[Federal Register Volume 76, Number 32 (Wednesday, February 16, 2011)]
[Proposed Rules]
[Pages 8962-8965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3515]
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DEPARTMENT OF THE INTERIOR
Bureau of Ocean Energy Management, Regulation and Enforcement
30 CFR Part 285
[Docket ID: BOEM-2010-0045]
RIN 1010-AD71
Renewable Energy Alternate Uses of Existing Facilities on the
Outer Continental Shelf--Acquire a Lease Noncompetitively
AGENCY: Bureau of Ocean Energy Management, Regulation and Enforcement
(BOEMRE), Interior.
ACTION: Proposed rule.
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SUMMARY: BOEMRE proposes to revise the regulations that pertain to
noncompetitive acquisition of an Outer Continental Shelf (OCS)
renewable energy lease. We are taking this action because the current
regulations governing the noncompetitive acquisition of an OCS
renewable energy lease initiated by BOEMRE and a request for a
noncompetitive OCS renewable energy lease initiated by an unsolicited
request are inconsistent. This rulemaking will make the two processes
consistent with each other by eliminating a duplicative and unnecessary
step in the noncompetitive leasing process, while continuing to provide
for adequate public notice and review of leasing proposals as required
by law.
DATES: Comment Due Date: Submit comments on the proposed rule by March
18, 2011.
ADDRESSES: You may submit comments on the rulemaking by any of the
following methods. Please use the Regulation Identifier Number (RIN)
1010-AD71 as an identifier in your message. See also Public
Availability of Comments under Procedural Matters.
Federal eRulemaking Portal: http://www.regulations.gov. In
the entry titled ``Enter Keyword or ID,'' enter BOEM-2010-0045, then
click search. Follow the instructions to submit public comments and
view supporting and related materials available for this rulemaking.
BOEMRE will post all comments.
Mail or hand-carry comments to the Department of the
Interior; Bureau of Ocean Energy Management, Regulation and
Enforcement; Attention: Regulations and Standards Branch (RSB); 381
Elden Street, MS-4024, Herndon, Virginia 20170-4817. Please reference
``Acquire a Lease Noncompetitively, 1010-AD71'' in your comments and
include your name and address.
FOR FURTHER INFORMATION CONTACT: Timothy Redding at (703) 787-1219.
SUPPLEMENTARY INFORMATION:
Background
BOEMRE originally published the proposed revision for comment as a
direct final rule in the Federal Register on November 26, 2010. That
document stated that if BOEMRE received a significant adverse comment
concerning the rulemaking, it would withdraw the direct final rule and
publish a notice of proposed rulemaking. BOEMRE did receive significant
adverse comment on the direct final rulemaking and on January 25, 2011,
published in the Federal Register a notice of withdrawal and statement
of intent to reinitiate rulemaking by publishing this proposed rule.
The regulations at 30 CFR part 285 govern renewable energy leasing
and alternate uses of existing facilities on the OCS. This proposed
rule would revise the regulations at Sec. Sec. 285.231 and 285.232.
The regulations at Sec. 285.231 address unsolicited requests for
noncompetitive leases. The regulations at Sec. 285.232 address the
acquisition of noncompetitive leases in response to a Request for
Interest (RFI) or a Call for Information and Nomination (Call). The
process for awarding leases noncompetitively outlined in these two
sections is currently inconsistent.
As currently written, Sec. 285.231 allows the award of a
noncompetitive lease after BOEMRE receives an unsolicited request for a
noncompetitive lease, provided that BOEMRE determines that there is no
competitive interest after publishing a single notice of a request for
interest relating to the unsolicited request for a noncompetitive
lease.
As currently written, Sec. 285.232 provides that, after BOEMRE
publishes an RFI or Call, if a respondent indicates interest in leasing
an area for which no other party has indicated interest, BOEMRE may
offer a lease through a noncompetitive process. However, the
regulations require the publication of a second RFI notice to confirm
the absence of competition before proceeding with the noncompetitive
process. We believe that this requirement for a second notice is
redundant and is at odds with the noncompetitive process prescribed for
cases in which a party submits an unsolicited request for an OCS
renewable energy lease, where BOEMRE is required to publish only a
single notice. Eliminating this discrepancy and requiring only one RFI
notice would make BOEMRE's leasing processes more streamlined and
efficient while maintaining BOEMRE's obligation to
[[Page 8963]]
notify the public of areas that may be leased, solicit public input
regarding those areas, and determine whether competitive interest
exists in acquiring such leases in the proposed area(s).
Accordingly, BOEMRE proposes to revise Sec. 285.231(d)(1) to state
that we will publish in the Federal Register a notice that there is no
competitive interest. We would also revise Sec. 285.232(c) to refer
back to Sec. 285.231(d) through (i) instead of referring back to Sec.
285.231(b) through (i).
