040]]
subpart J of this part upon the termination of your lease. You must
submit your decommissioning application as required in Sec. Sec.
585.905 and 585.906.
0
100. Revise Sec. 585.621 to read as follows:
Sec. 585.621 What must I demonstrate in my COP?
Your COP must demonstrate that you have planned and are prepared to
conduct the proposed activities in a manner that:
(a) Conforms to your responsibilities listed in Sec. 585.105(a);
(b) Conforms to all applicable laws, regulations, and provisions of
your commercial lease;
(c) Is safe;
(d) Does not unreasonably interfere with other uses of the OCS,
including those involved with national security or defense;
(e) Does not cause undue harm or damage to natural resources; life
(including human and wildlife); property; the marine, coastal, or human
environment; or sites, structures, or objects of historical or
archaeological significance;
(f) Uses best available and safest technology;
(g) Uses best management practices; and
(h) Uses properly trained personnel.
0
101. Amend Sec. 585.622 by revising paragraph (a) to read as follows:
Sec. 585.622 How do I submit my COP?
(a) You must submit your COP to BOEM pursuant to Sec. 585.110.
* * * * *
0
102. Revise Sec. 585.626 to read as follows:
Sec. 585.626 What must I include in my COP?
(a) Project information may be provided using a PDE. When you
provide information using a PDE, BOEM reserves the right to determine
what range of values for any given parameter are acceptable. Your COP
must include the following project-specific information, as applicable:
------------------------------------------------------------------------
Project information: Including:
------------------------------------------------------------------------
(1) Contact information...... The name, address, e-mail address, and
phone number of an authorized
representative.
(2) Designation of operator, As provided in Sec. 585.405.
if applicable.
(3) Commercial lease A description of the measures you took,
stipulations and compliance. or will take, to satisfy the conditions
of any lease stipulations related to
your proposed activities.
(4) A location plat, or The range of surface locations and
indicative layout. associated water depths for proposed
structures, facilities, and
appurtenances located both offshore and
onshore, including all anchor and
mooring data, and the location and
associated water depths of all existing
structures.
(5) General structural and Preliminary design information for each
project design, fabrication, facility associated with your project.
and installation.
(6) Deployment activities.... A description of safety, prevention, and
environmental protection features or
measures that you will use.
(7) A list of solid and Disposal methods and locations.
liquid wastes generated.
(8) A listing of chemical A list of chemical products used; the
products used (if stored volume stored on location; their
volume exceeds Environmental treatment, discharge, or disposal
Protection Agency (EPA) methods used; and the name and location
reportable quantities). of the onshore waste receiving,
treatment, and/or disposal facility. A
description of how these products would
be brought onsite, the number of
transfers that may take place, and the
quantity that will be transferred each
time.
(9) A description of any An estimate of the frequency and duration
vessels, vehicles, and of vessel, vehicle, or aircraft traffic.
aircraft you will use to
support your activities.
(10) A general description of (i) Under normal conditions.
the operating procedures and (ii) In the case of accidents or
systems. emergencies, including those that are
natural or manmade.
(11) Decommissioning and site A discussion of general concepts and
clearance procedures. methodologies.
(12) A listing of all A statement indicating whether you have
Federal, State, and local applied for or obtained such
authorizations or approvals authorization or approval from the U.S.
required to conduct the Coast Guard, U.S. Army Corps of
proposed activities, Engineers, and any other applicable
including commercial Federal, State, or local authorizers
operations. pertaining to energy gathering,
transmission or distribution (e.g.,
interconnection authorizations).
(13) Your proposed measures A description of the measures you will
for avoiding, minimizing, use to avoid or minimize adverse effects
reducing, eliminating, and and any potential incidental take before
monitoring environmental you conduct activities on your lease,
impacts. and how you will mitigate environmental
impacts from your proposed activities,
including a description of the measures
you will use as required by subpart I of
this part.
(14) Information you A list of the documents you have
incorporate by reference. incorporated by reference and their
public availability.
(15) A list of agencies and Contact information and issues discussed.
persons with whom you have
communicated, or with whom
you will communicate,
regarding potential impacts
associated with your
proposed activities.
[[Page 6041]]
(16) References.............. A bibliographic list of any document or
published source that you cite as part
of your plan. You may reference
information and data discussed in other
plans you previously submitted or that
are otherwise readily available to BOEM.
(17) Financial assurance..... Statements attesting that the activities
and facilities proposed in your COP are
or will be covered by an appropriate
bond or other approved financial
assurance instrument as required in Sec.
585.516 and Sec. Sec. 585.525
through 585.529.
(18) Project verification A list of all facilities or combination
strategy. of facilities on your approved COP that
are considered complex or significant.
You must describe your strategy for
compliance with Sec. Sec. 585.705
through 585.714.
(19) Construction schedule... A reasonable schedule of construction
activity showing significant milestones
leading to the commencement of
commercial operations consistent with
the requirements of subpart H of this
part.
(20) Air quality information. Information as described in Sec.
585.659.
(21) Other information....... Additional information as required by
BOEM.
------------------------------------------------------------------------
(b) You must include reports that document the results of surveys
and investigations that characterize and model the site of your
proposed project. Your reports must address the following topics:
----------------------------------------------------------------------------------------------------------------
Topic: Purpose of report: Including:
----------------------------------------------------------------------------------------------------------------
(1) Geological and geotechnical....... To define the baseline (i) Desktop studies to collect available data
geological conditions of from published sources and nearby sites.
the seabed and provide (ii) Geophysical surveys of the proposed area
sufficient data to with sufficient areal coverage, depth
develop a geologic penetration, and resolution to define the
model, assess geologic geological conditions of the site's seabed
hazards, and determine that could impact, or be impacted by, the
the feasibility of the proposed project.
proposed site for your (iii) Geotechnical investigations of
proposed facility. sufficient scope and detail to: ground truth
the geophysical surveys; support development
of a geological model; assess potential
geological hazards that could impact the
proposed project; and provide geotechnical
data for preliminary design of the facility,
including type and approximate dimensions of
the foundation.
(iv) An overall site characterization report
for your facility that integrates the
findings of your studies, surveys, and
investigations; describes the geological
model; contains supporting data and
findings; and states your recommendations.
(2) Biological........................ To determine the presence A description of the results of biological
of biological features surveys used to determine the presence of
and marine resources. live bottoms, hard bottoms, topographic
features, and other marine resources,
including migratory populations such as
fish, marine mammals, sea turtles, and sea
birds.
(3) Archaeological resources other To provide BOEM with Archaeological resource and other historic
historic properties. required information to property. On a case-by-case basis and
conduct review of the subject to terms and conditions of COP
COP under NHPA. approval per Sec. 585.628(f), BOEM may
permit you to submit certain surveys of the
subsea portions of the area of potential
effects with your FDR per Sec.
585.701(a)(11).
(4) Meteorological and oceanographic To provide an overall Desktop studies to collect available data
(metocean). understanding of the from hindcast or re-analysis models and
meteorological and field measurements in sufficient detail to
oceanographic conditions support preliminary design of the facility
at the site of the and support the analysis of wake effects,
proposed facility, and sediment mobility and scour, and
to identify conditions navigational risks.
that may pose a
significant risk to the
facility.
----------------------------------------------------------------------------------------------------------------
0
103. Amend Sec. 585.627 by revising the section heading and paragraphs
(a) through (c) to read as follows:
Sec. 585.627 What information and certifications must I submit with
my COP to assist BOEM in complying with NEPA and other applicable laws?
(a) Your COP must contain detailed information and analysis to
assist BOEM in complying with NEPA and other applicable laws. Your COP
must contain information about those resources, conditions, and
activities listed in the following table that could be affected by, or
that could affect, your proposed activities:
------------------------------------------------------------------------
Type of information: Including:
------------------------------------------------------------------------
(1) Hazard information............ Meteorology, oceanography, sediment
transport, geology, and shallow
geological or manmade hazards.
