[Federal Register Volume 76, Number 94 (Monday, May 16, 2011)]
[Rules and Regulations]
[Pages 28178-28180]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-11908]
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DEPARTMENT OF THE INTERIOR
Bureau of Ocean Energy Management, Regulation and Enforcement
30 CFR Part 285
[Docket ID: BOEM-2010-0045]
RIN 1010-AD71
Renewable Energy Alternate Uses of Existing Facilities on the
Outer Continental Shelf--Acquire a Lease Noncompetitively
AGENCY: Bureau of Ocean Energy Management, Regulation and Enforcement
(BOEMRE), Interior.
ACTION: Final rule.
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SUMMARY: This final rule revises BOEMRE regulations that pertain to
noncompetitive acquisition of an Outer Continental Shelf (OCS)
renewable energy lease. We are taking this action because under the
current regulations the process for acquiring a lease noncompetitively
that is initiated by an unsolicited request is inconsistent with the
process for acquiring a lease noncompetitively that is initiated by
BOEMRE. By revising regulations which govern the lease acquisition
process starting with submission of an unsolicited request, and
regulations which govern the lease acquisition process starting with
BOEMRE issuance of a Request for Interest (RFI) or a Call for
Information and Nomination (Call), this rulemaking will make the two
processes consistent with each other.
DATES: Effective Date: This final rule is effective June 15, 2011.
FOR FURTHER INFORMATION CONTACT: Timothy Redding at (703) 787-1219.
SUPPLEMENTARY INFORMATION:
Background
As originally written, Sec. 285.231 allowed the award of a
noncompetitive lease after BOEMRE received an unsolicited request for a
noncompetitive lease if BOEMRE determined that there was no competitive
interest after publishing a single notice of a request for interest
relating to the unsolicited request for a noncompetitive lease. As
originally written, Sec. 285.232 provided that if BOEMRE published an
RFI or Call resulting in a single expression of interest in a discrete
portion within the RFI or Call area, BOEMRE could offer a lease for
that area through a noncompetitive process only if it also issued a
notice of request for interest as required by Sec. 285.231(b) and
subsequently determined that there was no competitive interest based on
responses to that notice.
BOEMRE believes that the requirement for another notice following
an RFI or Call was redundant and was at odds with the noncompetitive
process prescribed for cases in which a party submitted an unsolicited
request for an OCS renewable energy lease, where BOEMRE is required to
publish only a single notice. The final rule revises Sec. 285.232(c)
to refer to the process outlined in Sec. 285.231(d) through (i) rather
than Sec. 285.231(b) through (i), thereby eliminating this discrepancy
by requiring only one RFI notice for determining competitive interest
in all cases. This will make BOEMRE's leasing processes more
streamlined and efficient while maintaining BOEMRE's obligations to
notify the public of areas that may be leased, to solicit public input
regarding those areas, and to determine whether competitive interest
exists in acquiring leases in those areas.
Comments on the Proposed Rule
BOEMRE published a proposed rule on February 16, 2011 (76 FR 8962),
and received a total of 76 comments.
The Offshore Wind Development Coalition, the National Hydropower
Association, Offshore MW LLC, the American Wind Energy Association, and
the National Wildlife Federation expressed support for revising the
rule as proposed and endorsed BOEMRE's rationale for doing so.
The Alliance to Protect Nantucket Sound (APNS) and the Oceans
Public Trust Initiative (OPTI) objected to revising the rule and
objected to BOEMRE's rationale. The APNS stated that the proposed rule
would promote a land rush attitude, diminish competition, and
marginalize public review by shortening the environmental review
process for OCS wind developers. The OPTI stated that it appears that
the sole purpose for revising the regulations appears to be to make
leasing move more quickly, which could be at the expense of more
careful and balanced review. The OPTI also stated that revising the
rule as proposed promotes collusion among industry participants.
Defenders of Wildlife did not explicitly offer an opinion in favor of
or in opposition to the proposed rule revision. However, it stated
that, ``In proposing to arbitrarily set a new criteria for an expedited
accelerated permitting process solely on the basis of the number of
applicants for a lease at a particular location, BOEMRE appears to
ignore in this rulemaking any and all parameters that make a particular
location unique * * *.''
