Renewable Energy and Alternate Uses of Existing Facilities on the Outer Continental Shelf, 19638-19871 [E9-9462]

Agencies

• DEPARTMENT OF THE INTERIOR
• Minerals Management Service

[Federal Register Volume 74, Number 81 (Wednesday, April 29, 2009)]
[Rules and Regulations]
[Pages 19638-19871]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-9462]



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Part II





Department of the Interior





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Minerals Management Service



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30 CFR Parts 250, 285, and 290



Renewable Energy and Alternate Uses of Existing Facilities on the Outer 
Continental Shelf; Final Rule

Federal Register / Vol. 74, No. 81 / Wednesday, April 29, 2009 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Minerals Management Service

30 CFR Parts 250, 285, and 290

[Docket ID: MMS-2008-OMM-0012]
RIN 1010-AD30


Renewable Energy and Alternate Uses of Existing Facilities on the 
Outer Continental Shelf

AGENCY: Minerals Management Service (MMS), Interior.

ACTION: Final rule; Notice of Availability of the Final Environmental 
Assessment.

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SUMMARY: The MMS is publishing final regulations to establish a program 
to grant leases, easements, and rights-of-way (ROW) for renewable 
energy project activities on the Outer Continental Shelf (OCS), as well 
as certain previously unauthorized activities that involve the 
alternate use of existing facilities located on the OCS; and to 
establish the methods for sharing revenues generated by this program 
with nearby coastal States. These regulations will also ensure the 
orderly, safe, and environmentally responsible development of renewable 
energy sources on the OCS.
    The MMS prepared a Final Environmental Assessment (EA) analyzing 
this rule. The EA incorporates by reference the Programmatic 
Environmental Impact Statement Programmatic Environmental Impact 
Statement for Alternative Energy Development and Production and 
Alternate Use of Facilities on the Outer Continental Shelf, Final 
Environmental Impact Statement, October 2007. The EA was prepared to 
assess any impacts of this rule. The Final EA is available on the MMS 
Web site at: https://www.mms.gov/offshore/AlternativeEnergy/RegulatoryInformation.htm.

DATES: Effective Date: This final rule is effective on June 29, 2009. 
The incorporation by reference of the publication listed in the 
regulation is approved by the Director of the Federal Register as of 
June 29, 2009.

FOR FURTHER INFORMATION CONTACT: 
    Final rule: Maureen Bornholdt, Program Manager, Office of 
Alternative Energy Programs, at (703) 787-1300 or 
maureen.bornholdt@mms.gov; or Amy C. White, Regulations and Standards 
Branch, at (703) 787-1665 or amy.white@mms.gov.
    Environmental Assessment: James F. Bennett, Chief, Branch of 
Environmental Assessment, at (703) 787-1660 or James.F.Bennett@mms.gov.

SUPPLEMENTARY INFORMATION: The MMS developed this program and final 
regulations under the authority granted to the Secretary of the 
Interior (Secretary) by the Energy Policy Act of 2005, which amended 
the Outer Continental Shelf Lands Act (OCS Lands Act). Under this new 
authority, the Secretary maintains discretionary authority to issue 
leases, easements, or ROWs on the OCS for previously unauthorized 
activities that: (i) Produce or support production, transportation, or 
transmission of energy from sources other than oil and gas; or (ii) 
use, for energy-related or other authorized marine-related purposes, 
facilities currently or previously used for activities authorized under 
the OCS Lands Act.

Background

Mandate of Energy Policy Act of 2005 (EPAct)

    The EPAct amended the OCS Lands Act to authorize the Secretary to 
issue leases, easements, or ROWs on the OCS for activities that:
    (i) Support exploration, development, production, or storage of oil 
or natural gas, except that a lease, easement, or right-of-way shall 
not be granted in an area in which oil and gas preleasing, leasing, and 
related activities are prohibited by a moratorium;
    (ii) Support transportation of oil or natural gas, excluding 
shipping activities;
    (iii) Produce or support production, transportation, or 
transmission of energy from sources other than oil and gas; or
    (iv) Use, for energy-related or other authorized marine-related 
purposes, facilities currently or previously used for activities 
authorized under the OCS Lands Act.
    This new authority does not apply to activities that are otherwise 
authorized by law, including those covered by the OCS Lands Act, the 
EPAct, the Deepwater Port Act of 1974, and the Ocean Thermal Energy 
Conversion Act of 1980. On March 20, 2006, the Secretary of the 
Interior delegated to the MMS the new authority that was conferred by 
the EPAct. Under this authority, MMS will regulate the generation of 
electricity or other forms of energy from sources other than oil and 
natural gas on OCS facilities and the transmission on project easements 
and ROWs issued under this part. The MMS will not regulate sales of 
electricity or other forms of energy. The MMS will not regulate the 
transmission of electricity or other forms of energy on State lands.
    In addition, the EPAct requires the Secretary to share with nearby 
coastal States a portion of the revenues received by the Federal 
Government from authorized renewable energy and alternate use projects 
on certain areas of the OCS. This final rule implements this mandate 
and describes the methods MMS will use for identifying what projects 
are covered by this requirement, determining which States are eligible 
to receive shares of the revenues, and--if two or more States are 
eligible to receive revenues from the same project--allocating the 
appropriate share to each eligible State.
    The EPAct included a requirement that the Secretary develop any 
necessary regulations to implement the new authority. This final rule 
applies to the activities described in (iii) and (iv) previously (i.e., 
those relating to production, transportation, or transmission of energy 
from sources other than oil and gas, and to the use of existing OCS 
facilities for energy-related or other authorized marine-related 
purposes). Regulations for activities described in (i) and (ii) 
previously (i.e., those relating to oil and gas) will be promulgated 
separately in appropriate parts of the existing MMS oil and gas 
regulations.
    While the MMS is the lead agency for authorizing OCS renewable 
energy and alternate use activities, we recognize that other Federal 
agencies have regulatory responsibility in such activities. The new 
authority does not expressly supersede or modify existing Federal laws, 
and all activities must comply fully with such laws. For instance, FERC 
has exclusive jurisdiction to issue licenses for hydrokinetic projects 
under Part I of the Federal Power Act and issue exemptions from 
licensing under Section 405 and 408 of the Public Utility Regulatory 
Policies Act of 1978 for the construction and operation of hydrokinetic 
projects on the OCS. However, no FERC license or exemption for a 
hydrokinetic project on the OCS shall be issued before MMS issues a 
lease, easement, or right-of-way. The MMS possesses the exclusive 
authority to issue leases, easements, and rights-of-way for renewable 
energy projects on the OCS.
    In addition to providing the authority to issue leases, easements, 
and ROWs, the EPAct included a requirement that any activity permitted 
under this authority be ``carried out in a manner that provides for--
    (A) Safety;
    (B) Protection of the environment;
    (C) Prevention of waste;
    (D) Conservation of the natural resources of the outer Continental 
Shelf;