Comments on the Direct Final Rulemaking
BOEMRE received a total of eight comments in response to the direct
final rulemaking published on November 26, 2010. All of the comments
objected to the rulemaking, characterizing its effect as improper
rushing by BOEMRE to allow offshore renewable energy leasing and
development. Four comments took issue specifically with the direct
final rulemaking process itself and called for a proposed rule and
comment procedure. Five of the comments stated that the current wording
of 30 CFR 285.231 and 232 should be retained. A majority of the
commenters appeared to misunderstand the effect of the proposed
revision, evidencing a belief that it would remove the requirement for
public notice to determine competitive interest altogether. However,
one comment, which appeared to accurately understand the effect of the
rulemaking, recommended retention of the current wording, stating that,
``[t]he current regulations provide an added level of protection by
ensuring that the public has adequate notice of any requests for
interest relating to proposals to construct offshore alternative energy
projects, giving competitive interests the chance to participate and
submit alternative bids and the public an opportunity to express
concerns and make comments.''
BOEMRE has determined that it received significant adverse comment
on the direct final rule, which was defined in the November 26 notice
as ``a comment where the commenter explains why the rule would be
inappropriate, including challenges to the rule's underlying premise or
approach or would be ineffective and unacceptable without a change.''
It is therefore publishing this proposed rule for public comment.
However, BOEMRE believes that the intent and effect of the proposed
regulatory revision were largely misunderstood by most of the
commenters. This proposed rule would maintain adequate public notice of
leasing proposals and would be sufficient for the purpose of
determining whether competitive interest existed, while eliminating
unnecessary, inconsistent, and inefficient repetition in the renewable
energy leasing process when it is initiated by BOEMRE. BOEMRE will
consider the eight comments already received as they relate to this
proposed rulemaking unless they are withdrawn by the commenters, and
those commenters are welcome to submit additional comments.
Procedural Matters
Regulatory Planning and Review (Executive Order (E.O.) 12866)
This proposed rule would not be a significant rule as determined by
the Office of Management and Budget (OMB) and is not subject to review
under E.O. 12866.
(1) This proposed rule would not have an annual effect of $100
million or more on the economy. It would not adversely affect in a
material way the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities.
(2) This proposed rule would not create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency.
The proposed rule is intended to eliminate redundancy and inefficiency.
(3) This proposed rule would not alter the budgetary effects of
entitlements, grants, user fees, or loan programs or the rights or
obligations of their recipients.
(4) This proposed rule would not raise novel legal or policy issues
arising out of legal mandates, the President's priorities, or the
principles set forth in E.O. 12866.
Regulatory Flexibility Act
The Department of the Interior certifies that this proposed rule
would not have a significant economic effect on a substantial number of
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.). The Department prepared a regulatory flexibility analysis for 30
CFR part 285, and concluded that the regulations will impact a
substantial number of small entities, but will not have a significant
economic impact on the small entities in comparison to the impacts on
large entities. That analysis was discussed in detail in the Notice of
Proposed Rulemaking for 30 CFR part 285 published in the Federal
Register on July 9, 2008 (73 FR 39376).
The North American Industry Classification System (NAICS) code for
the industries affected by this rule is 221119 (Other Electric Power
Generation). The definition for this code is:
``This U.S. industry comprises establishments primarily engaged
in operating electric power generation facilities (except
hydroelectric, fossil fuel, nuclear). These facilities convert other
forms of energy, such as solar, wind, or tidal power, into
electrical energy. The electric energy produced in these
establishments is provided to electric power transmission systems or
to electric power distribution systems.''
It is possible that this proposed rule could eventually affect
entities that produce hydrogen and fall under NAICS Code 325120
(Industrial Gas Manufacturing). The definition for this code is:
``This industry comprises establishments primarily engaged in
manufacturing industrial organic and inorganic gases in compressed,
liquid, or solid forms.''
Given the original findings of the regulatory flexibility analysis
done for 30 CFR part 285, as well as the minor adjustment to the
renewable energy leasing process that is contemplated, the proposed
rule would not have a significant effect on a substantial number of
small entities.
Your comments are important. The Small Business and Agriculture
Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were
established to receive comments from small businesses about Federal
agency enforcement actions. The Ombudsman will annually evaluate the
enforcement activities and rate each Agency's responsiveness to small
business. If you wish to comment on the actions of BOEMRE, call 1-888-
734-3247. You may comment to the Small Business Administration without
fear of retaliation. Allegations of discrimination/retaliation filed
with the Small Business Administration will be investigated for
appropriate action.
Small Business Regulatory Enforcement Fairness Act
This proposed rule is not a major rule under the Small Business
Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq.). This
proposed rule:
a. Would not have an annual effect on the economy of $100 million
or more.
b. Would not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Would not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
[[Page 8964]]
The requirements would apply indiscriminately to entities intending to
acquire a renewable energy lease on the OCS pursuant to 30 CFR part
285.