(2) Water quality................. Turbidity and total suspended solids
from construction; impact from
vessel discharges.
(3) Biological resources.......... Benthic communities, marine mammals,
sea turtles, coastal and marine
birds, fish and shellfish,
plankton, seagrasses, and plant
life.
(4) Threatened or endangered As required by ESA.
species.
(5) Sensitive biological resources Essential fish habitat, refuges,
or habitats. preserves, special management areas
identified in coastal management
programs, nearby marine protected
areas, including State and Federal
coastal and nearby marine protected
areas, as well as national marine
sanctuaries and nearby marine
national monuments, rookeries, hard
bottom habitat, chemosynthetic
communities, calving grounds,
barrier islands, beaches, dunes,
and wetlands.
(6) Archaeological resources use, To provide BOEM with required
other historic property use, information to conduct review of
Indigenous traditional cultural the COP under the NHPA or other
use, or use pertaining to treaty applicable laws or policies,
and reserved rights with Native including treaty and reserved
Americans or other Indigenous rights with Native Americans or
peoples. other Indigenous peoples.
[[Page 6042]]
(7) Social and economic resources. Employment, existing offshore and
coastal infrastructure (including
major sources of supplies,
services, energy, and water), land
use, subsistence resources and
harvest practices, recreation,
recreational and commercial fishing
(including typical fishing seasons,
location, and type), minority and
lower income groups, coastal zone
management programs, and a visual
impact assessment.
(8) Coastal and marine uses....... Military activities, vessel traffic,
fisheries, and exploration and
development of other natural
resources. This includes a
navigational safety risk assessment
that provides a description of the
predicted impacts of the project to
navigation, and the measures you
will use to avoid or minimize such
adverse impacts. This document also
must be submitted to the U.S. Coast
Guard to assist with its analysis.
(9) Consistency Certification..... If required by the CZMA regulations:
(i) 15 CFR part 930 subpart D, if
your COP is submitted before lease
issuance.
(ii) 15 CFR part 930 subpart E, if
your COP is submitted after lease
issuance.
(10) Other resources, conditions, As identified by BOEM.
and activities.
------------------------------------------------------------------------
(b) You must submit one copy of your consistency certification.
Your consistency certification must include:
(1) One copy of your consistency certification under either
subsection 307(c)(3)(B) of the CZMA (16 U.S.C. 1456(c)(3)(B)) and 15
CFR 930.76 or subsection 307(c)(3)(A) of the CZMA (16 U.S.C.
1456(c)(3)(A)) and 15 CFR 930.57, stating that the proposed activities
described in detail in your plans comply with the enforceable policies
of the applicable States' approved coastal management programs and will
be conducted in a manner that is consistent with such programs; and
(2) ``Necessary data and information,'' as required by 15 CFR
930.58.
(c) You must submit an oil spill response plan in compliance with
33 U.S.C. 1321, including information identified in 30 CFR part 254
that is applicable to your activities.
* * * * *
0
104. Amend Sec. 585.628 by revising the first sentence of paragraph
(a) and paragraphs (c), (f)(2), and (g) to read as follows:
Sec. 585.628 How will BOEM process my COP?
(a) BOEM will review your submitted COP, including the information
provided under Sec. 585.627, to determine if it contains the
information necessary to conduct our technical and environmental
reviews. * * *
* * * * *
(c) If your COP is submitted after lease issuance, and if your COP
is subject to Federal consistency review under the CZMA regulations at
15 CFR part 930, subpart E, you must submit your COP, consistency
certification, and associated data and information under CZMA to BOEM
after all information requirements for the COP are met, and the
appropriate environmental assessment or draft environmental impact
statement, if required, has been published. BOEM will forward the COP,
consistency certification, and associated data and information to the
applicable State CZMA agencies.
* * * * *
(f) * * *
(2) If we disapprove your COP, we will inform you of the reasons
and allow you an opportunity to submit a revised plan addressing our
concerns, and we may suspend the COP review period of your lease, as
appropriate, to give you a reasonable amount of time to submit the
revised plan.
(g) If BOEM approves your project easement, BOEM will issue an
addendum to your lease specifying the terms of the project easement.
(1) The project easement will provide sufficient off-lease area to
accommodate potential changes at the design and installation phases of
the project for locating cables, pipelines, and other appurtenances
necessary for your project.
(2) Unused portions of the project easement may be relinquished
after construction is complete.
(3) A project easement is subject to the following conditions:
(i) The rights granted will not prevent the granting of other
rights by the United States, either before or after the granting of the
project easement, provided that any subsequent authorization issued by
BOEM in the area of a previously issued project easement may not
unreasonably interfere with activities approved or impede existing
operations under the project easement; and
(ii) If the project easement is granted in an area where a lease or
ROW or RUE grant has previously been issued, the project easement
holder must agree that its activities will not interfere with or impede
existing operations under the lease or ROW or RUE grant.
0
105. Amend Sec. 585.634 by revising paragraphs (a) and (c) to read as
follows:
Sec. 585.634 What activities require a revision to my COP, and when
will BOEM approve the revision?
(a) You must notify BOEM in writing before conducting any
activities not described in your approved COP. Your notice must
describe in detail the type of activities you propose to conduct. We
will determine whether the activities you propose require a revision to
your COP. We may request additional information from you, if necessary,
to make this determination.
* * * * *
(c) Activities for which a proposed revision to your COP likely
will be necessary include:
(1) Activities not described in your approved COP;
(2) Modifications to the number, size, or type of facilities or
equipment you will use;
(3) Material changes in the geographical location or layout of
bottom disturbances, offshore facilities, or onshore support bases
beyond the range of possible locations described in your approved COP;
(4) Structural failure of any facility;
(5) Submission of an FDR or FIR that contains new information or
that is inconsistent with the COP that has been previously submitted;
or
(6) Change in any other activity specified by BOEM.
* * * * *
0
106. Amend Sec. 585.637 by revising paragraph (a) to read as follows:
Sec. 585.637 When may I commence commercial operations on my
commercial lease?
(a) If you are conducting activities on your lease that do not
require a FERC license (i.e., wind power projects), then you may
commence commercial operations 30 calendar days after:
(1) Your project verification report, described in Sec. Sec.
585.704 and 585.708(a)(5), is deemed submitted by BOEM;
(2) BOEM has confirmed receipt of critical safety systems
commissioning
[[Page 6043]]
records, as described in Sec. 585.708(a)(6); and
(3) BOEM has not notified you within that timeframe of any
objections to the verification report or the commissioning records.
(b) If you are conducting activities on your lease that do require
a FERC license or exemption, then you may commence commercial
operations when permitted by the terms of your license or exemption.
(c) You must notify BOEM within 10 business days after you commence
commercial operations.
0
107. Amend Sec. 585.638 by revising the first sentence of paragraph
(a) to read as follows:
Sec. 585.638 What must I do upon completion of my commercial
operations as approved in my COP or FERC license?
(a) Upon completion of your approved activities under your COP, you
must decommission your project as set forth in subpart J of this part.
* * *
* * * * *
0
108. Amend Sec. 585.640 by revising paragraph (b) to read as follows:
Sec. 585.640 What is a General Activities Plan (GAP)?
* * * * *
(b) You must receive BOEM approval of your GAP before you can begin
any of the proposed activities on your lease or grant.
0
109. Revise Sec. 585.641 to read as follows:
Sec. 585.641 What must I demonstrate in my GAP?
Your GAP must demonstrate that you have planned and are prepared to
conduct the proposed activities in a manner that:
(a) Conforms to your responsibilities listed in Sec. 585.105(a);
(b) Conforms to all applicable laws, regulations, and provisions of
your limited lease or grant;
(c) Is safe;
(d) Does not unreasonably interfere with other uses of the OCS,
including those involved with national security or defense;
(e) Does not cause undue harm or damage to natural resources; life
(including human and wildlife); property; the marine, coastal, or human
environment; or sites, structures, or objects of historical or
archaeological significance;
(f) Uses best available and safest technology;
(g) Uses best management practices; and
(h) Uses properly trained personnel.