[[Page 19639]]

    (E) Coordination with relevant Federal agencies;
    (F) Protection of national security interests of the United States;
    (G) Protection of correlative rights in the outer Continental 
Shelf;
    (H) A fair return to the United States for any lease, easement, or 
right-of-way under this subsection;
    (I) Prevention of interference with reasonable uses (as determined 
by the Secretary) of the exclusive economic zone, the high seas, and 
the territorial seas;
    (J) Consideration of--
    (i) The location of, and any schedule relating to, a lease, 
easement, or right-of-way for an area of the outer Continental Shelf; 
and
    (ii) Any other use of the sea or seabed, including use for a 
fishery, a sealane, a potential site of a deepwater port, or 
navigation;
    (K) Public notice and comment on any proposal submitted for a 
lease, easement, or right-of-way under this subsection; and
    (L) Oversight, inspection, research, monitoring, and enforcement 
relating to a lease, easement, or right-of-way under this subsection.''
    The MMS addresses these items, as appropriate, in this rulemaking.

MMS and Federal Energy Regulatory Commission (FERC) MOU

    Until March 2009, regulatory uncertainty existed regarding which 
Federal agencies had authority to regulate wave and current energy 
development on the outer Continental Shelf (OCS). Both MMS and the 
Federal Energy Regulatory Commission (FERC) claimed this authority 
based on differing interpretations of Part I of the Federal Power Act 
(FPA) and section 8(p) of OCSLA, as amended by EPAct. However, on March 
17, 2009, the Secretary of the Interior and the Acting Chairman of the 
Federal Energy Regulatory Commission issued a joint statement on the 
development of renewable energy resources on the OCS. In this joint 
statement, the Secretary and the Acting Commissioner requested that MMS 
and FERC staff prepare a Memorandum of Understanding (MOU) to describe 
the process by which authorizations related to renewable energy 
resources in offshore waters will be developed.
    The MMS and FERC finalized this MOU on April 9, 2009. This 
agreement clarifies jurisdictional understandings regarding renewable 
energy projects on the OCS in order to develop a cohesive, streamlined 
process that would help accelerate the development of wind, solar, and 
hydrokinetic energy projects. Specifically, the MOU recognizes that (1) 
MMS has exclusive jurisdiction with regard to the production, 
transportation, or transmission of energy from non-hydrokinetic 
alternative energy projects on the OCS, including renewable energy 
sources such as wind and solar; (2) MMS has exclusive jurisdiction to 
issue leases, easements, and rights-of-way regarding OCS lands for 
hydrokinetic projects; and (3) the Commission has exclusive 
jurisdiction to issue licenses and exemptions for hydrokinetic projects 
located on the OCS.
    Under this new agreement, those entities interested in operating a 
hydrokinetic project on the OCS must first obtain a lease from MMS. The 
MMS will issue a public notice to determine whether competitive 
interest exists in the area, and will proceed with either the 
competitive or noncompetitive lease issuance process depending on 
responses received to this public notice. The MMS will conduct the NEPA 
analysis necessary for the lease issuance and any site assessment 
activities that will occur on the lease. After an applicant acquires a 
lease from MMS, FERC may issue a license or exemption for the 
hydrokinetic project, and conduct any necessary NEPA analysis. After a 
license is issued, construction and operations of the project may begin 
as per the terms of the license. To facilitate efficient processing of 
the lease and license applications, it may be helpful for potential 
lessees to apprise both MMS and FERC of their interest in hydrokinetic 
development at the start of the process.
    Further, the MOU states that MMS and FERC will work together to the 
extent practicable to develop policies and regulations with respect to 
OCS hydrokinetic projects, and coordinate to ensure that hydrokinetic 
projects meet the public interest, including the adequate protection, 
mitigation, and enhancement of fish, wildlife, and marine resources and 
other beneficial public uses. The MOU ensures that the interests of 
both agencies are adequately represented and that the process of 
developing renewable energy on the OCS happens efficiently, in an 
environmentally responsible manner, and with appropriate benefit to the 
people of the United States.
    Importantly, the agreement addresses the issue of potential site-
banking by developers on the OCS by eliminating redundant regulatory 
processes for acquiring use of OCS lands. In addition, by eliminating 
dual regulatory processes, the agreement addresses the potential for 
granting conflicting awards of OCS sites to developers by the two 
agencies. Specifically, FERC has agreed not to issue preliminary 
permits for hydrokinetic activities on the OCS, and MMS has agreed that 
FERC will have the primary responsibility to issue licenses for these 
activities. The Federal Government has effectively eliminated the 
opportunity for abuse by entities seeking to reserve, block, or acquire 
for speculative purposes large portions of the OCS. These concerns were 
raised by many commenters on the REAU rulemaking. The DOI/FERC MOU 
creates a unified, coherent process for the authorization of 
hydrokinetic activities on the OCS, ensuring that U.S. resources on the 
OCS will not be subject to a ``land rush,'' and will be developed in 
the most efficient manner possible.

Regulatory Process

    On December 30, 2005, the MMS issued an Advance Notice of Proposed 
Rulemaking (ANPR) (70 FR 77345) requesting comments on the program 
requirements.
    The ANPR requested public comments on five major program areas:
    (1) Access to OCS lands and resources;
    (2) Environmental information, management, and compliance;
    (3) Operational activities;
    (4) Payments and revenues; and
    (5) Coordination and consultation.
    The MMS provided a summary of the comments received on the ANPR in 
the Notice of Proposed Rulemaking (NPR) (73 FR 39376) published on July 
9, 2008. The NPR is available on the Regulations.gov Web site.