Unfunded Mandate Reform Act of 1995
This proposed rule would not impose an unfunded mandate on State,
local, or tribal governments or the private sector of more than $100
million per year. The proposed rule would not have a significant or
unique effect on State, local, or tribal governments or the private
sector. A statement containing the information required by the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et seq.) is not required.
Takings Implication Assessment (E.O. 12630)
Under the criteria in E.O. 12630, this proposed rule does not have
significant takings implications. The proposed rule is not a
governmental action capable of interference with constitutionally
protected property rights. A Takings Implication Assessment is not
required.
Federalism (E.O. 13132)
Under the criteria in E.O. 13132, this proposed rule does not have
federalism implications. This proposed rule would not substantially and
directly affect the relationship between the Federal and State
Governments. To the extent that State and local governments have a role
in OCS activities, this proposed rule would not affect that role. A
Federalism Assessment is not required.
Civil Justice Reform (E.O. 12988)
This proposed rule complies with the requirements of E.O. 12988.
Specifically, this proposed rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Consultation With Indian Tribes (E.O. 13175)
Under the criteria in E.O. 13175, we have evaluated this proposed
rule and determined that it has no substantial effects on federally
recognized Indian tribes.
Paperwork Reduction Act (PRA)
This proposed rulemaking contains no new reporting or recordkeeping
requirements; therefore, an OMB submission under the PRA (44 U.S.C.
3501 et seq.) is not required. The PRA provides that an agency may not
conduct or sponsor a collection of information unless it displays a
currently valid OMB control number. Until OMB approves a collection of
information and assigns a control number, you are not required to
respond. The revisions in this rulemaking refer to, but would not
change, information collection requirements in 30 CFR part 285. The OMB
approved the referenced information collection requirements under OMB
Control Number 1010-0176 (expiration 3/31/2013).
National Environmental Policy Act of 1969
This proposed rule does not constitute a major Federal action
significantly affecting the quality of the human environment. BOEMRE
has analyzed this proposed rule under the criteria of the National
Environmental Policy Act (NEPA) and the Department's regulations
implementing NEPA. This proposed rule meets the criteria set forth at
43 CFR 46.210(i) for a Departmental Categorical Exclusion in that this
proposed rule is ``* * * of an administrative, financial, legal,
technical, or procedural nature; or whose environmental effects are too
broad, speculative, or conjectural to lend themselves to meaningful
analysis * * *'' Further, BOEMRE has analyzed this proposed rule to
determine if it meets any of the extraordinary circumstances that would
require an environmental assessment or an environmental impact
statement as set forth in 43 CFR 46.215 and concluded that this
proposed rule, being purely procedural, does not meet any of the
criteria for extraordinary circumstances.
Data Quality Act
In developing this proposed rule, BOEMRE did not conduct or use a
study, experiment, or survey requiring peer review under the Data
Quality Act (Pub. L. 106-554, app. C Sec. 515, 114 Stat. 2763, 2763A-
153-154).
Effects on the Energy Supply (E.O. 13211)
This proposed rule is not a significant energy action under the
definition in E.O. 13211. A Statement of Energy Effects is not
required.
Clarity of This Proposed Regulation
BOEMRE is required by E.O. 12866, E.O. 12988, and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the proposed rule, your comments should be as
specific as possible. For example, you should tell us the numbers of
the sections or paragraphs that you find unclear, which sections or
sentences are too long, the sections where you feel lists or tables
would be useful, etc.
Public Availability of Comments
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
List of Subjects in 30 CFR Part 285
Continental shelf, Environmental protection, Public lands.
Dated: February 9, 2011.
Wilma A. Lewis,
Assistant Secretary for Land and Minerals Management.
For the reasons stated in the preamble, the Bureau of Ocean Energy
Management, Regulation and Enforcement (BOEMRE) proposes to amend 30
CFR part 285 as follows:
PART 285--RENEWABLE ENERGY AND ALTERNATE USES OF EXISTING
FACILITIES ON THE OUTER CONTINENTAL SHELF
1. The authority citation for part 285 continues to read as
follows:
Authority: 43 U.S.C. 1331 et seq., 43 U.S.C. 1337.
2. Amend Sec. 285.231 by revising paragraph (d)(1) to read as
follows:
Sec. 285.231 How will BOEMRE process my unsolicited request for a
noncompetitive lease?
* * * * *
(d) * * *
(1) We will publish in the Federal Register a notice that there is
no competitive interest; and
* * * * *
3. Amend Sec. 285.232 by revising paragraph (c) to read as
follows:
[[Page 8965]]
Sec. 285.232 May I acquire a lease noncompetitively after responding
to a Request for Interest or Call for Information and Nominations under
Sec. 285.213?
* * * * *
(c) After receiving the acquisition fee, BOEMRE will follow the
process outlined in Sec. 285.231(d) through (i).
[FR Doc. 2011-3515 Filed 2-15-11; 8:45 am]
BILLING CODE 4310-MR-P