0
110. Amend Sec. 585.642 by revising paragraph (a) to read as follows:
Sec. 585.642 How do I submit my GAP?
(a) You must submit your GAP to BOEM pursuant to Sec. 585.110.
* * * * *
0
111. Amend Sec. 585.645 by revising paragraphs (a) through (c) to read
as follows:
Sec. 585.645 What must I include in my GAP?
(a) Project information may be provided using a PDE. When you
provide a range of parameters using a PDE, BOEM reserves the right to
determine what range of values for any given parameter are acceptable.
Your GAP must include the following project-specific information, as
applicable:
------------------------------------------------------------------------
Project information: Including:
------------------------------------------------------------------------
(1) Contact information........... The name, address, e-mail address,
and phone number of an authorized
representative.
(2) Designation of operator, if As provided in Sec. 585.405.
applicable.
(3) The site assessment or A discussion of the objectives;
technology testing concept. description of the proposed
activities, including the
technology you will use; and
proposed schedule from start to
completion.
(4) ROW or RUE grant, or limited A description of the measures you
lease stipulations, if known. took, or will take, to satisfy the
conditions of any grant or lease
stipulations related to your
proposed activities.
(5) A location plat, or indicative The range of surface locations and
layout. associated water depths for
proposed structures, facilities,
and appurtenances located both
offshore and onshore, including all
anchor and mooring data; and the
location and associated water
depths of all existing structures.
(6) General structural and project Preliminary design information for
design, fabrication, and each facility associated with your
installation. project.
(7) Deployment activities......... A description of the safety,
prevention, and environmental
protection features or measures
that you will use.
(8) Your proposed measures for A description of the measures you
avoiding, minimizing, reducing, will use to avoid or minimize
eliminating, and monitoring adverse effects and any potential
environmental impacts. incidental take before you conduct
activities on your lease, and how
you will mitigate environmental
impacts from your proposed
activities, including a description
of the measures you will use as
required by subpart I of this part.
(9) A list of solid and liquid Disposal methods and locations.
wastes generated.
(10) A listing of chemical A list of chemical products used;
products used (if stored volume the volume stored on location;
exceeds EPA reportable their treatment, discharge, or
quantities). disposal methods used; and the name
and location of the onshore waste
receiving, treatment, and/or
disposal facility. A description of
how these products would be brought
onsite, the number of transfers
that may take place, and the
quantity that will be transferred
each time.
(11) A description of any vessels, An estimate of the frequency and
vehicles, and aircraft you will duration of vessel/vehicle/aircraft
use to support your activities. traffic.
(12) Reference information........ A bibliographic list of any document
or published source that you cite
as part of your plan. You may
reference information and data
discussed in other plans you
previously submitted or that are
otherwise readily available to
BOEM.
(13) Decommissioning and site A discussion of general concepts and
clearance procedures. methodologies.
(14) Air quality information...... As described in Sec. 585.659.
(15) A listing of all Federal, A statement indicating whether you
State, and local authorizations have applied for or obtained such
or approvals required to conduct authorization or approval from the
activities on your grant or U.S. Coast Guard, U.S. Army Corps
limited lease. of Engineers, and any other
applicable Federal, State or local
authorizers pertaining to your
activities.
[[Page 6044]]
(16) A list of agencies and Contact information and issues
persons with whom you have discussed.
communicated, or with whom you
will communicate, regarding
potential impacts associated with
your proposed activities.
(17) Financial assurance Statements attesting that the
information. activities and facilities proposed
in your GAP are, or an explanation
of how they will be, covered by an
appropriate bond or other approved
security, as required in Sec. Sec.
585.520 and 585.521.
(18) Project verification strategy An analysis supporting your
recommendation as to whether your
activities should be determined
complex or significant. If your
recommendation supports a complex
or significant determination,
describe your strategy for
compliance with Sec. Sec.
585.705 through 585.714.
(19) Information you incorporate A list of the documents you have
by reference. incorporated by reference and where
they may be publicly accessed; for
confidential information, you may
reference information and data
discussed in other plans previously
submitted or that are otherwise
readily available to BOEM.
(20) Other information............ Additional information as required
by BOEM.
------------------------------------------------------------------------
(b) You must include reports that document the results of surveys
and investigations that characterize and model the site of your
proposed activities. Your reports must cover the following topics:
------------------------------------------------------------------------
Purpose of
Topic: report: Including:
------------------------------------------------------------------------
(1) Geological and To define the (i) Desktop studies
geotechnical. baseline to collect available
geological data from published
conditions of sources and nearby
the seabed and sites.
provide (ii) Geophysical
sufficient data surveys of the
to develop a proposed area with
geologic model, sufficient areal
assess geologic coverage, depth
hazards, and penetration, and
determine the resolution to define
feasibility of the geological
the proposed conditions of the
facility. seabed at the site
that could impact,
or be impacted by,
the proposed
project.
(iii) Geotechnical
investigations of
sufficient scope and
detail to: ground
truth the
geophysical surveys;
support development
of a geological
model; assess
potential geological
hazards that could
impact the proposed
development; and
provide geotechnical
data for preliminary
design of the
facility, including
type and approximate
dimensions of the
foundation.
(iv) An overall site
characterization
report for your
facility that
integrates the
findings of your
studies, surveys,
and investigations;
describes the
geological model;
contains supporting
data and findings;
and states your
recommendations.
(2) Biological................ To determine the A description of the
presence of results of
biological biological surveys
features and used to determine
marine resources. the presence of live
bottoms, hard
bottoms, topographic
features, and other
marine resources,
including migratory
populations, such as
fish, marine
mammals, sea
turtles, and sea
birds.
(3) Archaeological resources To provide BOEM Archaeological
and other historic properties. with required resource and other
information to historic property
conduct review identification
of the GAP under surveys with
NHPA. supporting data.
(4) Meteorological and To provide an Desktop studies to
oceanographic (metocean). overall collect available
understanding of data from hindcast
the or re-analysis
meteorological models and field
and measurements in
oceanographic sufficient detail to
conditions at support preliminary
the site of the design of the
proposed facility and support
facility, and to the analysis of wake
identify effects, sediment
conditions that mobility and scour,
may pose a and navigation
significant risk risks.
to the facility.
------------------------------------------------------------------------
(c) If you are applying for a project easement, or constructing a
facility or a combination of facilities deemed by BOEM to be complex or
significant, you must provide the following additional information and
comply with the requirements of subpart H of this part:
------------------------------------------------------------------------
Project information: Including:
------------------------------------------------------------------------
(1) The construction and operation A discussion of the objectives,
concept. description of the proposed
activities, and tentative schedule
from start to completion.
(2) All cables and pipelines, The location, design, installation
including cables on project methods, testing, maintenance,
easements. repair, safety devices, exterior
corrosion protection, inspections,
and decommissioning.
(3) A general description of the (i) Under normal conditions.
operating procedures and systems. (ii) In the case of accidents or
emergencies, including those that
are natural or manmade.
(4) Construction schedule......... A reasonable schedule of
construction activity showing
significant milestones leading to
the commencement of activities
consistent with the requirements of
subpart H of this part.
(5) Other information............. Additional information as requested
by BOEM.
------------------------------------------------------------------------
[[Page 6045]]
* * * * *
0
112. Amend Sec. 585.646 by revising the section heading, introductory
text, and paragraphs (b)(2), (5), and (6) through (9) to read as
follows:
Sec. 585.646 What information and certifications must I submit with
my GAP to assist BOEM in complying with NEPA and other applicable laws?
You must submit, with your GAP, detailed information and analysis
to assist BOEM in complying with NEPA and other applicable laws.