Programmatic Environmental Impact Statement (PEIS) Summary

    The MMS prepared a final PEIS in support of the establishment of a 
program for authorizing renewable energy and alternate use activities 
on the OCS. The final PEIS examines the potential environmental effects 
of the program on the OCS and identifies policies and best management 
practices that may be adopted for the program. The PEIS examined three 
alternatives, as well as the no action alternative. The three 
alternatives were: (1) The proposed action which would establish the 
program; (2) a case-by-case alternative that would evaluate each 
project individually without the benefit of a comprehensive program; 
and (3) the preferred alternative, which consisted of a combination of 
the first two alternatives, thus allowing MMS to review projects during 
the interim while the program and regulations are being established.
    Given the rapidly evolving nature of this nascent industry, the MMS 
cannot reasonably anticipate and assess the

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potential environmental impacts of all of the various technologies and 
potential OCS locations where these renewable energy and alternate use 
projects could someday be proposed. Accordingly, this PEIS is focused 
on renewable energy technologies and areas on the OCS that industry has 
expressed a potential interest in and ability to develop or evaluate 
from 2007 to 2014. The PEIS proposed policies and best management 
practices based on the analyses in the PEIS. As the program evolves and 
more is learned, the mitigation measures may be modified or new 
measures developed. Each project developed under this new program will 
be subject to environmental reviews under the National Environmental 
Policy Act (NEPA), and each project may have additional project-
specific mitigation measures.
    A Record of Decision (ROD) was published on January 10, 2008. The 
preferred alternative was selected as well as interim policies and best 
management practices that were recommended in the PEIS. The PEIS and 
ROD are available at: https://ocsenergy.anl.gov/.

Environmental Assessment

    The MMS prepared a Final EA analyzing this rule. The EA 
incorporates by reference the PEIS, Programmatic Environmental Impact 
Statement for Alternative Energy Development and Production and 
Alternate Use of Facilities on the Outer Continental Shelf, Final 
Environmental Impact Statement, October 2007. This EA was prepared to 
assess any impacts of this rule. The Final EA is available on the MMS 
Web site at: https://www.mms.gov/offshore/AlternativeEnergy/RegulatoryInformation.htm.

Notice of Proposed Rulemaking

Summary of Comments

    The MMS published a NPR (73 FR 39376) on July 9, 2008. The proposed 
rule was accompanied by a 60-day public comment period that ended 
September 8, 2008.
    In response to the request for comments, MMS received 280 letters 
from a range of entities, including, but not limited to, Non-
Governmental Organizations, State and local governments, industry, and 
the general public. A list of commenters is included at the end of the 
summary. The following table illustrates the segmentation of comment 
letter submissions received by organization type: 
[GRAPHIC] [TIFF OMITTED] TR29AP09.000

    No single issue dominated the comments, which were divergent and 
wide-ranging. In general, comments were supportive of renewable energy 
developments on the OCS and reuse of existing OCS facilities. 
Commenters advised MMS to provide as much certainty as possible in the 
final rule to support the burgeoning offshore renewable energy 
industry, while also providing flexibility to allow industry to meet 
the necessary requirements. The MMS was also urged to advocate for 
early and consistent stakeholder involvement in both the program and 
with individual project permitting.
    The most common topics addressed by commenters included: 
Aquaculture, State and local consultation, bonding, confidentiality, 
alternate-use liability transference, jurisdiction, revenue sharing, 
and environmental review processes. These topics and others are 
addressed further in the sections that follow.
Access to OCS Lands and Procedures for Leasing
    With regard to timeframes for activities required by the proposed 
rule, several commenters requested this rule provide clear and defined 
timelines for MMS's responsibilities. Some suggested that timelines 
should be set for the issuance of the public notice to determine 
developer interest. Others suggested that a timeline be set for the 
comment evaluation period following the deadline for public comments in 
response to a public notice. Some suggested that a timeline be set for 
the determination of competitive interest. Other commenters proposed a 
timeline be set for MMS action on lease-suspension requests.
    With regard to jurisdiction, one commenter raised the question 
about whether MMS has jurisdiction over the cables associated with a 
renewable energy project even if these cables were used for a 
nonrenewable energy project at the end of the original lease term.
    Some commenters requested that due-diligence requirements be 
established to ensure that the applicant is financially and technically 
sound when being considered as a potential leaseholder.
    Some comments suggested that additional clarification is needed on 
a number of elements in the rule, including on what constitutes 
competitive interest, the ROW and right-of-use and easement (RUE) grant 
process, and activity cessation and suspension orders and the 
activities that these orders affect.
    A large number of comments related to the process for renewing 
leases. Some of these comments requested that the renewal process begin 
earlier, and others asked that while a lease renewal request is 
pending, the rule make it clear that the lease term will be 
automatically extended until MMS makes a decision.