BOEMRE received 68 comments from private citizens, 3 that expressed
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support for revising the rule, 55 that expressed opposition (including
50 form letters), and 10 that were not germane to the rulemaking. The
comments supporting the rule revision stated that it will promote more
efficient noncompetitive leasing processes without curtailing public
input and environmental review procedures. The comments opposing the
rule revision asserted that it will reduce or eliminate competition,
thereby promoting an offshore land rush for renewable energy leases,
and will marginalize the public review process.
After reviewing the comments on the proposed rule, BOEMRE has
concluded that there is no compelling reason not to promulgate the
final rule. As we have maintained throughout this rulemaking, the
revision of the regulations will eliminate inefficiency and provide
consistency while preserving adequate opportunity for public notice and
review in BOEMRE noncompetitive leasing processes. The final rule will
have no effect on the environmental review process carried out pursuant
to the requirements in the National Environmental Policy Act. In
response to concerns that the proposed rule will diminish competition,
the final rule will have no effect on competition and is fully
consistent with BOEMRE's obligations under subsection 8(p) of the OCS
Lands Act, as amended, to offer OCS renewable energy leases on a
competitive basis unless we determine, after public notice of a
proposed lease, that there is no competitive interest. BOEMRE leasing
processes under the renewable energy regulatory framework, as revised
by this final rule, will continue to provide for thorough BOEMRE review
of all relevant environmental and cultural criteria, as well as public
participation. Consequently, we believe the final rule will have no
effect whatsoever on potential collusion among offshore renewable
energy developers.
Regulatory Requirements
Regulatory Planning and Review (Executive Order (E.O.) 12866)
This final rule is not a significant rule as defined by the Office
of Management and Budget (OMB) and is not subject to review under E.O.
12866.
(1) This final rule will not have an annual effect of $100 million
or more on the economy. It will not adversely affect in a material way
the economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities.
(2) This final rule will not create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency.
The final rule will eliminate unnecessary redundancy and inefficiency.
(3) This final rule will not alter the budgetary effects of
entitlements, grants, user fees, or loan programs or the rights or
obligations of their recipients.
(4) This final rule will not raise novel legal or policy issues
arising out of legal mandates, the President's priorities, or the
principles set forth in E.O. 12866.
Regulatory Flexibility Act
The Department of the Interior certifies that this final rule will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The Department prepared a regulatory flexibility analysis for 30 CFR
part 285 and concluded that the regulations will impact a substantial
number of small entities, but will not have a significant economic
impact on the small entities in comparison to the impacts on large
entities. That analysis was discussed in detail in the Notice of
Proposed Rulemaking for 30 CFR part 285 published in the Federal
Register on July 9, 2008 (73 FR 39376).
The North American Industry Classification System (NAICS) code for
the industries affected by this rule is 221119 (Other Electric Power
Generation). The definition for this code is:
``This U.S. industry comprises establishments primarily engaged in
operating electric power generation facilities (except hydroelectric,
fossil fuel, nuclear). These facilities convert other forms of energy,
such as solar, wind, or tidal power, into electrical energy. The
electric energy produced in these establishments is provided to
electric power transmission systems or to electric power distribution
systems.''
It is possible that this final rule could eventually affect
entities that produce hydrogen and fall under NAICS Code 325120
(Industrial Gas Manufacturing). The definition for this code is:
``This industry comprises establishments primarily engaged in
manufacturing industrial organic and inorganic gases in compressed,
liquid, or solid forms.''
Given the original findings of the regulatory flexibility analysis
done for 30 CFR part 285, as well as the minor adjustment to the
renewable energy leasing process that is accomplished, this final rule
will not have a significant effect on a substantial number of small
entities.
Small Business Regulatory Enforcement Fairness Act
This final rule is not a major rule under the Small Business
Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq.). This final
rule:
a. Will not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Will not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises. The
requirements will apply indiscriminately to entities intending to
acquire a renewable energy lease on the OCS pursuant to 30 CFR part
285.
Unfunded Mandate Reform Act of 1995
This final rule will not impose an unfunded mandate on State,
local, or Tribal governments or the private sector of more than $100
million per year. The final rule will not have a significant or unique
effect on State, local, or Tribal governments or the private sector. A
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1501 et seq.) is not required.