* * * * *
(b) * * *
------------------------------------------------------------------------
------------------------------------------------------------------------
* * * * * * *
(2) Water quality................. Turbidity and total suspended solids
from construction; impact from
vessel discharges.
* * * * * * *
(5) Sensitive biological resources Essential fish habitat, refuges,
or habitats. preserves, special management areas
identified in coastal management
programs, marine protected areas,
including State and Federal coastal
and marine protected areas, as well
as nearby national marine
sanctuaries and nearby marine
national monuments, rookeries, hard
bottom habitat, chemosynthetic
communities, calving grounds,
barrier islands, beaches, dunes,
and wetlands.
(6) Archaeological resources use, To provide BOEM with required
other historic property use, information to conduct review of
Indigenous traditional cultural the COP under the NHPA or other
use, or use pertaining to treaty applicable laws or policies,
and reserved rights with Native including treaty and reserved
Americans or other Indigenous rights with Native Americans or
peoples. other Indigenous peoples.
(7) Social and economic conditions Employment, existing offshore and
coastal infrastructure (including
major sources of supplies,
services, energy, and water), land
use, subsistence resources and
harvest practices, recreation,
recreational and commercial fishing
(including typical fishing seasons,
location, and type), minority and
lower income groups, coastal zone
management programs, and a visual
impact assessment.
(8) Coastal and marine uses....... Military activities, vessel traffic,
fisheries, and exploration and
development of other natural
resources. This includes a
navigational safety risk assessment
that provides a description of the
predicted impacts of the project to
navigation, and the measures you
will use to avoid or minimize such
adverse impacts. This document also
must be submitted to the U.S. Coast
Guard to assist with its analysis
if your proposal identifies
potential impediments to safe
navigation.
(9) Consistency Certification..... If required by CZMA, under:
(i) 15 CFR part 930, subpart D, if
the GAP is submitted before lease
or grant issuance;
(ii) 15 CFR part 930, subpart E, if
the GAP is submitted after lease or
grant issuance.
* * * * * * *
------------------------------------------------------------------------
0
113. Amend Sec. 585.647 by revising paragraphs (a) and (b) to read as
follows:
Sec. 585.647 How will my GAP be processed for Federal consistency
under the Coastal Zone Management Act?
* * * * *
------------------------------------------------------------------------
------------------------------------------------------------------------
* * * * * * *
(a) Before lease or grant issuance You will furnish a copy of your GAP,
consistency certification, and
necessary data and information to
the applicable State CZMA agencies
if required by 15 CFR part 930,
subpart D. Submit a copy to BOEM
pursuant to Sec. 585.110.
(b) After lease or grant issuance. You will submit a copy of your GAP,
consistency certification, and
necessary data and information to
BOEM if required by 15 CFR part
930, subpart E. BOEM will forward
to the applicable State CZMA agency
or agencies one copy of your GAP,
consistency certification, and
necessary data and information
required under 15 CFR part 930,
subpart E, after BOEM has
determined that all information
requirements for the GAP are met.
------------------------------------------------------------------------
0
114. Amend Sec. 585.648 by revising paragraphs (a) introductory text
and (e)(2) to read as follows:
Sec. 585.648 How will BOEM process my GAP?
(a) BOEM will review your submitted GAP, along with the information
and certifications you submitted in compliance with Sec. 585.646, to
determine if it contains the information necessary to conduct our
technical and environmental reviews.
* * * * *
(e) * * *
(2) If we disapprove your GAP, we will inform you of the reasons
and allow you an opportunity to submit a revised plan addressing our
concerns, and we may suspend your lease or grant, as appropriate, to
give you a reasonable amount of time to resubmit the GAP.
0
115. Amend Sec. 585.652 by revising paragraph (a) to read as follows:
Sec. 585.652 How long do I have to conduct activities under an
approved GAP?
* * * * *
(a) For a limited lease, the time period established under Sec.
585.236(a)(2), unless we renew the term under Sec. Sec. 585.425
through 585.429.
* * * * *
0
116. Amend Sec. 585.655 by revising paragraphs (a) and (c) to read as
follows:
Sec. 585.655 What activities require a revision to my GAP, and when
will BOEM approve the revision?
(a) You must notify BOEM in writing before conducting any
activities not described in your approved GAP, describing in detail the
type of activities you propose to conduct. We will determine whether
the activities you propose are authorized by your existing
[[Page 6046]]
GAP or require a revision to your GAP. We may request additional
information from you, if necessary, to make this determination. Upon
receipt of your revised GAP, BOEM will make a determination as to
whether it deems the facility or combination of facilities described in
your revised GAP to be complex or significant.
(1) If BOEM determines that your revised GAP is not complex or
significant, you may conduct your approved activities in accordance
with Sec. 585.650.
(2) If BOEM determines that your revised GAP is complex or
significant, then you must comply with the requirements of Sec.
585.651.
* * * * *
(c) Activities for which a proposed revision to your GAP will
likely be necessary include:
(1) Activities not described in your approved GAP;
(2) Modifications to the number, size, or type of facilities or
equipment you will use;
(3) Changes in the geographical location or layout of bottom
disturbances, offshore facilities, or onshore support bases beyond the
range of possible locations described in your approved GAP;
(4) Structural failure of any facility; or
(5) Change to any other activity specified by BOEM.
* * * * *
0
117. Amend Sec. 585.657 by revising the first sentence to read as
follows:
Sec. 585.657 What must I do upon completion of approved activities
under my GAP?
Upon completion of your approved activities under your GAP, you
must decommission your project as set forth in subpart J of this part.
* * *
0
118. Amend Sec. 585.659 by revising paragraphs (a) introductory text
and (a)(1) and the second sentence of paragraph (b) to read as follows:
Sec. 585.659 What requirements must I include in my SAP, COP, or GAP
regarding air quality?
(a) Your SAP, COP, or GAP must address air quality as follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
* * * * * * *
(1) In the Gulf of Mexico west of include in your plan any information
87.5[deg] west longitude (western required for BOEM to make the
Gulf of Mexico) or offshore of appropriate air quality
the North Slope Borough of Alaska. determinations for your project.
* * * * * * *
------------------------------------------------------------------------
(b) * * * In the western Gulf of Mexico (west of 87.5[deg] west
longitude) and offshore of the North Slope Borough of Alaska, you must
submit to BOEM three copies of the modeling report and three sets of
digital files as supporting information. * * *
Subpart H--Facility Design, Fabrication, and Installation
0
119. Revise Sec. 585.700 to read as follows:
Sec. 585.700 What reports must I submit to BOEM before installing
facilities described in my approved SAP, COP, or GAP?
(a) You must submit the following reports to BOEM before installing
facilities described in your approved COP (Sec. 585.632(a)) and, when
required by this part, your SAP (Sec. 585.614(b)) or GAP (Sec.
585.651):
(1) A Facility Design Report (FDR); and
(2) A Fabrication and Installation Report (FIR).
(b) You may submit separate FDRs and FIRs for the major components
of your project as agreed to by BOEM on a case-by-case basis. If you
submit separate FDRs and FIRs by major components, you must explain to
BOEM how all major components detailed in the reports will function
together effectively in an integrated manner in accordance with your
project design, and you must demonstrate that such integration has been
verified by your CVA.
(c) You may submit your FDRs and FIRs before or after SAP, COP, or
GAP approval.
(d) Subject to the requirements in paragraph (b) of this section,
you may commence fabrication and installation of the facilities on the
OCS as described in each report:
(1) If BOEM deems your report submitted before SAP, COP, or GAP
approval and notifies you of its non-objection to the FDR and FIR or
does not respond with objections within 60 calendar days of SAP, COP,
or GAP approval; or
(2) If BOEM deems your report submitted after SAP, COP, or GAP
approval and notifies you of its non-objection to the FDR and FIR or
does not respond with objections within 60 calendar days of the report
being deemed submitted.