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    Some commenters expressed concern with the concept of lease area 
contractions, suggesting that MMS could contract leases capriciously. 
Other commenters suggested MMS should reconsider allowing for the 
scaling of projects to ensure fairness and ease of market entry. The 
MMS should also consider additional strategies beyond diligence 
requirements to ensure that individual developers could not tie up 
large areas of the OCS, thereby prohibiting other development interests 
and, potentially, other uses.
    Many commenters suggested that MMS should permit lessees of limited 
leases to have priority consideration when considering a commercial 
lease application. For instance, if a lessee is already operating on a 
limited lease in a given area, and that same area is opened up for a 
commercial lease sale, that lessee should be given priority over other 
competitors for that lease area.
    With regard to the issuance of limited leases for the purpose of 
research, some commenters supported the idea of having Department of 
Energy supported research access rights expanded to include State 
governments and academic institutions.
    Several comments urged MMS to consider and establish a multi-factor 
evaluation process when considering a project proposal in a competitive 
lease sale.
Environmental Information, Management, and Compliance Programs
    Several commenters suggested that the environmental review process 
proposed by MMS would be overly burdensome and redundant. Some 
commenters suggested that the NEPA process proposed by MMS goes far 
beyond what NEPA requires and what other agencies require to implement 
NEPA in order to demonstrate the extent of environmental impact. Some 
commenters suggested that the NEPA process is far too cumbersome as set 
out in the proposed rule. Having the Site Assessment Plan (SAP), 
Construction and Operations Plan (COP), and lease sale Environmental 
Impact Statement (EIS) undergo NEPA is burdensome and unnecessary.
    With regard to the environmental review process, several comments 
pertained to the division of cost burden, requesting clarification, or 
changes to the designation of responsible parties with regard to 
payment. Some commenters suggested that MMS should allow companies the 
option of developing the required environmental documents instead of 
having MMS staff and its contractors develop them for projects.
    With regard to the Coastal Zone Management Act (CZMA) review 
process, several commenters requested clarification on how the process 
would work. Some commenters suggested that it is unclear in the 
proposed rule regarding exactly what is required under a noncompetitive 
lease sale versus a competitive lease sale. Other commenters were 
unclear on what parts of CZMA applied to these types of lease sales.
    Many commenters expressed concern with minimizing the environmental 
impacts of leases, easements, and ROWs. With regard to cumulative 
impacts and monitoring, several commenters proposed that projects be 
closely monitored for their overall impacts on the environment, both 
beneficial and adverse. Some commenters suggested that the proposed 
rule did not adequately address the need for consideration of potential 
impacts on commercial fishing. Other commenters advocated that 
monitoring activities should not only encompass the proposed project 
area, but also those areas directly adjacent to projects. Some 
commenters suggested that the guidelines for monitoring should clarify 
that States reserve the right to impose additional requirements as 
needed. The MMS also received comments suggesting that cumulative 
effects should be required as part of an applicant's SAP, COP, and 
initial project proposal. The cumulative effects should also be 
considered as part of the lease-sale evaluation process.
    With regard to adaptive management, several commenters proposed 
that the requirements and process for adaptive management are unclear 
in the proposed rule and need to be clarified. Some suggested that the 
lease instrument should be site specific and clearly specify the scope 
of the adaptive management activities MMS might require. Some comments 
pointed to the approach employed by the U.S. Fish and Wildlife Service 
for specifying adaptive management, where the terms and obligations are 
negotiated upfront. Some suggest that adaptive management should be 
included as a standard component of the SAP, General Activities Plan 
(GAP), and COP.
    Several commenters advocate that MMS apply categorical exclusions 
for certain data gathering activities. Some comments suggest that 
categorical exclusions could apply to most, if not all, resource 
evaluation activities, the installation of monitoring devices, and 
activities conducted prior to the approval of plans while on a lease. 
Some comments point to the policy currently employed by the U.S. Bureau 
of Land Management (BLM) for granting these exclusions.
Facility Design, Fabrication, and Installation
    With regard to facility design and engineering, the majority of 
comments pertained to the proposed requirement that the lessee use a 
Certified Verification Agent (CVA). Many commenters suggested that the 
required use of a CVA is redundant, expensive, and not effective where 
such design, fabrication, installation, repairs, and modifications are 
done under the direction of a licensed engineer. Some commenters 
pointed out that because construction of offshore wind facilities 
consist of repeated installation of numerous, nearly identical units, 
requiring the CVA to verify, witness, survey, or check most, if not 
all, of a wind farm installation is burdensome and unnecessary.
    With regard to the engineering and design standards by which 
offshore renewable energy facilities are aligned, many commenters 
suggested it was unclear in the proposed rule to what standard(s) the 
CVA would compare individual projects, as there is no governing body 
approving such designs, nor does MMS state specific standards in the 
rule. Some commenters urged MMS to adopt internationally accepted 
standards wherever possible. Other commenters suggested that MMS 
consider a phased approach in the facility design, fabrication, and 
installation requirements, thereby proposing that MMS rely on existing 
standards while proceeding with the analysis of all standards to 
determine what modifications might be justified in a second phase of 
the program. In addition, because there are no set standards or 
governing body, some commenters proposed that MMS provide training to 
prospective CVAs to meet the safety requirements that MMS will impose.
Regulation of Operational and Decommissioning Activities
    With regard to site-assessment activities, some commenters 
expressed a desire to have the ability to conduct site-assessment 
activities before a lease has been issued. Other commenters suggested 
that the SAP and COP be combined into a single plan, while others 
recommended that MMS create a categorical exclusion for site-assessment 
activities.
    With regard to information requirements, many commenters requested 
additional clarification regarding various information requirements 
under the lease, including

[[Page 19642]]

those required during the application phase, within the plans, during 
the environmental reviews, and during the technical evaluation of a 
proposed project.
    A large number of comments addressed the topic of the proposed 
notification requirements. Some commenters suggested that the 3-day 
notification requirement, as explained in subpart H, should be restated 
to address equipment or failures that pose significant risk to the 
environment, personnel, or property. Some commenters suggested that the 
notification requirement may not be appropriate for routine repair 
work, and would be better suited to emergency repairs only or those 
that would require environmental documentation. As stated in the 
proposed rule, the notification requirements are unclear regarding what 
activities would require notification; because there are a range of 
activities that could take place, such as changing light bulbs, this 
provision needs to be better defined.
    Several comments addressed the topic of inspections. Some 
commenters pointed out that renewable energy facilities, like wind 
farms, will be unmanned and, as such, should not be subject to the same 
inspection requirements that the oil and gas industry are subject to. 
Certain commenters suggested that offshore wind turbines be classified 
as unmanned for safety purposes, as these facilities are unmanned 
during normal operations. Unscheduled inspections to the actual wind 
turbines or energy generating facilities would be better served with 
visits to the 24-hour shoreside monitoring station, where real-time 
information on the condition and operation of the facility would be 
available. Some commenters advocated unscheduled inspections should be 
coordinated with the developer to minimize possible safety risks to the 
inspector.
    A large number of comments pertained to the decommissioning 
obligations set out in the proposed rule. Some suggested that allowing 
structures to remain in place at the end of a lease makes more sense 
than removal, both from a financial perspective and from an 
environmental perspective. Facility components, such as a turbine 
foundation, scour protection equipment, and cabling could cause greater 
harm to the surrounding ecology during and after removal than if left 
in place. Some commenters suggested that these structures could benefit 
the local ecology by continuing to serve as artificial reefs. Some 
comments requested that MMS require CZMA review as part of the 
decommissioning application. Others advocated having decommissioning 
requirements be determined on a case-by-case basis in the COP, by 
considering site-specific characteristics. On the side of those that 
support removal of all structures, some commenters suggested that the 
final rule should include a requirement that the development site be 
returned to the ecological baseline that existed prior to the 
installation of the energy project. Other commenters suggested that the 
requirements incorporate a presumption that all facilities, cables, and 
other obstructions be removed, as submarine cables and other components 
can pose a long-term obstruction for much of the fishing gear used on 
the OCS.
    Some comments suggested that the specifics of the decommissioning 
requirements should be modified. Some suggested that the removal of 
structures to the seabed depth specified in the rule is unnecessary. 
Some pointed to requirements employed in Europe, where the common 
removal depth for a wind turbine foundation is no more than 2 meters or 
6 feet.
Payments, Royalties, Fees, and Bonds
    The majority of comments regarding payments and financial assurance 
requirements urged MMS to expand the range of financial assurance 
options available to the lessee, including allowing the use of a third-
party guaranty, audited financial statements, power purchase or other 
sale agreements, insurance, or other alternatives approved by MMS.
    Another point raised in a large volume of comments addressed the 
topic of decommissioning costs. Some commenters suggested MMS should 
separate financial assurance for decommissioning costs from financial 
assurance for other regulatory obligations, while others suggested that 
the rule be crafted in a way that ensured the final bonding costs will 
remain within reason and are reviewed carefully to cover only the 
necessary costs. A number of commenters suggested MMS should revise the 
provisions to provide more cost-effective protection against defaults 
on decommissioning obligations. Some commenters shared concern 
regarding MMS's ability to use bonding for cleanup and recovery 
activities once a lease term has ended. Some commenters suggested the 
decommissioning obligation under a limited lease, with a meteorological 
tower cited as an example, should not accrue--at a minimum--until after 
the development lease is awarded and MMS has approved the plan.
    At least one commenter mentioned the uncertainty in the 
requirements and in the process of granting and overseeing ROWs and 
RUEs will impact the feasibility for the developer to obtain financing.
    With regard to operating fees, many commenters recommended that 
operating fees under a commercial lease be deferred until the 
leaseholder is either generating energy or has begun construction on 
the lease. One suggestion was made to have the operating fees deferred 
until the CVA approves the COP.
    With regard to bidding, some commenters recommended MMS establish 
minimum bids and allow for the rejection of high bids in certain 
circumstances.
    Some commenters suggested the leasing fees, royalties, and rent in 
the proposed rule were set too low in light of the value of existing 
fisheries that could be displaced by renewable energy projects.
Coordination and Consultation
    Many commenters urged early and consistent consultation and 
coordination with relevant State and Federal agencies. A few commenters 
suggested the establishment of standing inter-agency advisory and 
planning committees to allow for continuous dialogue with multiple 
stakeholders during the lease issuance process. Some commenters 
requested they be specifically mentioned as a consulting entity in the 
rule.
    With regard to State competitions for offshore development, some 
commenters requested MMS recognize the results of State competitions 
and grants for renewable energy development offshore their States when 
considering potential lessees in Federal waters.
    With regard to consultation during specific stages in the lease 
issuance process, some commenters suggested the rule require applicants 
consult with affected State and local governments during the area 
identification stage and throughout the remaining SAP and COP review 
processes. Some suggested MMS work more closely with the Federal Energy 
Regulatory Commission to avoid duplication in coastal EAs and reviews, 
while others suggested MMS work just as closely with State agencies 
during the coastal zone management processes. Other comments from 
industry suggested that renewable energy developers should also confer 
with local oil and gas project planners to ensure compatibility. Some 
commenters advocated that MMS express, in the final rule, a process for 
MMS to