Takings Implication Assessment (E.O. 12630)
Under the criteria in E.O. 12630, this final rule does not have
significant takings implications. The final rule is not a governmental
action capable of interference with constitutionally protected property
rights. A Takings Implication Assessment is not required.
Federalism (E.O. 13132)
Under the criteria in E.O. 13132, this final rule does not have
federalism implications. This final rule will not substantially and
directly affect the relationship between the Federal and State
Governments. To the extent that State and local governments have a role
in OCS activities, this final rule will not affect that role. A
Federalism Assessment is not required.
Civil Justice Reform (E.O. 12988)
This final rule complies with the requirements of E.O. 12988.
Specifically, this final rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written
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in clear language and contain clear legal standards.
Consultation With Indian Tribes (E.O. 13175)
Under the criteria in E.O. 13175, we have evaluated this final rule
and determined that it has no substantial effects on Federally
recognized Indian Tribes.
Paperwork Reduction Act (PRA)
This final rulemaking does not contain new information collection
requirements; therefore, an OMB submission under the PRA (44 U.S.C.
3501 et seq.) is not required. The PRA provides that an agency may not
conduct or sponsor a collection of information unless it displays a
currently valid OMB control number. Until OMB approves a collection of
information and assigns a control number, you are not required to
respond. The revisions in this final rulemaking refer to, but will not
change, information collection requirements in 30 CFR part 285. The OMB
approved the information collection requirements contained in 30 CFR
part 285 under OMB Control Number 1010-0176 (expiration 3/31/2013).
National Environmental Policy Act of 1969
This final rule does not constitute a major Federal action
significantly affecting the quality of the human environment. BOEMRE
has analyzed this final rule under the criteria of the National
Environmental Policy Act (NEPA) and the Department's regulations
implementing NEPA. This final rule meets the criteria set forth at 43
CFR 46.210(i) for a Departmental Categorical Exclusion in that this
final rule is ``* * * of an administrative, financial, legal,
technical, or procedural nature; or whose environmental effects are too
broad, speculative, or conjectural to lend themselves to meaningful
analysis * * *.'' Further, BOEMRE has analyzed this final rule to
determine if it meets any of the extraordinary circumstances that will
require an environmental assessment or an environmental impact
statement as set forth in 43 CFR 46.215 and concluded that this final
rule, being purely procedural, does not meet any of the criteria for
extraordinary circumstances.
Data Quality Act
In developing this final rule, BOEMRE did not conduct or use a
study, experiment, or survey requiring peer review under the Data
Quality Act (Pub. L. 106-554, app. C Sec. 515, 114 Stat. 2763, 2763A-
153-154).
Effects on the Energy Supply (E.O. 13211)
This final rule is not a significant energy action under the
definition in E.O. 13211. A Statement of Energy Effects is not
required.
List of Subjects in 30 CFR Part 285
Continental shelf, Environmental protection, Public lands.
Dated: April 28, 2011.
Ned Farquhar,
Acting Assistant Secretary for Land and Minerals Management.
For the reasons stated in the preamble, the Bureau of Ocean Energy
Management, Regulation and Enforcement (BOEMRE) amends 30 CFR part 285
as follows:
PART 285--RENEWABLE ENERGY ALTERNATE USES OF EXISTING FACILITIES ON
THE OUTER CONTINENTAL SHELF
0
1. The authority citation for part 285 continues to read as follows:
Authority: 43 U.S.C. 1331 et seq., 43 U.S.C. 1337.
0
2. Amend Sec. 285.231 by revising the section heading and paragraph
(d)(1) to read as follows:
Sec. 285.231 How will BOEMRE process my unsolicited request for a
noncompetitive lease?
* * * * *
(d) * * *
(1) We will publish in the Federal Register a notice that there is
no competitive interest; and
* * * * *
0
3. Amend Sec. 285.232 by revising paragraph (c) to read as follows:
Sec. 285.232 May I acquire a lease noncompetitively after responding
to a Request for Interest or Call for Information and Nominations under
Sec. 285.213?
* * * * *
(c) After receiving the acquisition fee, BOEMRE will follow the
process outlined in Sec. 285.231(d) through (i).
[FR Doc. 2011-11908 Filed 5-13-11; 8:45 am]
BILLING CODE 4310-MR-P