(e) You may commence procurement of discrete parts of the project
that are commercially available in standardized form and type-certified
components, or fabrication activities that do not take place on the OCS
(e.g., manufacturing), prior to the submittal of the reports required
under paragraph (a) of this section or any plans required under this
part. The procurement and fabrication of facility components allowed
under this subsection are subject to verification by your CVA, and BOEM
may object to the installation of said components on the OCS if it
considers that the components or their fabrication is inconsistent with
accepted industry or engineering standards, the approved SAP, COP, or
GAP, the FDR or FIR, or BOEM's regulations.
(f) If BOEM requires additional information or has objections, we
will notify you in writing within 60 calendar days of the report being
deemed submitted. Following initial notification of any objections,
BOEM may follow up with written correspondence detailing its objections
to the report and requesting that certain actions be undertaken. You
cannot commence fabrication or installation activities on the OCS that
are addressed in such reports until you resolve all objections to
BOEM's satisfaction.
0
120. Amend Sec. 585.701 by:
0
a. Revising paragraphs (a)(1) through (10);
0
b. Adding paragraphs (a)(11) through (14);
0
d. Revising paragraphs (b) and (d); and
0
e. Removing paragraph (e).
The revisions read as follows:
Sec. 585.701 What must I include in my Facility Design Report?
(a) * * *
[[Page 6047]]
------------------------------------------------------------------------
Required documents Required contents
------------------------------------------------------------------------
(1) Cover letter............. (i) Proposed facility designations:
(ii) Lease, ROW grant or RUE grant
number;
(iii) Area; name and block numbers; and
(iv) The type of facility.
(2) Location plat............ (i) Latitude and longitude coordinates,
Universal Mercator grid-system
coordinates, state plane coordinates in
the Lambert or Transverse Mercator
Projection System;
ii) Distances in feet from the nearest
block lines. These coordinates must be
based on the NAD (North American Datum)
83 datum plane coordinate system; and
(iii) The location of any project
easements.
(3) Front, Side, and Plan (i) Facility dimensions and orientation;
View drawings. (ii) Elevations relative to Mean Lower
Low Water; and
(iii) Pile sizes and penetration.
(4) Complete set of The approved for construction fabrication
structural drawings. drawings should be submitted including,
e.g.,
(i) Cathodic protections systems;
(ii) Jacket design;
(iii) Pile founations;
(iv) Mooring and tethering systems;
(v) Foundations and anchoring systems;
and
(vi) Associated cable and pipeline
designs.
(5) Summary of environmental A summary of the environmental data used
data used for design. in the design or analysis of the
facility. Examples of relevant data
include information on:
(i) Extreme weather
(ii) Seafloor conditions, and
(iii) Waves, wind, current, tides,
temperature, snow and ice effects,
marine growth, and water depth.
(6) Summary of the (i) Loading information (e.g., live,
engineering design data. dead, environmental);
(ii) Structural information (e.g., design-
life; material types; cathodic
protection systems; design criteria;
fatigue life; jacket design; deck
design; production component design;
foundation pilings and templates, and
mooring or tethering systems;
fabrication and installation
guidelines);
(iii) Location of foundation boreholes
and foundation piles;
(iv) Foundation information (e.g., soil
stability, design criteria); and
(v) For a floating facility, structural
integrity, stability, and ballast
information.
(7) A complete set of design Self-explanatory.
calculations.
(8) Project-specific All studies pertinent to facility design
studiesused in the facility or installation e,g., oceanographic and
design or installation. soil reports including the results of
the survey required in Sec. Sec.
585.610(b), 585.627(a), 585.645(a).
(9) Description of the loads (i) Loads imposed by the jacket;
imposed on the facility. (ii) Decks;
(iii) Production components;
(iv) Foundations, foundation pilings and
templates, and anchoring systems; and
(v) Mooring or tethering systems.
(10) Geotechnical and All data from geotechnical and
geophysical reports. geophysical surveys, in situ
explorations, laboratory tests,
analyses, burial or drivability
assessments, and recommended design
parameters.
(11) Archaeological resources All archaeological resource and historic
reports. property identification surveys with
supporting data that BOEM has authorized
you to submit with your FDR under Sec.
585.626(b)(3).
(12) Design Standards........ The industry standards you will apply to
ensure the facilities are designed to
meet Sec. 585.105.
(13) Critical Safety System.. A risk assessment that identifies the
critical safety systems and description
of the identified critical safety
systems.
(14) Other information....... Additional information required by BOEM.
------------------------------------------------------------------------
(b) You must submit your Facility Design Report to BOEM pursuant to
Sec. 585.110.
* * * * *
(d) If you are required to use a CVA, the FDR must include the
following verification statement: ``The design of this structure has
been verified by a BOEM-approved CVA to be in accordance with accepted
engineering practices and the approved SAP, GAP, or COP, as applicable,
and has been designed to provide for safety. The verified design and
as-built plans and specifications will be on file at [provide
location].''
0
121. Amend Sec. 585.702 by:
0
a. Revising paragraphs (a)(1) through (7);
0
b. Adding paragraphs (a)(8) through (10);
0
d. Removing paragraph (d);
0
e. Redesignating paragraphs (b) and (c) as paragraphs (d) and (e),
respectively;
0
f. Adding new paragraphs (b) and (c); and
0
g. Revising newly redesignated paragraph (e).
The revisions and additions read as follows:
Sec. 585.702 What must I include in my Fabrication and Installation
Report?
(a) * * *
------------------------------------------------------------------------
Required documents Required contents
------------------------------------------------------------------------
(1) Cover letter.................. (i) Proposed facility designation,
lease, ROW grant, or RUE grant
number;
(ii) Area, name, and block number;
and (iii) The type of facility.
(2) Schedule...................... Fabrication and installation.
(3) Fabrication information....... The industry standards you will use
to ensure the facilities are
fabricated to the design criteria
identified in your Facility Design
Report.
[[Page 6048]]
(4) Installation process Details associated with the
information. deployment activities, equipment,
and materials, including onshore
and offshore equipment and support,
and anchoring and mooring patterns.
(5) Federal, State, and local Either 1 copy of the permit or
permits (e.g., EPA, Army Corps of information on the status of the
Engineers). application.
(6) Quality assurance............. Certificates ensuring adherence to a
recognized quality assurance
standard. Alternate means of
compliance must be approved on a
case-by-case basis.
(7) Environmental information..... (i) Water discharge;
(ii) Waste disposal;
(iii) Vessel information;
(iv) Onshore waste receiving
treatment or disposal facilities;
and
(v) If you submitted this data as
part of your SAP, COP, or GAP, you
may incorporate by reference.
(8) Commissioning procedures for Original equipment manufacturer
critical safety systems. procedures or other BOEM approved
procedures for commissioning of
critical safety systems as
identified in Sec.
585.701(a)(13).
(9) Project easement.............. Design of any cables, pipelines, or
facilities. Information on burial
methods and vessels.
(10) Other information............ Additional information required by
BOEM.
------------------------------------------------------------------------
(b) You must submit your FIR to BOEM pursuant to Sec. 585.110.
(c) You may submit a request for any project easement and
supporting information as part of your original FIR submission or as a
revision to it.
* * * * *
(e) If you are required to use a CVA, the FIR must include the
following verification statement: ``The fabrication and installation of
this structure has been verified by a BOEM-approved CVA to be in
accordance with accepted engineering practices, the FDR, and the
approved SAP, GAP, or COP, as applicable. The verified design and as-
built plans and specifications will be on file at [provide location].''
0
122. Amend Sec. 585.703 by revising paragraphs (a) and (c) to read as
follows:
Sec. 585.703 What reports must I submit for project modifications and
repairs?
(a) You must demonstrate in a report to us that major repairs and
major modifications to a completed project conform to accepted
engineering practices.