[[Page 19643]]

coordinate with States, tribes, and local governments in adjusting 
mitigation and monitoring requirements.
    A common thread running through the comments on coordination and 
consultation is the desire to establish and use planning and 
coordination mechanisms to facilitate appropriate siting of OCS 
renewable energy activity and to develop meaningful priorities. Some 
commenters recommended establishing new mechanisms, and others 
suggested working with existing means. The MMS believes that such 
approaches may be accommodated under the final rule, and we are 
committed to reaching out to stakeholders, and local, state, and 
Federal government agencies as we implement the rule.
    We began outreach to officials and organizations at the national, 
regional, state, and local levels when we began the rulemaking process, 
and we have received valuable input throughout the process. We have 
participated in existing regional planning mechanisms, such as the West 
Coast Governors Agreement and the Northeast Regional Ocean Council, 
which are working toward properly balanced uses of the ocean through a 
regionally coordinated approach to relevant issues, including renewable 
energy development. We recognize and support new efforts, such as the 
one under way jointly by the States of New York, New Jersey, Delaware, 
Maryland, and Virginia to convene a Mid-Atlantic Ocean Summit, as well 
as the U.S. Offshore Wind Collaborative's proposed New England and Mid-
Atlantic States Joint Planning Agreement. We also have been working 
with individual States, localities, and tribes in the implementation of 
the MMS interim policy on resource assessment and technology testing 
and hope to build on those efforts in the establishment of joint task 
forces addressing commercial renewable energy development opportunities 
as provided under the final rule.
    Two States--New Jersey and Rhode Island--are well along in planning 
efforts that will help to determine appropriate areas of the OCS for 
development, and MMS has been an active partner with those States. Such 
efforts--supported by MMS environmental study and technical research 
initiatives, as well as the Coordinated OCS Mapping Initiative mandated 
by EPAct--will contribute significantly as MMS implements this final 
rule.
    Section 388 of EPAct 2005 requires that any activity permitted 
under this authority be carried out in a manner that provides for, 
among other things, protection of the environment, conservation of the 
natural resources of the outer continental shelf; coordination with 
relevant Federal agencies; protection of national security interests of 
the United States, prevention of interference with reasonable uses and 
functions of the exclusive economic zone, the high seas, and the 
territorial seas, and consideration of any other use of the sea or 
seabed, including, but not limited to fisheries, protection of 
biodiversity and ecosystem function, sealanes, potential siting of 
deepwater ports, or navigation. Consistent with this statutory 
direction, MMS understands that this rule will be applied in 
conjunction with interagency-led planning activities that are 
undertaken to avoid conflicts among users and maximize the economic and 
ecological benefits of the OCS. These activities will include 
multifaceted spatial planning effort that will incorporate ecosystem 
based science and stewardship along with socioeconomics, research, and 
modeling in the context for demands for other ocean uses and functions. 
It is anticipated that the Council on Environmental Quality will help 
coordinate this interagency effort, with the National Oceanic and 
Atmospheric Administration (NOAA) playing a key role, along with MMS. 
Through this type of coordination and advance planning, we expect to be 
able to speed the process of developing renewable energy projects in 
the OCS.
    This final rule is designed to be implemented both within the 
existing federal framework of multi-agency management of ocean 
activities, as well as to adapt to alternative ocean governance regimes 
that could be developed in the future. MMS will coordinate closely with 
all relevant federal and state agencies both on the implementation of 
this rule, through actualization and operation to termination and 
decommissioning, as well as on the development of any broader 
governance structure to address the many competing demands and 
interests facing our oceans.
    The MMS is responsible for ensuring that the decisions made within 
this comprehensive regulatory structure are supported by environmental 
analysis, documents, and other decision support resources. We will 
ensure that environmental analysis for OCS renewable energy proposals 
is proportional to the scope and scale of each proposal, is effectively 
tiered to programmatic NEPA documents, and efficiently incorporates 
other publicly available information by reference. The MMS will ensure 
timely and efficient coordination of the development and review of 
environmental documents with all agencies that have jurisdiction or 
special expertise to provide the decisionmakers. We will ensure that 
mitigation and monitoring information informs future decisionmaking 
processes.
    Management of renewable energy activities by MMS under this rule is 
founded on many years of experience in administering OCS energy and 
mineral programs and will be supported by extensive investigation and 
information gathering under the MMS Environmental Studies and the 
Technology Assessment and Research Programs. Both of these programs 
will play a significant role to ensure the safe and environmentally-
responsible use of OCS renewable energy resources. Several initiatives 
examine real offshore renewable energy activity experiences in Europe 
that will provide useful information in considering similar activity in 
U.S. waters as well as opportunities to form close partnerships with 
and learn from international governments and developers possessing 
offshore renewable energy expertise. As we implement our regulatory 
framework to harness these new and exciting ocean renewable energy 
opportunities, we will draw on partnerships among the Federal, state, 
and local governments entities to share critical information, and 
agency expertise, and to foster better communication between different 
arms of the Federal Government
    The MMS believes that all of these efforts and others will be 
extremely helpful in deciding where and when to pursue development of 
renewable energy on the OCS. They will help government at all levels to 
commit resources appropriately and will provide developers with 
information to facilitate proper and efficient project proposals. Most 
importantly, MMS coordination and consultation with regional, state, 
and local planning mechanisms will give those entities that will be 
most affected by renewable energy activity a proper voice in the 
development of priorities.
Reuse of Existing Facilities
    The vast majority of comments pertaining to alternate use addressed 
the concern that MMS would authorize mariculture activities on the OCS 
in the absence of express Federal mariculture legislation (such as the 
National Offshore Aquaculture Act that has been debated in Congress but 
never passed). Several commenters argued that MMS did not have the 
legal authority under subsection 8(p) of the OCS Lands Act to authorize 
Alternate Use RUEs for

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mariculture activities that involved the use of an existing OCS 
facility.
    Several commenters raised concerns regarding the apportionment of 
decommissioning liability between the holder of the alternate use 
right-of-use and easement (Alternate Use RUE) and the existing OCS 
lessee or operator. Most of these commenters argued that the Alternate 
Use RUE holder should assume liability for decommissioning the existing 
OCS facility, thereby allowing the existing lessee or operator to shed 
its decommissioning liabilities for that particular existing structure 
that is subject to the approved alternate use. Other commenters 
expressed concern that the alternate use provisions were too general in 
nature, and did not set forth specific grant terms, payment levels, or 
financial assurance commitments.
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Overview of the MMS Alternative Energy and Alternate Use Program

    To accommodate the regulations to support the Alternative Energy 
and Alternate Use Program, MMS will add a new part to subchapter B of 
title 30 of the Code of Federal Regulations (CFR). The new part 285 
will be titled Renewable Energy and Alternate Uses of Existing 
Facilities on the Outer Continental Shelf and will address the 
requirements of section 388(a) of the EPAct, which amended the OCS 
Lands Act by adding section 8(p) (43 U.S.C. 1337(p)). In the proposed 
rule the new part 285 was titled Alternative Energy and Alternate Uses 
of Existing Facilities on the Outer Continental Shelf. We are now using 
the term ``renewable energy'' instead of alternative energy because it 
is a more commonly used term and more easily understood by the industry 
and general public.

Approach to Rulemaking

    The MMS developed these regulations to provide a regulatory 
framework for leasing and managing OCS renewable energy project 
activities and authorizing activities that involve the alternate use of 
OCS Lands Act-permitted facilities. These regulations are also intended 
to encourage orderly, safe, and environmentally responsible development 
of renewable energy sources on the OCS. The MMS expects that renewable 
energy projects in the near term will involve the production of 
electricity from wind, wave, and ocean current. In the future, other 
types of renewable energy projects may be pursued on the OCS, including 
solar energy and hydrogen production projects. These regulations were 
developed to allow for a broad spectrum of renewable energy 
development, without specific requirements for each type of energy 
production.
    Following the publication of these regulations, MMS will publish a 
guidance document to support the regulations. This guidance document 
will provide more details on the program and will describe the type of 
information that we are looking for in various plan submittals. As we 
gain experience with renewable energy development on the OCS, we will 
update our regulations to include energy-resource-specific provisions 
and incorporate by reference appropriate documents.
    This final rule (30 CFR part 285) applies to all aspects of the 
Alternative Energy and Alternate Use Program except for the procedures 
applying to appeals of MMS decisions or orders, which are covered in 30 
CFR part 290, subpart A. The MMS is revising Sec.  290.2 to clarify our 
decisions on bids under this program that are exempt from the appeals 
process at 30 CFR part 290 and are covered under Sec.  285.118(c). This 
section describes the procedures for a bidder whose high bid was 
rejected to apply for reconsideration by the Director of MMS (Director) 
for renewable energy leases, ROW grants, RUE grants, or Alternate Use 
RUE.

[[Page 19647]]

Overview of the Project Development Process

General Overview

Types of Access Rights

    The MMS will issue lease access rights for commercial development 
and site assessment and technology testing. The ROW and RUE grants will 
be issued for the support of renewable energy activities. The MMS will 
use a special grant, the Alternate Use RUE, for activities that use an 
existing facility.

Commercial and Limited Leases

    The MMS will issue two types of leases: (1) Commercial or (2) 
limited. A commercial lease would convey the access and operational 
rights necessary to produce, sell, and deliver power through spot 
market transactions or a long-term power purchase agreement. A 
commercial lease provides the lessee full rights to apply for and 
receive the authorizations needed to assess, test, and produce 
renewable energy on a commercial scale over the long term 
(approximately 30 years). A commercial lease will include the right to 
a project easement, which will be issued to allow the lessee to install 
gathering, transmission, and distribution cables to transmit 
electricity; pipelines to transport other energy products (i.e., 
hydrogen); and appurtenances on the OCS, as necessary, for the full 
enjoyment of the lease. The project easement will be issued upon 
approval of the COP (for commercial leases) or GAP (for limited 
leases).
    A limited lease will convey access and operational rights for 
activities on the OCS that support the production of energy, but do not 
result in the production of electricity or other energy product for 
sale, distribution, or other commercial use exceeding a limit specified 
in the lease. In a change from the proposed rule, MMS has decided to 
permit limited leases that generate power during technology testing to 
sell that power within limits set in the lease instrument. For example, 
a limited lease could include in its terms and conditions the 
authorization to sell electricity produced during the testing of 
experimental ocean current turbine generators of up to 5 megawatts (MW) 
total installed capacity, thereby allowing the lessee to recoup some of 
the expenses entailed in its limited lease activities. Limited leases 
may be issued for site-assessment purposes only or for site assessment 
and development and testing of new or experimental renewable energy 
technology. Limited leases will be issued for a short term, 5 years. 
Under the provisions of these regulations, limited leases may be 
renewed, but they cannot be converted to commercial leases. If the 
holder of a limited lease wished to pursue commercial development on 
the OCS, the leaseholder will need to obtain a new commercial lease 
through the leasing process, as defined in these regulations.