(1) A ``major repair'' is a corrective action involving structural
members affecting the structural integrity of all or a portion of the
facility or substantial repair of a critical safety system(s),
including those identified in your FDR.
(2) A ``major modification'' is an alteration involving structural
members affecting the structural integrity of all or a portion of the
facility or substantial alteration of a critical safety system(s),
including those as identified in your FDR.
* * * * *
(c) If you are required to use a CVA, the report described in
paragraph (a) of this section must include the following verification
statement: ``The [modification or repair] of this [structure or
critical safety system] has been verified by a BOEM-approved CVA to be
in accordance with accepted engineering practices, the FDR, and the
approved SAP, GAP, or COP as applicable.''
0
123. Add Sec. 585.704 to read as follows:
Sec. 585.704 After receiving the FDR, FIR, or project verification
reports, what will BOEM do?
(a) Determine whether the report is deemed submitted. Within 20
calendar days after receiving your proposed FDR, FIR, or project
verification report, BOEM will review your submission and deem your
FDR, FIR, or project verification report submitted provided that your
submission is sufficiently complete and accurate to fulfill the
applicable requirements of Sec. 585.701, Sec. 585.702, or Sec.
585.712.
(b) Identify problems and deficiencies. If BOEM determines that you
have not met the conditions in paragraph (a) of this section, BOEM will
notify you of the problem or deficiency within 20 calendar days after
BOEM receives your FDR, FIR, or project verification report. BOEM will
not deem your FDR, FIR, or project verification report submitted until
you have corrected all problems or deficiencies identified in the
notice.
(c) Notify you when the report is deemed submitted. BOEM will
notify you when the FDR, FIR, or project verification report is deemed
submitted. If BOEM has not notified you within 20 calendar days that
your report has problems or deficiencies, you may consider it deemed
submitted.
0
124. Revise Sec. 585.705 to read as follows:
Sec. 585.705 When must I use a Certified Verification Agent (CVA)?
(a) Unless BOEM waives this requirement under paragraph (c) of this
section, you must use one or more CVAs to review and verify your FDRs,
FIRs, and the Project Modification and Repair Reports.
(b) The purpose of a CVA is to:
(1) Ensure that your facilities are designed, fabricated, and
installed in conformance with accepted engineering practices and the
Facility Design Report and Fabrication and Installation Report;
(2) Ensure critical safety systems are commissioned in accordance
with the procedures identified in Sec. 585.702(a)(8);
(3) Ensure that major repairs and major modifications are completed
in conformance with accepted engineering practices; and
(4) Provide BOEM and you with immediate reports of all incidents
that affect the facility design, fabrication, and installation,
including commissioning of critical safety systems, for the project and
its components.
(c) BOEM may waive in whole or in part the requirement that you use
a CVA if you can demonstrate the following:
------------------------------------------------------------------------
Then BOEM may waive the
If you demonstrate that . . . requirement for a CVA for
the following:
------------------------------------------------------------------------
(1) The facility design conforms to a The design of your
standard design that has been used structure(s).
successfully in a similar environment, and
the installation design conforms to
accepted engineering practices.
[[Page 6049]]
(2) The relevant fabricator has The fabrication of your
successfully fabricated similar structure(s).
facilities, and the facility will be
fabricated in conformance with accepted
engineering practices and to a recognized
quality assurance standard. Alternate
means of quality assurance compliance must
be approved on a case-by-case basis.
(3) The relevant installation companies The installation of your
have successfully installed similar structure(s).
facilities in a similar offshore
environment, and your structures will be
installed in conformance with accepted
engineering practices.
(4) Major repairs or major modifications The major repair or major
will be completed in conformance with modification of your
accepted engineering practices and to a structure(s).
recognized quality assurance standard.
Alternate means of quality assurance
compliance must be approved on a case-by-
case basis.
------------------------------------------------------------------------
(d) You must submit a request to waive, in whole or in part, the
requirement to use a CVA to BOEM in writing.
(1) BOEM will review your request to waive, in whole or in part,
the use of the CVA and notify you of its decision.
(2) If BOEM does not waive, in whole or in part, the requirement
for a CVA, you may file an appeal under Sec. 585.118.
(3) If BOEM waives, in whole or in part, the requirement that you
use a CVA, your project engineer must perform the same duties and
responsibilities as would have the CVA, except as otherwise provided.
0
125. Amend Sec. 585.706 by revising paragraphs (a), (b)(2) and (7),
and (c) through (e) to read as follows:
Sec. 585.706 How do I nominate a CVA for BOEM approval?
(a) A CVA must be nominated and approved by BOEM before conducting
any verification activities for which it has been nominated. If you
intend to use multiple CVAs, you must nominate a general project CVA
who will manage the project verification strategy and who will ensure
consistency and oversight among the CVAs, especially in transition
areas between different CVAs. The general project CVA must be nominated
no later than COP submission.
(b) * * *
(2) Technical capabilities of the individual or the primary staff
for the specific project, including relevant professional licenses,
certifications, and accreditations;
* * * * *
(7) The scope and level of work to be performed by the CVA,
including all relevant reports and facilities that the CVA will verify.
(c) Individuals or organizations acting as CVAs must not function
in any capacity that will create a conflict of interest or the
appearance of a conflict of interest. The CVA must not have prepared,
or been directly involved in, any original work related to the
preparation of design, fabrication, installation, modification, or
repair plans for which it will provide verification services.
(d) The verification must be conducted by or under the direct
supervision of a registered professional engineer.
(e) BOEM will approve or disapprove your CVA.
* * * * *
0
126. Amend Sec. 585.707 by:
0
a. Revising the second sentence of paragraph (a);
0
b. Removing ``and'' from paragraph (b)(8);
0
c. Redesignating paragraph (b)(9) as paragraph (b)(11);
0
d. Adding new paragraph (b)(9) and paragraph (b)(10); and
0
e. Removing paragraph (c).
The revisions and additions read as follows:
Sec. 585.707 What are the CVA's primary duties for facility design
review?
(a) * * * The CVA must verify to BOEM that the facility is designed
to withstand the environmental and functional load conditions
appropriate for the intended service life at the proposed location and
has been designed to provide for safety.
(b) * * *
(9) Design for human safety and accident prevention;
(10) For a floating facility, structural integrity, stability, and
ballast; and
* * * * *
0
127. Amend Sec. 585.708 by revising paragraphs (a)(1), (2), and (5),
adding paragraphs (a)(6) and (7), and revising paragraph (b) to read as
follows:
Sec. 585.708 What are the CVA's or project engineer's primary duties
for fabrication and installation review?
(a) * * *
(1) Use good engineering judgment and practice in conducting an
independent assessment of the fabrication and installation activities
and of the commissioning of critical safety systems;
(2) Monitor the fabrication and installation of the facility and
the commissioning of critical safety systems as required by paragraph
(b) of this section;
* * * * *
(5) Verify in a report that project components are fabricated and
installed in accordance with accepted engineering practices and to a
recognized quality assurance standard or to an equivalent alternate
means of quality assurance considered on a case-by-case basis, your
approved SAP, COP, or GAP (as applicable), and your FIR. If multiple
CVAs are involved in your project, the general project CVA must submit
the final report containing such verification for the project.
(i) The report must identify the location of all records pertaining
to facility fabrication and installation as required in Sec.
585.714(c); and
(ii) You may commence commercial operations or other approved
activities 30 days after BOEM receives that verification report, unless
BOEM notifies you within that time period of its objections to the
verification report.
(6) Provide records documenting that critical safety systems are
commissioned in accordance with the procedures identified in Sec.
585.702(a)(8); and
(7) Identify the location of all records pertaining to
commissioning of critical safety systems, as required in Sec.
585.714(c).
(b) To comply with paragraph (a)(5) of this section, the CVA or
project engineer must monitor the fabrication and installation of the
facility and the commissioning of critical safety systems to verify
that it has been built and installed according to your FDRs and FIRs.