RUE Grants and ROW Grants

    The MMS will issue RUE grants authorizing the use of a designated 
portion of the OCS to support renewable energy activities on a lease or 
other approval not issued under this part (e.g., on a State-issued 
lease).
    The MMS will issue ROW grants to allow for the construction and use 
of a cable or pipeline for the purpose of gathering, transmitting, 
distributing, or otherwise transporting electricity or other energy 
product generated or produced from renewable energy not generated on a 
lease issued under this part. An ROW grant could be used to transport 
electricity from a State lease to shore or from one State to another 
State through a transmission line that must cross the Federal OCS. An 
ROW is not the same as a project easement issued with a renewable 
energy lease under this part.

Alternate Use RUEs

    The MMS will issue an alternate use RUE for the energy- or marine-
related use of an existing OCS facility for activities not otherwise 
authorized by this subchapter or other applicable law. See preamble at 
subpart J, for more details regarding Alternate Use RUEs.

Obtaining Access Rights

    The EPAct requires MMS to award leases, ROW grants, and RUE grants 
competitively, unless we make a determination of no competitive 
interest. In conjunction with the competitive leasing process, we will 
prepare NEPA and other environmental compliance documents. The MMS will 
put forth a call for interest, designate the lease or grant area, and 
publish in the Federal Register all other notices and calls relating to 
the sale. If, after putting forth a call for interest, we determine 
that there is no competitive interest in that particular OCS area, we 
may proceed in issuing a lease or grant noncompetitively. Whether a 
company acquires a lease or grant competitively or noncompetitively, it 
must comply with all MMS lease stipulations or conditions in the grant.

Federal Compliance for the Leasing Process

    All activities permitted under this part must comply with all 
relevant Federal laws, regulations, and statutes, including, but not 
limited to, the following:
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National Environmental Policy Act Compliance

    The NEPA process helps public officials make decisions based on an 
understanding of environmental consequences and take actions that 
protect, restore, and enhance the environment. It provides the tools to 
carry out these goals by mandating that every Federal agency prepare an 
in-depth study of the impacts of ``major federal actions significantly 
affecting the quality of the human environment'' and alternatives to 
those actions, and by requiring that each agency make that information 
an integral part of its decisions. The NEPA also requires that agencies 
make a diligent effort to involve the interested and affected public 
before they make decisions affecting the environment.
    The MMS is the lead Federal agency for NEPA compliance for 
renewable energy and alternate use activities on the OCS. Some of the 
information we request under this part are in support of other Federal 
agencies' information requirements associated with compliance with the 
laws and regulations that they enforce. --

Coastal Zone Management Act Compliance

    Each coastal State has a federally-approved coastal management plan 
(CMP). In compliance with CZMA mandates found at section 307(c)(1), 
when MMS conducts a competitive lease sale for leases or grants under 
this part, MMS will determine if the sale activity is reasonably likely 
to affect any land or water use or natural resource of a State's 
coastal zone. If such effects are reasonably foreseeable, the MMS must 
submit a consistency determination (CD) to the affected State(s) at 
least 90 days before the lease sale. This CD will include a detailed 
description of the proposed activity, its expected coastal effects, and 
an evaluation of how the proposed activity is consistent with 
applicable enforceable policies in the State's CMP. If the affected 
State(s) agree with MMS's determination, MMS may proceed with the 
competitive sale. If the affected State(s) disagree, MMS will follow 
the procedures as outlined in 15 CFR part 930, subpart C.
    In their CMP, the State lists Federal licenses and permits which 
are reasonably likely to affect coastal uses or resources and requires 
a Federal consistency review. Listed activities must be conducted in a 
manner that is consistent with the enforceable policies of the State's 
CMP, and the applicant must submit a Federal consistency certification 
to the State and approving Federal agency. Also, the State may ask the 
NOAA ORCM for permission to review, for consistency, activities that 
are not listed in its CMP. If NOAA approves the request, the applicant 
is required to submit a consistency certification for the unlisted 
Federal license/permit. In compliance with CZMA mandates, MMS will not 
issue noncompetitive leases or approve noncompetitive grants or plans 
under this part if: (1) Consistency has not been conclusively presumed; 
or (2) the State objects to the applicant's consistency certification, 
and the Secretary of Commerce has not found that the permitted 
activities are consistent with the objectives of the CZMA or are 
otherwise necessary in the interest of national security. Table 1 
summarizes the NEPA and CZMA compliance requirements for leases and 
grants.

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Development Process

Developing Leases and Grants

    Once a company acquires a lease, ROW grant, or RUE grant, it must 
submit certain plans to MMS for development of the lease or grant. The 
various plans serve as a blueprint for site development, construction, 
operations, and decommissioning. The MMS has specific requirements for 
each phase of the lease, grant, and plan. The MMS will not allow 
development without proper plan submission and approval. Site 
assessment activities on a commercial lease will require the applicant 
to submit a SAP and receive MMS approval of that plan before beginning 
those activities. The SAP will undergo the appropriate NEPA reviews and 
may require either an Environmental Impact Statement (EIS) or an EA. 
The SAP must demonstrate how you will conduct the proposed activities 
to comply with relevant Federal statutes such as the CZMA, Endangered 
Species Act (ESA), Marine Mammal Protection Act (MMPA), and CWA.
    For a commercial lease, after you perform site assessment 
activities, you will be required to submit and receive MMS approval of 
a COP before you may begin any development and production activities on 
your lease. Like the SAP, the COP will undergo the appropriate NEPA 
reviews and may require either an EIS or an EA. Like the SAP, the COP 
must also comply with relevant Federal statutes.
    For limited leases, ROW grants, and RUE grants, you will be 
required to submit a GAP, which covers all activities on the lease or 
the grant including site assessment, development, operations, and 
decommissioning. Like the SAP and COP, the GAP will undergo the 
appropriate NEPA reviews and must comply with relevant Federal 
Statutes.

Revenue Sharing

    The new subsection 8(p)(2)(B) of the OCS Lands Act (43 U.S.C. 
1337(p)(2)(B)) requires payment to certain coastal States of 27 percent 
of the revenues received by the Federal Government from any projects 
under this section that are located wholly or partially within the area 
extending 3 nautical miles seaward of State submerged lands. (For ease 
of description, this 3-mile-wide area adjoining State submerged lands 
will be referred to in this preamble as the ``8(g) zone,'' a term 
widely used to refer to the identical 3-mile area described in 
subsection 8(g) of the OCS Lands Act (43 U.S.C. 1337(g)). In addition, 
when a project extends into the 8(g) zone of at least one State, 
subsection 8(p) extends eligibility for a share of the revenues to 
States with a coastline that is located within 15 miles of the 
geographic center of the project. The Secretary is required to 
establish a formula by rulemaking that provides for the equitable 
distribution of payments to eligible States based on the proximity of 
each State's coastline to the geographic center of the project.