(1) If the CVA or project engineer finds that either fabrication
and installation procedures or safety system commissioning procedures,
or both, have been changed or design specifications have been modified,
the CVA or project engineer must inform you; and
(2) If you accept the modifications, you must also inform BOEM.
0
128. Revise Sec. 585.709 to read as follows:
[[Page 6050]]
Sec. 585.709 When conducting onsite fabrication inspections, what
must the CVA or project engineer verify?
(a) To comply with Sec. 585.708(a)(3), the CVA or project engineer
must make periodic onsite inspections while fabrication is in progress
and must verify the following fabrication items, as appropriate:
(1) Quality control by lessee (or grant holder) and builder;
(2) Fabrication site facilities;
(3) Material quality and identification methods;
(4) Fabrication procedures specified in your FIRs and adherence to
such procedures;
(5) Welder and welding procedure qualification and identification;
(6) Structural tolerances specified, and adherence to those
tolerances;
(7) Nondestructive examination requirements and evaluation results
of the specified examinations;
(8) Destructive testing requirements and results;
(9) Repair procedures;
(10) Installation of corrosion-protection systems and splash-zone
protection;
(11) Erection procedures to ensure that overstressing of structural
members does not occur;
(12) Alignment procedures;
(13) Dimensional check of the overall structure, including any
turrets, turret-and-hull interfaces, any mooring line and chain and
riser tensioning line segments; and
(14) Status of quality-control records at various stages of
fabrication.
(b) For a floating facility, the CVA or project engineer must
verify the structural integrity, stability, and ballast.
0
129. Revise Sec. 585.710 to read as follows:
Sec. 585.710 When conducting onsite installation inspections, what
must the CVA or project engineer do?
To comply with Sec. 585.708(a)(4), the CVA or project engineer
must make periodic onsite inspections while installation is in progress
and must, as appropriate, verify, witness, survey, or check the
installation items required by this section.
(a) To comply with Sec. 585.708(a)(4), the CVA or project engineer
must make periodic onsite inspections while installation is in progress
and must verify the installation and commissioning items required by
this section.
(b) The CVA or project engineer must verify, as appropriate, all of
the following:
(1) Loadout and initial flotation procedures;
(2) Towing operation procedures to the specified location,
including a review of the towing records;
(3) Launching and uprighting activities;
(4) Submergence activities;
(5) Pile or anchor installations;
(6) Installation of mooring and tethering systems;
(7) Final deck and component installations;
(8) Installation at the locations set forth in your FDR(s) and
FIR(s); and
(9) Commissioning of critical safety systems.
(c) For a fixed or floating facility, the CVA or project engineer
must verify that proper procedures were used during the following:
(1) The loadout of the jacket, decks, piles, or structures from
each fabrication site;
(2) The actual installation of the facility or major modification
and the related installation activities; and
(3) Commissioning of critical safety systems.
(d) For a floating facility, the CVA or project engineer must
verify that proper procedures were used during the following:
(1) The loadout of the facility;
(2) The installation of foundation pilings and templates, and
anchoring systems; and
(3) The installation of the mooring and tethering systems.
(e) The CVA or project engineer must conduct an onsite inspection
of the installed facility.
(f) The CVA or project engineer must make periodic onsite
inspections to witness the commissioning of critical safety systems in
order to verify that:
(1) The systems and equipment function as designed; and
(2) The final commissioning records are complete.
(g) The CVA or project engineer must spot-check the equipment,
procedures, and recordkeeping as necessary to determine compliance with
the applicable documents incorporated by reference and the regulations
under this part.
0
130. Amend Sec. 585.712 by:
0
a. Revising paragraph (a) and the first sentence of paragraph (b)
introductory text;
0
c. Removing ``and'' at the end of paragraph (b)(3);
0
d. Removing the period at the end of paragraph (b)(4) and adding in its
place ``; and''; and
0
e. Adding paragraph (b)(5).
The revisions and addition read as follows:
Sec. 585.712 What are the CVA's or project engineer's reporting
requirements?
(a) The CVA or project engineer must prepare and submit to you and
BOEM all reports and records required by this subpart. The CVA or
project engineer must also submit interim reports to you and BOEM, as
requested by BOEM.
(b) For each report required by this subpart, the CVA or project
engineer must submit the final report to BOEM pursuant to Sec.
585.110. * * *
* * * * *
(5) Summarize any issues with the design and any incidents during
facility fabrication and installation, or critical safety system
commissioning, and how those issues were resolved.
Sec. 585.713 [Reserved and Reserved]
0
131. Remove and reserve Sec. 585.713.
0
132. Amend Sec. 585.714 by:
0
a. Revising the section heading;
0
b. Redesignating paragraphs (a)(4) and (5) as paragraphs (a)(5) and
(6), respectively;
0
c. Adding new paragraph (a)(4); and
0
d. Revising paragraph (c).
The revisions and addition read as follows:
Sec. 585.714 What records relating to FDRs, FIRs, and Project
Modification and Repair Reports must I keep?
(a) * * *
(4) The records of the commissioning of critical safety systems;
* * * * *
(c) You must provide BOEM with the location of these records in the
certification statement, as required in Sec. Sec. 585.701(c),
585.703(b), and 585.708(a)(5)(i) and (a)(6).
Subpart I--Environmental and Safety Management, Inspections, and
Facility Assessments for Activities Conducted Under SAPs, COPs, and
GAPs
Sec. 585.803 [Amended]
0
133. Amend Sec. 585.803 in the first sentence of paragraph (b) by
removing the word ``affects'' and adding in its place the word
``effects''.
0
134. Revise Sec. 585.810 to read as follows:
Sec. 585.810 When must I submit a Safety Management System (SMS) and
what must I include in my SMS?
You are required to use a Safety Management System (SMS) for
activities conducted on the OCS to develop or operate a lease, from met
buoy placement and site assessment work through decommissioning, and to
provide your SMS to BOEM upon request. You must also submit a detailed
description of the SMS with your COP (as provided under Sec.
585.627(d)) and,
[[Page 6051]]
when required by this part, your SAP (as provided in Sec. 585.614(b))
or GAP (as provided in Sec. 585.651). Your SMS must address:
(a) How you will ensure the safety of your personnel or anyone else
on or near your facilities, such as:
(1) Health and safety risks that anyone on or near your facilities
are likely to face during activities covered by the SMS;
(2) Policies and strategies that will be used to control such
risks;
(3) Procedures and published standards that will be followed to
ensure the safety of the activities covered by the SMS;
(4) Tools that will be used to monitor the implementation of the
SMS and maintain the safety of activities covered by the SMS, including
management of change and stop work practices; and
(5) Procedures for personnel to report unsafe work conditions both
to the lessee or its designated operator and to BOEM.
(b) Remote monitoring, control, and shut down capabilities, such
as:
(1) Aspects of operations and mechanical and structural integrity
that will be monitored remotely;
(2) Circumstances under which remote monitoring will be activated
and how it will be maintained;
(3) Maintenance of the security of the remote sensing and control
capabilities;
(4) Monitoring of conditions if remote sensing equipment fails; and
(5) Conditions that will result in the shut-down of one or more
facilities.
(c) Emergency response procedures, such as:
(1) Types of incidents to be addressed (e.g., serious injury to
workers during maintenance, unexploded ordnance encountered during
construction, damage due to hurricane or allision by vessels or
aircraft, unauthorized access into remote monitoring capabilities);
(2) Potential response activities, including contractor support,
for each category of incident;
(3) Management controls, authorities, and reporting to be employed
for each response;
(4) Locations from which emergency response will be controlled; and
(5) Resources available to assist in the response.