Operations

    The regulations that address operations cover environmental 
management, safety management, inspections, facility assessments, and 
decommissioning. The regulations on operations are designed to ensure 
safety and prevent or minimize the likelihood of harm or damage to the 
marine and coastal environments. The structure of the regulations is 
based on adaptive management. The company will be required to monitor 
activities and demonstrate that its performance satisfies specified 
standards in its approved plans. In addition, the

[[Page 19653]]

company will be required to comply with regulations regarding air 
quality, safety, maintenance and shutdowns, equipment failure, adverse 
environmental effects, inspections, facility assessments, and incident 
reporting.

Alternate Use of Existing Facilities

    These regulations establish general requirements for how MMS will 
consider proposals for activities that involve the alternate use of 
existing OCS facilities. This includes general provisions that explain 
how we will approve and regulate such alternate use activities on the 
OCS. We will authorize such activities through the issuance of an 
Alternate Use RUE.
    These regulations explain how applicants can request an Alternate 
Use RUE; how MMS will decide whether to issue Alternate Use RUEs; how 
Alternate Use RUEs will be competitively issued (if we determine that 
competitive interest exists); the terms of such authorizations; 
required payments to MMS; necessary financial assurance; other 
administrative issues such as assignment, suspension, and termination; 
and decommissioning of approved alternate use structures.
    In addition to the provisions in subpart J, MMS will make 
associated revisions to our existing oil and gas decommissioning 
regulations found in 30 CFR part 250, subpart Q, to clarify the oil and 
gas platform owner's obligations for decommissioning in the event we 
approve alternate uses of the platform.

Subpart-by-Subpart Discussion

Part 285--Renewable Energy And Alternate Uses Of Existing Facilities On 
The Outer Continental Shelf

Subpart A--General Provisions
Subpart B--Issuance of OCS Renewable Energy Leases
Subpart C--Rights-of-Way Grants and Rights-of-Use and Easement 
Grants for Renewable Energy Activities
Subpart D--Lease and Grant Administration
Subpart E--Payments and Financial Assurance Requirements
Subpart F--Plans and Information Requirements
Subpart G--Facility Design, Fabrication, and Installation
Subpart H--Environmental and Safety Management, Inspections, and 
Facility Assessments for Activities Conducted Under SAPs, COPs and 
GAPs
Subpart I--Decommissioning
Subpart J--Rights of Use and Easements for Energy and Marine-Related 
Activities Using Existing OCS Facilities

Subpart A--General Provisions

Overview

    Subpart A establishes MMS's authority and the purpose for the 
regulations. It also addresses the general requirements that apply to 
all activities regulated under this part, for example, the 
qualifications for holding leases, ROW grants, and RUE grants on the 
OCS, and the appeals process. The definitions for these regulations are 
also in subpart A.

Approach

    The OCS Lands Act requires MMS to ensure that the activities 
permitted under these regulations are carried out in a manner that 
provides for safety, protection of the environment, oversight, and 
enforcement (43 U.S.C. 1337(p)(4)). This subpart lays the foundation 
for these responsibilities. The responsibilities of the lessee, 
applicant, operator, or holder of a ROW grant, RUE grant, or Alternate 
Use RUE grant are based on ensuring that projects under these 
regulations are designed and conducted in a safe and environmentally 
sound manner.
    Departures from the regulations were selected as a way of allowing 
MMS to maintain flexibility within the program and to be able to adapt 
to this new and changing industry. Requirements and qualifications for 
lessees and grant holders are based on section 8 of the OCS Lands Act 
and are designed to deter nuisance and speculative interference with 
the leasing process. Appeal rights are modeled after those established 
for offshore oil and gas operations.
    This subpart provides for participation of State and local 
governments in task forces or other joint planning agreements with MMS. 
The joint planning provision is modeled after Sec.  281.13 of this 
subchapter, which pertains to the use of task forces when considering 
leasing of minerals in the OCS other than oil, gas, and sulphur. We 
envision that such task forces could be useful and applicable to any 
phase of the OCS Alternative Energy Program, from preliminary studies 
and lease sale formulation, through site assessment and construction, 
to decommissioning. We may invite any affected State Governor or local 
government executive to join in establishing a task force or other 
joint planning or coordination agreement if we are considering to offer 
or issue leases (or grants) under this part. Participation in a task 
force will give the parties opportunities to contribute to the planning 
process and access to nonproprietary information. The task force or 
other such arrangements will be constituted and conducted, as agreed to 
by the participants, consistent with Federal law and these regulations. 
The task force may make recommendations and may be requested to conduct 
or oversee research, studies, or reports. However, MMS is not limited 
to using just task forces for coordination and consultation. Throughout 
the lease, grant issuance, and project development processes, MMS will 
work with affected State, local, and tribal governments and other 
planning and oversight organizations.

Section-by-Section Discussion of Subpart A

Authority (Sec.  285.100)

    This section restates MMS's authority to issue regulations and 
oversee access and development on the OCS for renewable energy and 
alternate use of existing facilities. The authority statement is 
included to inform the affected public and other interested parties of 
the basis for establishing these regulations. The authority for these 
regulations was granted to the Secretary of the Interior in amendments 
to subsection 8 of the OCS Lands Act (43 U.S.C. 1337), as set forth in 
section 388(a) of the EPAct (Pub. L. 109-58).
    With regard to hydrokinetic projects on the OCS, MMS possesses the 
exclusive authority to issue leases, easements, and rights-of-way for 
such projects, but will not duplicate the operational approvals granted 
by FERC when it issues licenses and exemptions for the construction and 
operation of hydrokinetic projects on the OCS.
    The MMS revised this section from the NPR to state that the 
Secretary of the Interior delegated to MMS the authority to regulate 
activities under section 388(a) of the EPAct. These regulations will 
address activities that: (a) Produce or support production, 
transportation, or transmission of energy from sources other than oil 
and gas; or (b) use, for energy-related purposes or for other 
authorized marine-related purposes, facilities currently or previously 
used for activities authorized under the EPAct.

What is the purpose of this part? (Sec.  285.101)

    This section describes MMS's objectives for this rule. Our 
objectives include: (1) Establishing procedures for issuance of leases, 
ROW grants, and RUE grants and for administration of operations for 
activities permitted under this part; (2) informing applicants and 
third parties of their obligations under this part; and (3) ensuring 
that these

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