(d) Fire suppression equipment, such as a description of how and
when it will be used, if needed;
(e) How and when you will test your SMS, such as:
(1) Plans, processes, and schedules for:
(i) Self or third-party auditing of the SMS; and
(ii) Regular testing of certain SMS components, including remote
shut-down capabilities and emergency response readiness; and
(2) Corrective action processes to improve the effectiveness of
your SMS based on the results of audits, tests, investigations of
incidents (including near-misses), feedback from the field, and other
information sources.
(f) How you will ensure personnel who conduct activities on your
facilities are properly trained and have the capability to safely
perform duties, such as:
(1) Required training for personnel who conduct activities on your
facilities; and
(2) Mechanisms to ensure that personnel have the required knowledge
and skills to perform duties safely for the duration of activities.
0
135. Revise Sec. 585.811 to read as follows:
Sec. 585.811 Am I required to obtain a certification of my SMS?
You are not required to obtain a certification that your SMS meets
acceptable health and safety standards (e.g., ANSI Z10, ISO/IEC 45001)
from a recognized accreditation organization. However, BOEM will
consider such certification in determining the frequency and scope of
SMS-related inspections that it conducts under this subpart, as well as
the scope and nature of its oversight over any audit-induced corrective
actions.
0
136. Add Sec. 585.812 to read as follows:
Sec. 585.812 How must I implement my SMS?
(a) Your SMS must be functional before you begin, and must remain
functional while you perform, any activity on the OCS pursuant to a
lease, including met buoy placement and site assessment work, or for
any activities described in your approved SAP, COP, or GAP. You must
conduct all activities described in your approved SAP, COP, or GAP in
accordance with the SMS you described under Sec. 585.810.
(b) You must regularly demonstrate to BOEM that your SMS is being
implemented effectively by submitting the following to BOEM in
accordance with Sec. 585.110:
(1) By March 31 of each year, summarize safety, work hour, and
electric generation performance data for the prior calendar year in
which you conducted site assessment, construction, operations, or
decommissioning activities in accordance with your lease terms, using a
form available on the BOEM website; and
(2) Once every 3 years or upon BOEM's request, provide a report to
BOEM summarizing the results of your most recent SMS audit, corrective
actions implemented or being implemented as a result of that audit, and
an updated description of your SMS highlighting changes that were made
since the last such submission to BOEM.
0
137. Amend Sec. 585.815 by revising the second sentence of paragraph
(a) to read as follows:
Sec. 585.815 What must I do if I have facility damage or an equipment
failure?
(a) * * * If you have a major repair, you must submit a report to
BOEM under Sec. 585.703.
* * * * *
0
138. Revise Sec. 585.820 to read as follows:
Sec. 585.820 Will BOEM conduct inspections?
BOEM may inspect OCS facilities and any vessels engaged in
activities authorized under this part. When we conduct these
inspections, we will:
(a) Verify that you are conducting activities in compliance with
subsection 8(p) of the OCS Lands Act; the regulations in this part; the
terms, conditions, and stipulations of your lease or grant; approved
plans; and other applicable laws and regulations.
(b) Determine whether proper safety equipment has been installed
and is operating properly according to your SMS, as required in Sec.
585.810.
0
139. Revise Sec. 585.821 to read as follows:
Sec. 585.821 Will BOEM conduct scheduled and unscheduled inspections?
BOEM may conduct both scheduled and unscheduled inspections.
0
140. Amend Sec. 585.822 by revising paragraphs (a)(1) and (b) to read
as follows:
Sec. 585.822 What must I do when BOEM conducts an inspection?
(a) * * *
(1) Provide access to all facilities on your lease (including your
project easement) or grant and any vessels engaged in activities
authorized under this part; and
* * * * *
(b) You must retain the records referenced in paragraph (a)(2)(iii)
of this section until BOEM releases your financial assurance under
Sec. 585.534, and provide them to BOEM upon request within the time
period specified by BOEM.
* * * * *
0
143. Revise Sec. 585.824 as follows:
Sec. 585.824 How must I conduct self-inspections?
(a) You must develop a comprehensive self-inspection plan
[[Page 6052]]
covering all of your facilities. You must keep this self-inspection
plan wherever you keep your records and make it available to BOEM upon
request. Your self-inspection plan must specify:
(1) The type, extent, and frequency of inspections that you will
conduct for both the above-water and the below-water structures of all
facilities and pertinent components of the mooring systems for any
floating facilities;
(2) How you will monitor the corrosion protections for both above-
water and below-water structures; and
(3) How you will fulfill the requirement for annual on-site
inspection of all safety equipment designed to prevent or ameliorate
fires, spillages, or other major accidents under paragraph (b) of this
section.
(b) You must conduct an onsite inspection of each of your
facilities at least once a year. This inspection must include, but is
not limited to, all safety equipment designed to prevent or ameliorate
fires, spillages, or other major accidents.
(1) You must develop and retain summary reports for all such
inspections for each calendar year. The summary report must note any
failures of operability, required maintenance of critical safety
equipment, or required replacement of the critical safety equipment
identified during inspection.
(2) You must retain records of inspections and summary reports for
the previous 2 calendar years and make them available to BOEM on
request.
(c) You must submit a report annually to us no later than November
1 that must include:
(1) A list of facilities inspected for structural condition and
corrosion protection in the preceding 12 months;
(2) The type of inspection employed, (i.e., visual, magnetic
particle, ultrasonic testing); and
(3) A summary of the inspection indicating what repairs, if any,
were needed and the overall structural condition of the facility.
Sec. 585.830 [Amended]
0
142. Amend Sec. 585.830 in paragraph (d) by removing ``30 CFR 254.46''
and adding in its place ``30 CFR 250.187(d)''.
Subpart J--Decommissioning
0
143. Amend Sec. 585.900 by adding paragraph (c) to read as follows:
Sec. 585.900 Who must meet the decommissioning obligations in this
subpart?
* * * * *
(c) If a lessee or grant holder has installed a facility on a lease
or grant that was authorized by an authority other than BOEM and that
approving authority has imposed a decommissioning obligation, such
obligation will substitute for the requirements of this subpart. The
decommissioning requirements in this subpart will apply to such a
facility if the authorizing agency has not imposed or enforced a
decommissioning obligation.
0
144. Amend Sec. 585.902 by revising paragraph (a) introductory text to
read as follows:
Sec. 585.902 What are the general requirements for decommissioning
for facilities authorized under my SAP, COP, or GAP?
(a) Except as otherwise authorized by BOEM under Sec. 585.909,
within 2 years following termination of a lease or grant, or earlier if
BOEM determines a facility is no longer useful for operations, you
must:
* * * * *
0
145. Amend Sec. 585.905 by adding paragraph (e) to read as follows:
Sec. 585.905 When must I submit my decommissioning application?
* * * * *
(e) Ninety (90) days after BOEM determines a facility is no longer
useful for operations.
Subpart K--Rights-of-Use and Easement for Energy- and Marine-
Related Activities Using Existing OCS Facilities
0
146. Revise the heading of newly redesignated subpart K to read as set
forth above.
0
147. Amend Sec. 585.1005 by revising paragraphs (a) and (b)(2) and (3)
to read as follows:
Sec. 585.1005 How do I request an Alternate Use RUE?
* * * * *
(a) The name, address, email address, and phone number of each
owner and an authorized representative, if applicable.
(b) * * *
(2) A description of the existing OCS facility, including a map
providing its location on the OCS and the relevant lease block or lease
area, as applicable;
(3) If the facility is an oil, gas, or sulfur facility, provide the
name of each operator, lessee, and any owner of operating rights, as
defined in 30 CFR 550.105; for any other type of facility, provide the
name of any operators, a description of the facility, and its use;
* * * * *
Sec. 585.1018 [Amended]
0
148. Amend Sec. 585.1018 in paragraph (b) by removing ``30 CFR part
250'' and adding in its place ``30 CFR part 556''.
[FR Doc. 2023-00668 Filed 1-27-23; 8:45 am]
BILLING CODE 4340-98-P